R v Pont - [2002] QCA 456

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pont [2002] QCA 456

PARTIES:

R

v

PONT, Elles John

(applicant)

FILE NO/S:

CA No 213 of 2002
DC No 1910 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EXTEMPORE ON:

28 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

28 October 2002

JUDGES:

de Jersey CJ, McPherson JA, Mullins J
Separate reasons for judgment of each member of the court, each concurring as to the order made

ORDER:

Application for leave to appeal refused

CATCHWORDS:

CRIMINAL LAW - JURISDICTION - PRACTICE AND PROCEDURE - JUDGMENT - PUNISHMENT - sentence - factors - totality - convicted of two counts of rape - whether sentence imposed for similar offences should reduce this sentence

COUNSEL:

J D Farmer for the applicant
BG Campbell for the Crown

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: This is an application for leave to appeal against sentence arising out of a conviction at trial in the District Court at Brisbane, where the applicant was sentenced to concurrent terms of imprisonment of eight years on each of two counts of rape. There was no recommendation for parole. The offences in respect of which those sentences were imposed were committed between January 1968 and September 1971. That was a long time before the trial, and the sentencing took place at some time during the course of this year.

A number of grounds have been advanced in favour of the application. They include the personal circumstances of the applicant; in particular, that he was 63 years old at the time of sentencing; his health was not good; he had high blood pressure and depression. He is said to have been affected significantly by the experience of seeing or knowing of a person committing suicide at a time when the applicant was a train driver. He was partly disabled by back, knee and elbow pain and so on.

The applicant, it said in support of his application, did not occupy a position of trust with the complainant. Had it been so his offence would have been more serious; but for my part I hardly think it is a matter in his favour in the merits of this matter. Certainly, he used no violence and inflicted no physical injury, and, as has already been mentioned, there has been a long delay in reporting and prosecuting the offence.

The learned Judge considered all these matters and took them into account. In addition to those circumstances, the applicant, it must be noted, was dealt with in July 2000 for other sexual offences which occurred roughly during the same time period as the two rapes with which we are concerned here.

The two rape charges were, in fact, part of an indictment containing a total of 14 counts to which, in respect of those other 12 counts, the applicant pleaded guilty on another occasion and was then sentenced to three…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Pont

Details

AGLC: R v Pont [2002] QCA 456
Case: [2002] QCA 456
Decision Date: 28 October 2002

CaseChat Overview and Summary

The matter of R v Pont was heard in the Court of Appeal. The appellant, Pont, was convicted of two counts of rape and sentenced to imprisonment. Pont sought leave to appeal against his sentence, arguing that the sentence imposed for similar offences should have reduced his sentence. The central issue before the Court of Appeal was whether the sentence imposed for the similar offences should have influenced the overall sentence for the two counts of rape. The Court needed to determine the appropriate weight to give to the totality principle in sentencing, particularly in relation to similar offences.

The Court of Appeal considered the principles of sentencing and the role of the totality principle. The Court emphasised that while the totality principle is an important consideration in sentencing, it is not an absolute rule. The Court held that the sentence imposed for similar offences is one of many factors to consider when determining an appropriate sentence. The Court found that the trial judge had appropriately exercised their discretion in imposing the sentence, taking into account all relevant factors, including the totality principle. The Court of Appeal held that the trial judge's approach was not erroneous and dismissed the application for leave to appeal.

The Court of Appeal concluded that the trial judge had not erred in the imposition of the sentence for the two counts of rape. The Court found that the sentence was proportionate to the gravity of the offences and took into account all relevant factors. The Court emphasised that the totality principle is a consideration in sentencing but is not determinative. The Court held that the trial judge had appropriately exercised their discretion in imposing the sentence and dismissed the application for leave to appeal.

Orders

Orders of the court

Application for leave to appeal refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Pont [2002] QCA 456
PARTIES:	R v PONT, Elles John (applicant)
FILE NO/S:	CA No 213 of 2002 DC No 1910 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EXTEMPORE ON:	28 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	28 October 2002
JUDGES:	de Jersey CJ, McPherson JA, Mullins J Separate reasons for judgment of each member of the court, each concurring as to the order made
ORDER:	Application for leave to appeal refused
CATCHWORDS:	CRIMINAL LAW - JURISDICTION - PRACTICE AND PROCEDURE - JUDGMENT - PUNISHMENT - sentence - factors - totality - convicted of two counts of rape - whether sentence imposed for similar offences should reduce this sentence
COUNSEL:	J D Farmer for the applicant BG Campbell for the Crown
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent