R v Postchild

[2013] QCA 227

SUPREME COURT OF QUEENSLAND

CITATION:

R v Postchild [2013] QCA 227

PARTIES:

R
v
POSTCHILD, Jay Michael Henry
(applicant)

FILE NO/S:

CA No 44 of 2013
DC No 36 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Kingaroy

DELIVERED ON:

20 August 2013

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2013

JUDGES:

Chief Justice and Holmes and Gotterson JJA
Separate reasons for judgment of each member of the Court, Chief Justice and Gotterson JA concurring as to the order made, Holmes JA dissenting

ORDER:

The application is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after a trial of the rape of his girlfriend and sentenced to six years imprisonment – where the applicant was on parole at the time of committing the offence – where the applicant's counsel at first instance conceded that a sentence of six years imprisonment was within the sentencing range – whether that concession was correctly made – whether the sentence imposed was manifestly excessive

Child Protection (Offender Reporting) Act 2004 (Qld)
Penalties and Sentences Act 1992 (Qld), s 147

R v Flew[2008] QCA 290, cited
R v Jackson[2011] QCA 103, cited
R v Pickup[2008] QCA 350, considered
R v Stephens; ex parte Attorney-General (Qld) (1994) 76 A Crim R 5; [1994] QCA 507, considered

COUNSEL:

S Hamlyn-Harris for the applicant
M R Byrne QC for the respondent

SOLICITORS:

Fisher Dore lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. CHIEF JUSTICE:  I am grateful to Holmes JA for setting out, in her reasons for judgment, the relevant circumstances and analysis of other relevant sentencing situations.

2. I am not persuaded that the sentence of six years imprisonment for the offence of rape (with parole eligibility as at 5 June 2015) was manifestly excessive.

3. The sentencing Judge reasonably described the offence as involving a brutal act in which the applicant treated the complainant as an object for his own sexual gratification.  The brutality was distinctively illustrated, even apart from the consideration that the applicant proceeded in the context of the complainant’s vehemently expressed objection, by his gagging and binding her with tape, and injuring her.  He was on parole at the time.

4. Allowing also for his substantial previous criminal history, which included a six month suspended sentence for carnal knowledge (which he was subsequently ordered to serve although given immediate parole), and property offences which attracted approximately a year’s imprisonment fully suspended, I consider that his Counsel at the sentencing was right to acknowledge that an appropriate range of imprisonment extended to six years.

5. I repeat two observations from previous cases:

1.          “The circumstance that the sentence which was imposed accorded with the submission put to the sentencing judge on the offender’s behalf means that an assertion that the sentence imposed was manifestly excessive could be upheld only in…