R v Q - [2003] QCA 114

SUPREME COURT OF QUEENSLAND

CITATION:

R v Q [2003] QCA 114

PARTIES:

R
v
Q
(applicant)

FILE NO/S:

CA No 397 of 2002
DC No 71 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maryborough

DELIVERED EX TEMPORE ON:

17 March 2003

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2003

JUDGES:

Williams and Jerrard JJA and White J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant convicted of incest – where applicant in ill health – where sentenced to six years’ imprisonment with a recommendation that he be eligible for post prison community based release after two years – whether a suspended sentence should have been imposed in order to gain greater certainty of release

R v BG (2000) 111 A Crim R 302; [2000] QCA 42, followed

COUNSEL:

K M McGinness for the applicant
M J Copley for the respondent

SOLICITORS:

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

WILLIAMS JA: The applicant pleaded guilty on 22 October 2002 in the District Court to 12 counts of incest and eight counts of indecent dealing with a girl under 16 years.

The offences occurred between January 1977 and April 1982. On his plea of guilty, he was sentenced to imprisonment for a period of six years and a recommendation was made that he be eligible for post prison community based release after serving two years. The applicant now seeks leave to appeal against that sentence.

The complainant girl, the applicant's daughter, was 10 years old when the first act of incest occurred. On that occasion, there was a degree of overbearing or force to the extent that the applicant placed his hand over the girl's mouth and told her not to tell anyone.

It seems as though the conduct occurred on a regular basis over the period in question. On a number of occasions the girl indicated in quite clear terms that she did not wish him to have intercourse with her. Notwithstanding that, the applicant persisted in his course of conduct.

In 1982, the girl complained to her mother, and that resulted in the matter being investigated by the police. It seems that at that stage the applicant did make a full admission to the police of the offences in question. But the family decided not to make any formal complaint but agreed to undertake counselling. It appears that all members of the family took part in that counselling.

It is clear, however, that the complainant has suffered quite considerable distress as a result of the applicant's conduct over the four year period in question. Against that background, it is not surprising that later, when she was aged 34, she…

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 Q

Details

AGLC: R v Q [2003] QCA 114
Case: [2003] QCA 114
Decision Date: 17 March 2003

CaseChat Overview and Summary

In the case of R v Q, the applicant, convicted of incest, sought leave to appeal against his sentence of six years’ imprisonment, with a recommendation for post-prison community-based release eligibility after two years. The applicant argued that a suspended sentence should have been imposed to provide greater certainty of release. The appeal focused on the appropriateness of the sentence given the applicant's ill health and the need for medical treatment outside of prison. The court had to consider whether the sentence was unjust or excessive, taking into account the applicant’s health and the likelihood of his release.

The court examined the principles governing sentencing in cases of incest, the significance of the applicant's health, and the criteria for imposing a suspended sentence. It was crucial to determine if the original sentence was unjust or inappropriate, and if the court had sufficient grounds to substitute a different sentence. The applicant's health was a key factor, as it could affect the severity of the punishment and the likelihood of rehabilitation. The court also considered whether a suspended sentence would offer greater certainty of release, aligning with the applicant's desire for medical treatment outside of prison.

The court found that the sentence was neither unjust nor inappropriate, given the applicant's health and the nature of the offence. The decision to recommend community-based release after two years was deemed reasonable, providing the applicant with an opportunity for rehabilitation and treatment. The court held that the original sentence was suitable, and there was no basis to substitute a different sentence. Therefore, the application for leave to appeal was refused, upholding the original sentence imposed by the lower court.

No further orders were made, and the applicant's appeal against the sentence was dismissed.

Orders

Orders of the court

Application for leave to appeal against sentence refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Q [2003] QCA 114
PARTIES:	R v Q (applicant)
FILE NO/S:	CA No 397 of 2002 DC No 71 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maryborough
DELIVERED EX TEMPORE ON:	17 March 2003
DELIVERED AT:	Brisbane
HEARING DATE:	17 March 2003
JUDGES:	Williams and Jerrard JJA and White J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant convicted of incest – where applicant in ill health – where sentenced to six years’ imprisonment with a recommendation that he be eligible for post prison community based release after two years – whether a suspended sentence should have been imposed in order to gain greater certainty of release R v BG (2000) 111 A Crim R 302; [2000] QCA 42, followed
COUNSEL:	K M McGinness for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent