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R v R & S; ex parte

R v R & S; ex parte

Case [1999] QCA 181 28 May 1999

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IN THE COURT OF APPEAL [1999] QCA 181
SUPREME COURT OF QUEENSLAND
C.A. No. 390 of 1998 C.A. No. 391 of 1998

Brisbane
[R v. R & S; ex parte A-G (Qld)]
THE QUEEN
v.
R

- and -
S
Respondents
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

Appellant
McMurdo P
White J
Muir J

Judgment delivered 28 May 1999
Separate reasons for judgments of each member of the Court; each concurring as to the orders made.
ATTORNEY-GENERAL’S APPEAL ALLOWED IN RESPECT OF EACH RESPONDENT. SENTENCES IMPOSED BELOW SET ASIDE. IN LIEU THEREOF EACH RESPONDENT SENTENCED TO 11 YEARS IMPRISONMENT IN RESPECT OF COUNT 1 AND CONVICTION IN RESPECT OF THAT OFFENCE DECLARED TO BE A CONVICTION OF A SERIOUS VIOLENT OFFENCE PURSUANT TO S.161B(1) OF THE PENALTIES AND SENTENCES ACT 1992; IN RESPECT OF COUNT 2 EACH RESPONDENT SENTENCED TO 4 YEARS IMPRISONMENT CONCURRENT WITH THE SENTENCE IMPOSED FOR COUNT 1. NO PENALTY IMPOSED IN RESPECT OF COUNTS 3 TO 12. STATE THAT BETWEEN 29 DECEMBER 1997 AND 20 OCTOBER 1998 THE RESPONDENTS WERE IN CUSTODY IN RESPECT OF THESE OFFENCES AND NO OTHERS. DECLARE THAT 296 DAYS IN IMPRISONMENT ALREADY SERVED UNDER THE SENTENCES.

CATCHWORDS:

CRIMINAL LAW - Attorney-General’s appeal against sentence - Torture - Cruelty - Grievous Bodily Harm - Assault - Deprivation of Liberty - s. 16 Criminal Code - Whether declaration pursuant to s.161B(3) Penalties and Sentences Act 1992 should have been made - Whether sentence manifestly inadequate.
De Simoni v The Queen (1981) 147 CLR 383
Malvaso v The Queen (1989) 168 CLR 227
Pearce v The Queen (1998) 72 ALJR 1416
Pennisi v Wyvill and O’Sullivan (1994) 74 A Crim R 168
R v Tricklebank [1994] 1 Qd R 330
R v Tait [1979] 46 FLR 386
R v Conquest; ex parte Attorney-General
CA No. 395 of 1995, 19 December 1995.
R v Melano; ex parte Attorney-General [1995] 2 Qd R 186
R v Elhusseini [1988] 2 Qd R 442
R v Goulden (1991) 53 A Crim R 404
R v Butcher [1986] VR 43
R v Chivers [1993] 1 Qd R 432
R v Marshall [1993] 2 Qd R 307
R v G CA No 486 of 1998, 19 March 1999

Counsel: Mr D Bullock for the appellant.
Mr A J Rafter for the respondent S.
Mr C J Clark for the respondent R.
Solicitors: Director of Public Prosecutions (Queensland) for the appellant.
Kimball Wood Solicitors for the respondent S.
Michael Lynch & Associates for the respondent R.
Hearing Date: 19 March 1999
REASONS FOR JUDGMENT - McMURDO P
Judgment delivered 28 May 1999
1 I have had the benefit of reading the reasons for judgment of White J in which the facts have been comprehensively set out. I am grateful for her identification of the significant issues in this case.
2 The respondents pleaded guilty to torture, cruelty to a child under 16 years, two counts of grievous bodily harm, three counts of assault occasioning bodily harm and five counts of deprivation of…

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 R & S; ex parte

Details

AGLC: R v R & S; ex parte [1999] QCA 181
Case: [1999] QCA 181
Decision Date: 28/05/1999

CaseChat Overview and Summary

The parties involved in this case were R and S, who had been convicted of various criminal offences including torture, cruelty, grievous bodily harm, assault, and deprivation of liberty. The Attorney-General of Australia appealed against the sentence imposed by the court, arguing that it was manifestly inadequate. The case was heard by the High Court of Australia. The central issue before the court was whether the sentence imposed by the lower court was manifestly inadequate and whether a declaration should have been made pursuant to section 161B(3) of the Penalties and Sentences Act 1992. The court had to consider the nature and severity of the crimes committed, the culpability of the offenders, and the principles of sentencing in determining whether the sentence was appropriate.

In considering the appeal, the court examined the evidence presented in the case, including the nature and extent of the offences committed. The court noted that the crimes involved were of an extremely serious nature, with the victims subjected to prolonged and brutal torture and abuse. The court also considered the culpability of the offenders, who had shown a clear disregard for the rights and well-being of their victims. The court concluded that the sentence imposed by the lower court was manifestly inadequate and that a declaration should have been made pursuant to section 161B(3) of the Penalties and Sentences Act 1992. The court emphasised the importance of ensuring that sentences reflect the gravity of the crimes committed and the need to protect the community from further offending.

The court found that the sentence imposed was manifestly inadequate and did not adequately reflect the severity of the crimes committed. The court noted that the sentence did not provide sufficient punishment or deterrence, and did not adequately reflect the harm caused to the victims. The court concluded that the sentence was manifestly inadequate and ordered that a declaration be made pursuant to section 161B(3) of the Penalties and Sentences Act 1992. The court also ordered that the offenders be re-sentenced, with appropriate consideration given to the nature and severity of the crimes committed, the culpability of the offenders, and the principles of sentencing. The final orders of the court emphasised the importance of ensuring that sentences reflect the gravity of the crimes committed and the need to protect the community from further offending.

Orders