R v RAC

Case [2008] QCA 185 11 July 2008

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SUPREME COURT OF QUEENSLAND

CITATION:

R v RAC [2008] QCA 185

PARTIES:

R
v
RAC
(applicant/appellant)

FILE NO/S:

CA No 5 of 2008
DC No 214 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

11 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2008

JUDGES:

McMurdo P, Muir JA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application for leave to appeal granted1.

Appeal allowed2.

Sentence imposed at first instance set aside3.

On each count of rape the applicant is sentenced to eight years imprisonment and declared convicted of a serious violent offence4.

On each count of indecent dealing with a circumstance of aggravation the applicant is sentenced to five years imprisonment5.

Pursuant to s 161 of the Penalties and Sentences Act 1992 (Qld), it is declared that 458 days spent in pre-sentence custody between 12 September 2006 and 13 December 2007 be deemed time already served under the sentence6.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – applicant convicted on plea of guilty to eight counts of rape and two counts of indecent dealing with a circumstance of aggravation – victim was the applicant’s six year old step son – judge sentenced the applicant to 10 years imprisonment on each count and declared the applicant convicted of a serious violent offence – applicant extensively co-operated with the authorities, including admitting to then unknown offences – applicant pleaded guilty to ex officio indictment – whether sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), Pt 9A

AB v R (1999) 198 CLR 111; [1999] HCA 46, cited
R v BAY [2005] QCA 427, considered
R v SAK [2004] QCA 379, considered
R v Robinson [2007] QCA 99, considered
R v D[2003] QCA 88, considered
R v Luke, unreported, Court of Criminal Appeal, Qld, CA No 342 of 1986, 4 March 1987, considered
R v S [1999] QCA 311, considered

COUNSEL:

J D Henry SC, with J C Trevino for the applicant/appellant
V P Keegan for the respondent

SOLICITORS:

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

McMURDO P: On 14 May 2007 the applicant pleaded guilty to an ex officio indictment charging eight counts of rape and two counts of indecent dealing with circumstances of aggravation. The victim was his six year old step-son. The applicant was sentenced to 10 years imprisonment on each count. He contends that the sentence was manifestly excessive.

The facts

An agreed set of facts was tendered at sentence and set out the following matters. The applicant had been in an intimate relationship with the complainant’s mother since she was three months pregnant with the complainant.…

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 RAC

Details

AGLC: R v RAC [2008] QCA 185
Case: [2008] QCA 185
Decision Date: 11 July 2008

CaseChat Overview and Summary

The case of R v RAC involved an appeal against sentence by the convicted person, who had pleaded guilty to eight counts of rape and two counts of indecent dealing with a circumstance of aggravation. The victim in this case was the applicant's six-year-old stepson. The judge at first instance sentenced the applicant to 10 years imprisonment on each count and declared the applicant convicted of a serious violent offence. The applicant had extensively cooperated with the authorities, including admitting to then unknown offences. The applicant’s appeal focused on whether the sentence imposed was manifestly excessive.

The central legal issue in this appeal was whether the sentence imposed by the trial judge was manifestly excessive in light of the circumstances of the case. The applicant argued that the sentence was too severe, considering his cooperation with authorities and the plea of guilty. The appeal court had to determine whether the sentence was disproportionate to the crime and the circumstances of the case.

The court found that the sentence imposed at first instance was manifestly excessive. The court noted the applicant's cooperation with authorities and the plea of guilty, which were significant mitigating factors. The court set aside the original sentence and imposed a new sentence of eight years imprisonment for each count of rape and five years imprisonment for each count of indecent dealing with a circumstance of aggravation. The court also declared that 458 days spent in pre-sentence custody be deemed time already served under the sentence.

Orders

Orders of the court

Application for leave to appeal granted1.

Appeal allowed2.

Sentence imposed at first instance set aside3.

On each count of rape the applicant is sentenced to eight years imprisonment and declared convicted of a serious violent offence4.

On each count of indecent dealing with a circumstance of aggravation the applicant is sentenced to five years imprisonment5.

Pursuant to s 161 of the Penalties and Sentences Act 1992 (Qld), it is declared that 458 days spent in pre-sentence custody between 12 September 2006 and 13 December 2007 be deemed time already served under the sentence6.

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.

Actions

Citations

R v RAC [2008] QCA 185

Most Recent Citation

R v TS [2008] QCA 370

Cases Citing This Decision

R v HCX [2025] QCA 100
Citation 1 (Para 13)

…regard particular reliance was placed on R v Daphney [2010] QCA 236; R v D [2003] QCA 88; R v Stoian [2012] QCA 41; R v KAC [2010] QCA 39 and R v RAC [2008] QCA 185.…
R v MEC [2024] QCA 203
Citation 2 (Para 3)

…The trial judge noted the similarity between the appellant’s offending and the offending in R v RAC [2008] QCA 185. Even though RAC had pleaded guilty, the trial judge noted the observation in RAC (at [39]) by McMurdo P (with whom Muir JA and Cullinane J agreed) that the sentencing judge was right to consider, if…
R v Oad [2024] QCA 189
Citation 3 (Para 15)

…riod and was persistent. There was a significant impact on the complainant. The parties relied on the comparable authorities, including R v RAC [2008] QCA 185, R v BBP [2009] QCA 114, R v PAM [2011] QCA 36, R v Dendle [2019] QCA 194, and R v EP [2020] QCA 109. Deterrence, denunciation and community protection wer…
R v EP [2020] QCA 109
Citation 4 (Para 15)

…ve been sentenced to two years for indecent assault, not nine years for rape (count 3). [34] R v D [2003] QCA 88; R v MBJ [2010] QCA 211; R v RAC [2008] QCA 185; R v KAJ; Ex parte Attorney-General (Qld) [2013] QCA 118. [35]Appellant’s outline at p 5. Respondent’s submissions on sentence…
R v CBJ [2013] QCA 258
Citation 5 (Para 30)

…aphically illustrated by an audio recording (covertly made by police when searching for evidence of a different offence): see R v RAC [2008] QCA 185 at [30]. It was in that context that Keane JA observed in Robinson , in [40], that the authorities supported a sentence of imprisonment in a case of that kind of off…
R v MBJ [2010] QCA 211
Citation 6 (Para 1)

…e penetration in the former. Other distinguishing matters are the slightly older age of the complainant and her lesser injuries. [1][2003] QCA 88. [2][2008] QCA 185. [3][2010] QCA 39. [4][2004] QCA 394. [5][2010] QCA 40.…
R v NK [2008] QCA 403
Citation 7 (Para 1)

…l abuse was graphically illustrated by an audio recording (covertly made by police when searching for evidence of a different offence): see R v RAC [2008] QCA 185 at [30]. It was in that context that Keane JA observed in Robinson , in paragraph [40], that the authorities supported a sentence of imprisonment in a…
R v TS [2008] QCA 370
Citation 8 (Para 1)

…hen searching for evidence of a different offence. That significant matter is not detailed in R v Robinson itself, but it is described in R v RAC [2008] QCA 185 in the judgment of McMurdo P at [30]. Furthermore, as McMurdo P pointed out in paragraph [31] of her Honour’s reasons, the judge who sentenced Robinson f…

See all citing cases →

Cases Cited

R v Robinson [2007] QCA 99
Citation 1 (Para 1)

…rs of mitigation, especially the ex officio plea of guilty, it's submitted that a sentence between the 12 to 14 year mark would be appropriate". [1][2007] QCA 99. [2][2003] QCA 88. [3]Unreported, Court of Criminal Appeal, Qld, CA No 342 of 1986, 4 March 1987. [4][1999] QCA 311.…
R v BAY [2005] QCA 427
Citation 2 (Para 1)

…tencing judge’s starting point of 12 years imprisonment after a trial was too high. He has referred us to R v S , R v BAY[5] and R v SAK . [6] [5][2005] QCA 427. [6][2004] QCA 379.…
R v SAK [2004] QCA 379
Citation 3 (Para 1)

…rting point of 12 years imprisonment after a trial was too high. He has referred us to R v S , R v BAY[5] and R v SAK . [6] [5][2005] QCA 427. [6][2004] QCA 379.…
R v D [2003] QCA 88
Citation 4 (Para 1)

…especially the ex officio plea of guilty, it's submitted that a sentence between the 12 to 14 year mark would be appropriate". [1][2007] QCA 99. [2][2003] QCA 88. [3]Unreported, Court of Criminal Appeal, Qld, CA No 342 of 1986, 4 March 1987. [4][1999] QCA 311.…
R v S [1999] QCA 311
Citation 5 (Para 1)

…r mark would be appropriate". [1][2007] QCA 99. [2][2003] QCA 88. [3]Unreported, Court of Criminal Appeal, Qld, CA No 342 of 1986, 4 March 1987. [4][1999] QCA 311.…
AB v The Queen [1999] HCA 46
Citation 6

…dictment – whether sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), Pt 9A AB v R (1999) 198 CLR 111; [1999] HCA 46, cited R v BAY [2005] QCA 427, considered R v SAK [2004] QCA 379, considered R v Robinson [2007] QCA 99, considered R v D [2003] QCA 88, considered R v Luke , unreported, Co…

Legislation Cited

Corrective Services Act 2006 (Qld) 182(2)(a)
1 mention (from Para 1)
Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	R v RAC [2008] QCA 185
PARTIES:	R v RAC (applicant/appellant)
FILE NO/S:	CA No 5 of 2008 DC No 214 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	11 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	27 May 2008
JUDGES:	McMurdo P, Muir JA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application for leave to appeal granted1. Appeal allowed2. Sentence imposed at first instance set aside3. On each count of rape the applicant is sentenced to eight years imprisonment and declared convicted of a serious violent offence4. On each count of indecent dealing with a circumstance of aggravation the applicant is sentenced to five years imprisonment5. Pursuant to s 161 of the Penalties and Sentences Act 1992 (Qld), it is declared that 458 days spent in pre-sentence custody between 12 September 2006 and 13 December 2007 be deemed time already served under the sentence6.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – applicant convicted on plea of guilty to eight counts of rape and two counts of indecent dealing with a circumstance of aggravation – victim was the applicant’s six year old step son – judge sentenced the applicant to 10 years imprisonment on each count and declared the applicant convicted of a serious violent offence – applicant extensively co-operated with the authorities, including admitting to then unknown offences – applicant pleaded guilty to ex officio indictment – whether sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), Pt 9A AB v R (1999) 198 CLR 111; [1999] HCA 46, cited R v BAY [2005] QCA 427, considered R v SAK [2004] QCA 379, considered R v Robinson [2007] QCA 99, considered R v D[2003] QCA 88, considered R v Luke, unreported, Court of Criminal Appeal, Qld, CA No 342 of 1986, 4 March 1987, considered R v S [1999] QCA 311, considered
COUNSEL:	J D Henry SC, with J C Trevino for the applicant/appellant V P Keegan for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent