R v RAD - [2008] QCA 305

SUPREME COURT OF QUEENSLAND

CITATION:

R v RAD [2008] QCA 305

PARTIES:

R
v
RAD
(applicant/appellant)

FILE NO/S:

CA No 166 of 2008
DC No 233 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

3 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

19 September 2008

JUDGES:

Mackenzie AJA, Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Leave to appeal against sentence granted;

2.   Appeal allowed;

Substitute in lieu of the sentence imposed, a sentence in respect of each count of two years imprisonment to be suspended after eight months and fix an operational period of three years3.

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 – where applicant convicted on own plea of guilty of eight counts of indecent treatment of a child under 12, under care – where applicant sentenced to imprisonment for four years on each count, to be served concurrently, with parole eligibility after one year – whether sentence imposed was manifestly excessive – whether sufficient consideration was given to the applicant’s remorse, plea of guilty and the information volunteered

AB v The Queen (1999) 165 ALR 298; [1999] HCA 46, applied
R v Craig; ex parte A-G (Qld)[2002] QCA 414 cited
R v Hamstead[1999] QCA 33 considered
R v M[1995] QCA 394 considered
R v MAO;ex parte A-G [2006] QCA 99 considered
R v P [2001] QCA 130 considered
R v Quick; ex parte A-G (Qld) (2006) 166 A Crim R 588; [2006] QCA 477 cited
R v SAQ [2002] QCA 221 considered
R v Schirmer[1995] QCA 242 considered

COUNSEL:

J R Hunter for the applicant/appellant
R Pointing for the respondent

SOLICITORS:

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

MACKENZIE AJA: I agree with the orders proposed by Cullinane J for the reasons given by him.

CULLINANE J: The applicant seeks leave to appeal against sentences of four years imposed in respect of each of eight offences, to which he pleaded guilty at the District Court at Brisbane on 13 June 2008. The Court fixed an eligibility for parole date of 13 June 2009, that is after one year. The terms were to be served concurrently.

The offences all involved a young boy who was born on 7 November 2001 and were all committed in the early hours of Friday 8 June 2007. The complainant is the child of the applicant’s partner.

More particularly the offences to which he pleaded guilty were:

(a) three counts of unlawfully and indecently dealing with the complainant, a child under 16 years with a circumstance of aggravation being that the complainant was under 12 years;

(b) two counts of procuring a child under the age of 16 years to…

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 RAD

Details

AGLC: R v RAD [2008] QCA 305
Case: [2008] QCA 305
Decision Date: 3 October 2008

CaseChat Overview and Summary

In the matter of R v RAD, the applicant, who had pleaded guilty to eight counts of indecent treatment of a child under 12, under their care, sought leave to appeal against the sentence imposed by the primary court. The applicant was sentenced to imprisonment for four years on each count, to be served concurrently, with parole eligibility after one year. The applicant argued that the sentence was manifestly excessive and that the sentencing judge did not give sufficient consideration to their remorse, plea of guilty, and the information volunteered.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive and whether sufficient consideration was given to the mitigating factors presented by the applicant. The court needed to determine if the sentence was appropriate in the circumstances of the case, and if not, what an appropriate sentence would be.

The court found that the sentence imposed was manifestly excessive and that insufficient consideration was given to the applicant's remorse, plea of guilty, and the information volunteered. The court considered the nature and circumstances of the offences, the applicant's background, and the principles of sentencing. The court held that an appropriate sentence would be two years imprisonment to be suspended after eight months on each count, with an operational period of three years. The court allowed the appeal and substituted the sentence imposed by the primary court with the new sentence.

Orders

Orders of the court

1. Leave to appeal against sentence granted;

2. Appeal allowed;

Substitute in lieu of the sentence imposed, a sentence in respect of each count of two years imprisonment to be suspended after eight months and fix an operational period of three years3.

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 RAD [2008] QCA 305
PARTIES:	R v RAD (applicant/appellant)
FILE NO/S:	CA No 166 of 2008 DC No 233 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	3 October 2008
DELIVERED AT:	Brisbane
HEARING DATE:	19 September 2008
JUDGES:	Mackenzie AJA, Cullinane and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave to appeal against sentence granted; 2. Appeal allowed; Substitute in lieu of the sentence imposed, a sentence in respect of each count of two years imprisonment to be suspended after eight months and fix an operational period of three years3.
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 – where applicant convicted on own plea of guilty of eight counts of indecent treatment of a child under 12, under care – where applicant sentenced to imprisonment for four years on each count, to be served concurrently, with parole eligibility after one year – whether sentence imposed was manifestly excessive – whether sufficient consideration was given to the applicant’s remorse, plea of guilty and the information volunteered AB v The Queen (1999) 165 ALR 298; [1999] HCA 46, applied R v Craig; ex parte A-G (Qld)[2002] QCA 414 cited R v Hamstead[1999] QCA 33 considered R v M[1995] QCA 394 considered R v MAO;ex parte A-G [2006] QCA 99 considered R v P [2001] QCA 130 considered R v Quick; ex parte A-G (Qld) (2006) 166 A Crim R 588; [2006] QCA 477 cited R v SAQ [2002] QCA 221 considered R v Schirmer[1995] QCA 242 considered
COUNSEL:	J R Hunter for the applicant/appellant R Pointing for the respondent
SOLICITORS:	Legal Aid (Qld) for the applicant/appellant Director of Public Prosecutions (Qld) for the respondent