R v RAL - [2012] QCA 34

SUPREME COURT OF QUEENSLAND

CITATION:

R v RAL [2012] QCA 34

PARTIES:

R
v
RAL
(applicant)

FILE NO/S:

CA No 310 of 2011
DC No 1904 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

2 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2012

JUDGES:

Margaret McMurdo P and Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to maintaining an unlawful sexual relationship with a child – where applicant sentenced to four and a half years imprisonment with parole eligibility after 18 months – where applicant suffered ill-health – whether applicant’s ill-health meant that imprisonment would be a greater burden on the applicant or would have a gravely adverse effect on the applicant’s health – where applicant contended that the sentence ought to be four years with parole eligibility after 12 months – whether the term imposed at trial was manifestly excessive in the circumstances

R v BBS[2009] QCA 205, distinguished
R v Beesley[2008] QCA 240, distinguished
R v CAQ[1999] QCA 197, distinguished
R v Pope; ex parte Attorney-General of Queensland[1996] QCA 318, applied

COUNSEL:

D Sushames for the applicant
B J Merrin for the respondent

SOLICITORS:

Ryan & Bosscher Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: Although the penalty now sought by the applicant's counsel (four years imprisonment with parole eligibility after 12 months) would also have been within the range of a sound exercise of the sentencing discretion, the sentence actually imposed (four and a half years imprisonment with parole eligibility after 18 months) was not manifestly excessive. That is so, even taking into account the applicant's manifold health problems. I agree with White JA's reasons for refusing the application for leave to appeal against sentence.

FRASER JA: I agree with the reasons for judgment of White JA and the order proposed by her Honour.

WHITE JA: On 21 October 2011 the applicant pleaded guilty to the charge that between 30 April and 14 November 2010 he maintained an unlawful sexual relationship with a child. The applicant was aged 66 to 67 when he offended. The child was aged four. The applicant is the uncle by marriage of the complainant’s mother. He was sentenced to four and a half years imprisonment with his parole eligibility fixed at 21 April 2013, that is, after serving 18 months.

The applicant seeks leave to appeal against the sentence on the ground that it is manifestly excessive. He contends that the sentence ought to have been one of imprisonment for four years with parole after serving 12 months. The prosecutor below had sought a sentence…

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 RAL

Details

AGLC: R v RAL [2012] QCA 34
Case: [2012] QCA 34
Decision Date: 2 March 2012

CaseChat Overview and Summary

The appellant in this case, RAL, pleaded guilty to maintaining an unlawful sexual relationship with a child. The matter was heard in the Court of Appeal, where RAL sought leave to appeal against the sentence imposed by the trial court. The trial court sentenced RAL to four and a half years imprisonment, with parole eligibility after 18 months. RAL argued that the sentence was manifestly excessive and that his ill-health meant that imprisonment would be a greater burden on him or would have a gravely adverse effect on his health. RAL contended that the appropriate sentence should have been four years with parole eligibility after 12 months.

The court was required to determine whether the sentence imposed at trial was manifestly excessive in the circumstances, particularly in light of RAL's ill-health. The court considered the seriousness of the offence, the need for denunciation and deterrence, and the principles of sentencing proportionality and parity. The court also considered the impact of RAL's ill-health on the severity of the sentence. Ultimately, the court found that the sentence imposed at trial was not manifestly excessive in the circumstances.

In reaching its decision, the court considered the principles of sentencing proportionality and parity, as well as the need for denunciation and deterrence. The court found that the sentence imposed at trial was within the range of sentences that could be considered appropriate for the offence, taking into account the circumstances of the case. The court also found that RAL's ill-health did not render the sentence manifestly excessive, as the trial judge had already taken this into account when imposing the sentence. The court held that the sentence imposed at trial was not manifestly excessive and refused leave to appeal.

The application for leave to appeal against sentence is refused.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

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 RAL [2012] QCA 34
PARTIES:	R v RAL (applicant)
FILE NO/S:	CA No 310 of 2011 DC No 1904 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	2 March 2012
DELIVERED AT:	Brisbane
HEARING DATE:	3 February 2012
JUDGES:	Margaret McMurdo P and Fraser and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to maintaining an unlawful sexual relationship with a child – where applicant sentenced to four and a half years imprisonment with parole eligibility after 18 months – where applicant suffered ill-health – whether applicant’s ill-health meant that imprisonment would be a greater burden on the applicant or would have a gravely adverse effect on the applicant’s health – where applicant contended that the sentence ought to be four years with parole eligibility after 12 months – whether the term imposed at trial was manifestly excessive in the circumstances R v BBS[2009] QCA 205, distinguished R v Beesley[2008] QCA 240, distinguished R v CAQ[1999] QCA 197, distinguished R v Pope; ex parte Attorney-General of Queensland[1996] QCA 318, applied
COUNSEL:	D Sushames for the applicant B J Merrin for the respondent
SOLICITORS:	Ryan & Bosscher Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent