R v RAP

Case [2014] QCA 228 11 September 2014

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SUPREME COURT OF QUEENSLAND

CITATION:

R v RAP [2014] QCA 228

PARTIES:

R
v
RAP
(applicant)

FILE NO/S:

CA No 113 of 2014
DC No 576 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 September 2014

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2014

JUDGES:

Margaret McMurdo P and Fraser JA and Alan Wilson 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 – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of unlawful assault causing bodily harm and one count of unlawful damage to property – where those counts arose out of an incident where the applicant assaulted his former wife – where the applicant was sentenced to two years’ imprisonment for the first count, suspended after eight months with an operational period of 2.5 years, and for two months’ imprisonment for the second count, to be served concurrently – where the applicant seeks leave to appeal against sentence on the ground that that sentence was manifestly excessive – where the applicant disputes aspects of the agreed schedule of facts that was before the sentencing judge – where the applicant also makes specific allegations of errors of fact, or concerning the weight given to facts, made by the sentencing judge – whether the sentencing judge’s discretion miscarried and the applicant should be given leave to appeal

Criminal Code 1899 (Qld), s 668D

R v Denham; ex parte A-G (Qld)[2003] QCA 74, cited
R v Eastwell[2007] QCA 272, cited
R v Fairbrother; ex parte A-G (Qld)[2005] QCA 105, cited
R v Frame [2009] QCA 9, cited
R v George[2006] QCA 1, cited
R v HBA[2010] QCA 306, cited
R v Johnson [2002] QCA 283, cited
R v King[2006] QCA 466, cited
R v Pierpoint (2001) 126 A Crim R 305; [2001] QCA 493, cited
R v Roach (2009) 213 A Crim R 485; [2009] QCA 360, cited
R v Ward[1998] QCA 329, cited

COUNSEL:

The applicant appeared on his own behalf
J A Wooldridge for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with Alan Wilson J’s reasons for refusing this application for leave to appeal.

FRASER JA: I agree with the reasons for judgment of Alan Wilson J and the order proposed by his Honour.

ALAN WILSON J: The applicant RAP entered guilty pleas in the District Court at Brisbane, in May this year, to two charges arising out of events at his former matrimonial home on 18 January 2013: the unlawful assault of his wife, causing her bodily harm; and, unlawful damage to property.

On…

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 RAP

Details

AGLC: R v RAP [2014] QCA 228
Case: [2014] QCA 228
Decision Date: 11 September 2014

CaseChat Overview and Summary

The applicant, RAP, appealed against his sentence following a guilty plea to charges of unlawful assault causing bodily harm and unlawful damage to property. The charges stemmed from an incident involving the applicant and his former wife. The court sentenced him to two years’ imprisonment for the assault charge, suspended after eight months with an operational period of 2.5 years, and two months’ imprisonment for the damage charge, to be served concurrently. The applicant sought leave to appeal on the grounds that the sentence was manifestly excessive and contested certain aspects of the agreed schedule of facts presented to the sentencing judge. Additionally, the applicant alleged errors in fact or in the weight given to certain facts by the sentencing judge.

The primary legal issue was whether the sentencing judge’s discretion had miscarried to such an extent that it warranted allowing the appeal. The court needed to determine if the sentence imposed was manifestly excessive or inadequate. This involved examining the circumstances of the offence, the nature of the injuries sustained by the victim, and the applicant’s personal circumstances. The court also had to consider whether the applicant's allegations of error or misapprehension by the sentencing judge were substantial enough to affect the outcome of the sentence.

The court concluded that the sentence imposed was within the range of reasonable responses available to the sentencing judge. It found that the sentencing judge had adequately considered the relevant factors, including the agreed schedule of facts and the circumstances of the offence. The court held that the applicant had not demonstrated a clear error in the exercise of the sentencing judge's discretion. Consequently, the application for leave to appeal against the sentence was dismissed.

No further orders were made by the court. The decision stands as it is, with the applicant's appeal against sentence being refused.

Orders

Orders of the court

Application for leave to appeal against sentence 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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Citations

R v RAP [2014] QCA 228

Most Recent Citation

Commonwealth Director of Public Prosecutions v Sadrata (No 2) [2024] NFSC 3

Cases Citing This Decision

R v Rbo [2024] QCA 214
Citation 1

…SWCCA 290, cited R v Pham (2009) 197 A Crim R 246; [2009] QCA 242, applied R v RAP (2014) 244 A Crim R 477; [2014] QCA 228, explained R v WBX [2023] QCA 151, explained COUNSEL: J R Hunter KC for the appellant/applicant C M Cook for the respondent SOLICITORS: Guest Lawyers for the appellant/applicant Director of P…
Commonwealth Director of Public Prosecutions v Sadrata (No 2) [2024] NFSC 3
Citation 2 (Para 37)

…cases where sentences of imprisonment were imposed for domestic violence offences. Those cases included R v RAP (2014) 244 A Crim R 447; [2014] QCA 228; Patsan v R [2018] NSWCCA 129; R v MCW [2019] 2 Qd R 334; [2018] QCA 241; and R v MDB [2018] QCA 283.…
The King v GBM [2024] QCA 10
Citation 3 (Para 12)

…ving considered the circumstances of the applicant’s criminal conduct, his mitigating features and relevant comparable authorities, namely, R v RAP [2014] QCA 228, (2014) 244 A Crim R 477 and R v West [2006] QCA 252, there is no basis to conclude that the sentences imposed were manifestly excessive.…
R v WBX [2023] QCA 151
Citation 4 (Para 36)

…on of a sentence other than imprisonment, there were many distinguishing features in Hollis which rendered it not a comparable yardstick. [2] R v RAP [2014] QCA 228; R v CBU [2017] QCA 227; R v Kelley [2018] QCA 18. [3][2020] QCA 7.…
R v MDB [2018] QCA 283
Citation 5 (Para 18)

…ies for an offence committed against s 315A.” [8] R v West [2006] QCA 252; R v King [2006] QCA 466 and R v RAP (2014) 244 A Crim R 477; [2014] QCA 228.…
R v MCW [2018] QCA 241
Citation 6 (Para 19)

…nt was the appropriate sentence for the applicant on the basis of the authorities of R v West [2006] QCA 252, R v King [2006] QCA 466 and R v RAP [2014] QCA 228. The prosecutor also sought to vary the protection order by extending its operation and adding a further “no contact” condition.…
Caddies v Birchell [2018] QDC 180
Citation 7

…6] QCA 001 R v Hannigan [2009] QCA 40 R v Hook [2006] QCA 458 R v Johnson [2002] QCA 283 R v King [2006] QCA 466 R v Pierpoint [2001] QCA 493 R v RAP [2014] QCA 228 R v Roach [2009] QCA 360 R v Von Pein [2002] QCA 385 Spizzirri v The Commissioner of Police [2015] QDC 222 Tierney v Commissioner of Police [2011] QC…
Commissioner of Police v DGM [2016] QDC 22
Citation 8 (Para 1)

…On appeal, the prosecutor argued R v RAP [2014] QCA 228 provides a yardstick for a sentence in the order of 2 years imprisonment with a release to parole at 8 months. The solicitor for the defence, argued RAP could be distinguished and referred the Court to the cases of R v Fairbrother; ex parte A-G (Qld) [2005]…

See all citing cases →

Cases Cited

R v HBA [2010] QCA 306
Citation 1 (Para 1)

…ral culpability in a way which should have been reflected, to his advantage, in the exercise of the sentencing discretion.[14] [14] R v HBA [2010] QCA 306.…
R v Roach [2009] QCA 360
Citation 2 (Para 1)

…In R v Roach [2009] QCA 360 the applicant and the complainant had a “… sexual relationship of an intermittent nature ” between early 2004 and mid April 2006.[30] For some part of that time the applicant received a carer’s pension for looking after the complainant who was, however, living alone when the applicant…
R v Frame [2009] QCA 9
Citation 3 (Para 1)

…the agreed schedule; and, Mr RAP’s new revised version must, for the purposes of this application, be disregarded.[11] [10]R 26.17. [11] R v Frame [2009] QCA 9.…
R v. Eastwell [2007] QCA 272
Citation 4 (Para 1)

…In R v Eastwell [2007] QCA 272 the applicant assaulted his estranged wife after they had been separated for over a year. In September 2006 they argued and he punched her in the face at least three times – on the nose, left eye and cheek. There had been an earlier assault in August 2005 when he had been sentenced…
R v King [2006] QCA 466
Citation 5 (Para 1)

…In R v King [2006] QCA 466 the applicant and the complainant had lived together for about three years. The relationship had featured incidents of domestic violence and, after two years, the complainant obtained a DVO against the applicant. In December 2003 they argued and he chased her out of the house, grabbed h…
R v George [2006] QCA 1
Citation 6 (Para 1)

…In R v George [2006] QCA 1 the parties had been married for some 20 years. They separated in 2004 and the applicant moved out but, on an evening in June 2004, returned to the home when the complainant was in the bathroom, and hit her in the face and body and held her on the floor, covering her mouth with his ha…
R v Fairbrother; ex parte Attorney-General [2005] QCA 105
Citation 7 (Para 1)

…R v Fairbrother; ex parte A-G (Qld) [2005] QCA 105 was an Attorney-General’s appeal. The parties had been living together for five years, with occasional periods of separation. On an occasion when the male respondent was drunk they argued, and he pushed her to the floor and hit her on the head with cans of beer.…
R v Denham; ex parte A-G (Qld) [2003] QCA 74
Citation 8 (Para 1)

…R v Denham; ex parte A-G (Qld) [2003] QCA 74 was an Attorney-General’s appeal against, relevantly, a 12 month Intensive Correction Order imposed upon a man who assaulted his ex-partner’s elderly father in a domestic fracas. While the appeal was rejected McMurdo P noted that a custodial sentence of up to two year…
R v Johnson [2002] QCA 283
Citation 9 (Para 1)

…In R v Johnson [2002] QCA 283 the applicant had been sentenced to two years’ imprisonment, suspended after eight months with an operational period of three years, in respect of two assaults occasioning bodily harm upon a female with whom he had a “casual” relationship, and one offence of wilful damage. In the fir…
R v Pierpoint [2001] QCA 493
Citation 10 (Para 1)

…In R v Pierpoint [2001] QCA 493 the parties had been living in a de facto relationship for about 10 years, but had recently separated after some domestic disharmony. The female partner had taken out a restraining order about two weeks before an occasion when the male arrived at the parties’ former family home and…
R v Ward [1998] QCA 329
Citation 11 (Para 1)

…In R v Ward [1998] QCA 329 the male applicant was 49, with no prior convictions. He assaulted his de facto partner, slapping her and aggravating a back condition from which she suffered. The applicant’s guilty plea came on the second day of his trial. The trial judge sentenced him to nine months’ imprisonment, su…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v RAP [2014] QCA 228
PARTIES:	R v RAP (applicant)
FILE NO/S:	CA No 113 of 2014 DC No 576 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	11 September 2014
DELIVERED AT:	Brisbane
HEARING DATE:	29 August 2014
JUDGES:	Margaret McMurdo P and Fraser JA and Alan Wilson 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 – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of unlawful assault causing bodily harm and one count of unlawful damage to property – where those counts arose out of an incident where the applicant assaulted his former wife – where the applicant was sentenced to two years’ imprisonment for the first count, suspended after eight months with an operational period of 2.5 years, and for two months’ imprisonment for the second count, to be served concurrently – where the applicant seeks leave to appeal against sentence on the ground that that sentence was manifestly excessive – where the applicant disputes aspects of the agreed schedule of facts that was before the sentencing judge – where the applicant also makes specific allegations of errors of fact, or concerning the weight given to facts, made by the sentencing judge – whether the sentencing judge’s discretion miscarried and the applicant should be given leave to appeal Criminal Code 1899 (Qld), s 668D R v Denham; ex parte A-G (Qld)[2003] QCA 74, cited R v Eastwell[2007] QCA 272, cited R v Fairbrother; ex parte A-G (Qld)[2005] QCA 105, cited R v Frame [2009] QCA 9, cited R v George[2006] QCA 1, cited R v HBA[2010] QCA 306, cited R v Johnson [2002] QCA 283, cited R v King[2006] QCA 466, cited R v Pierpoint (2001) 126 A Crim R 305; [2001] QCA 493, cited R v Roach (2009) 213 A Crim R 485; [2009] QCA 360, cited R v Ward[1998] QCA 329, cited
COUNSEL:	The applicant appeared on his own behalf J A Wooldridge for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent