R v RBC

Case [2020] QCA 99

SUPREME COURT OF QUEENSLAND

CITATION:

R v RBC [2020] QCA 99

PARTIES:

R
v
RBC
(applicant)

FILE NOS:

CA No 8 of 2020
SC No 509 of 2020
DC No 498 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 9 December 2019 (Morzone QC DCJ)

DELIVERED ON:

12 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

8 April 2020

JUDGES:

Morrison JA and Boddice and Williams JJ

ORDER:

1.   On the count contained in the ex officio indictment presented on 8 April 2020, sentence the appellant to be imprisoned for a period of three years, to be served concurrently with the sentences imposed on 9 December 2019.

2.   The application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted, on her own plea of guilty, of 14 counts of sexual offences, all domestic violence offences – where all sentences were to be served concurrently – where the head sentence was nine and a half years’ imprisonment (Count 14, rape) – where no parole eligibility date was set – whether the sentence on Count 14 was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the contention advanced was that the allegation of oral sex in relation to Count 14 could not stand as a particular of rape – where the allegation was, in effect, an uncharged act – whether the learned sentencing judge took into account an uncharged act in relation to Count 14

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where it was contended that it is the Court that is required to set a parole eligibility date – where the learned sentencing judge referred to the role of experts, who could guide as to appropriate programs, in the sentencing remarks – whether the learned sentencing judge took into account irrelevant or incorrect considerations in exercising the discretion as to whether to fix a parole eligibility date

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – where the appellant was convicted of rape (Count 13) – where the appellant challenges her conviction on the basis that it was a miscarriage of justice – where, before this Court, the Crown conceded that the accepted facts did not disclose an offence of rape – where the conviction was set aside and leave to withdraw the plea of guilty was granted – where the Crown presented an ex officio indictment for the alternative charge of indecent treatment – where the appellant entered a plea of guilty – where the appellant accepted that the sentence on the new charge would be one determined by this Court – whether the new…

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Details
AGLC
R v RBC [2020] QCA 99
Case
[2020] QCA 99
Decision Date

CaseChat Overview and Summary

The case of R v RBC involved the appellant, RBC, who was convicted on her own plea of guilty of 14 counts of sexual offences, all of which were domestic violence offences. The case was heard in the Queensland Court of Appeal, where the primary issue was the sentence imposed on Count 14, which was rape. The head sentence for this count was nine and a half years’ imprisonment, to be served concurrently with the other sentences. RBC appealed against her sentence, arguing that it was manifestly excessive and that the judge had acted on wrong principles by taking into account uncharged acts and setting no parole eligibility date. The court had to decide whether the sentence on Count 14 was manifestly excessive, whether the judge took into account an uncharged act, and whether the judge considered irrelevant or incorrect considerations in deciding not to set a parole eligibility date.

The court found that the judge had not erred in taking into account the uncharged act, as it was merely part of the context in which the offence occurred and was not considered as a distinct particular of the rape. The court also found that the judge had not acted on any incorrect considerations in deciding not to set a parole eligibility date. The court held that the sentence on Count 14 was not manifestly excessive, as the objective seriousness of the conduct was the same regardless of the change in the offence or sentence. The court also found that the challenge to the conviction on Count 13 was valid, as the accepted facts did not disclose an offence of rape. The conviction was set aside, and RBC was convicted of the alternative charge of indecent treatment of a child under 16, under 12, under care. The new sentence did not affect the question of manifest excess in relation to Count 14.

The court ordered that RBC be imprisoned for a period of three years on the count contained in the ex officio indictment presented on 8 April 2020, to be served concurrently with the sentences imposed on 9 December 2019. The application for leave to appeal was refused. The judges agreed with the reasons given by Morrison JA and the orders proposed. The court noted that the learned sentencing judge had considered the greater impact of imprisonment upon the appellant than would be the case for other prisoners. The court concluded that the sentence on Count 14 was not manifestly excessive, and the appeal was dismissed.

Orders

Orders of the court

1. On the count contained in the ex officio indictment presented on 8 April 2020, sentence the appellant to be imprisoned for a period of three years, to be served concurrently with the sentences imposed on 9 December 2019.

2. The application for leave to appeal is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On the second point, I accept the respondent’s submission that there is no good basis to consider that the change in the offence or sentence has any impact upon the question of penalty on Count 14. The objective seriousness of the conduct is the same.Conclusion and orders The orders concerning the setting aside of Count 13 were made on the hearing of the appeal on 8 April 2020. Thus, the appeal against conviction on Count 13 was allowed, the conviction set aside, leave was granted to the appellant to withdraw her plea of guilty on that count, and on the appellant’s plea of guilty to the new count, the appellant was convicted of indecent treatment of a child under 16, under 12, under care. For the reasons given above I propose the following further orders:1.On the count contained in the ex officio indictment presented on 8 April 2020, sentence the appellant to be imprisoned for a period of three years, to be served concurrently with the sentences imposed on 9 December 2019.2.The application for leave to appeal is refused. BODDICE J: I agree with Morrison JA. WILLIAMS J: I have read the reasons of Morrison JA and agree with those reasons and the orders his Honour proposes.

Ratio Decidendi

Legal Principle Established

Finally, the learned sentencing judge noted, albeit in the context of consideration of a parole eligibility date, the greater impact of imprisonment upon the appellant than would be the case for other prisoners.Consideration of the challenge to the sentences It is convenient to first deal with the specific grounds alleging error.Count 14 – taking into account uncharged acts The appellant contended that the sentence for Count 14 was made in error because the learned sentencing judge took into account uncharged acts. The basis of this contention was in the recitation of the facts in the agreed schedule, concerning Count 14. As reflected in paragraph [32] above the recitation of facts included those with respect to the offence of rape, completed upon penetration of the appellant’s anus by N3’s penis. The recitation continued with the facts following the cessation of the anal penetration. The essence of these facts was that the appellant lay on her back with N3 sitting on her chest, and the appellant sucking N3’s penis for a period of time. The contention advanced was that the allegation of oral sex in relation to Count 14 could not stand as a particular of rape and was, in effect, an uncharged act which was taken into account in aggravation of the sentence. It was contended that there was a real risk that the learned sentencing judge considered the allegation as a distinct particular of the rape. In my view, these contentions should be rejected for a number of reasons. First, the reference to the oral sex is contained only in the agreed schedule of facts. The indictment contained no such allegation, preferring only a charge of rape by the appellant on N3. The addition of the facts concerning the oral sex were merely the context in which Count 14 occurred. It was appropriate for the purposes of sentencing that the offences be seen in the proper context. That occurred with Count 1 in particular, but otherwise with most counts where the facts were concerned with much more than the mere recitation of the conduct satisfying the elements of the offence. Secondly, the fact that the learned sentencing judge mentioned the oral sex in the recitation of Count 14 in the course of the sentencing comments does not mean that his Honour was sentencing on the basis of an uncharged act, or misapprehended that it was a particular of the rape. His Honour was merely summarising what had been agreed were the facts relevant to each count. Both the indictment and the schedule of facts identified s 349(2)(a) of the Criminal Code (Qld) as the provision defining the offence. Relevantly, the offence involved the appellant having carnal knowledge with or of N3. The term “carnal knowledge” is relevantly defined in s 6 of the Criminal Code which provides that if it is used to define an offence, the term includes anal intercourse and the carnal knowledge is “complete on penetration to any extent”. The learned sentencing judge cannot be shown to have misapprehended the nature of the offence the subject of Count 14.