R v RBD

Case [2020] QCA 136 23 June 2020

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SUPREME COURT OF QUEENSLAND

CITATION:

R v RBD [2020] QCA 136

PARTIES:

R
v
RBD
(applicant)

FILE NO/S:

CA No 82 of 2019
SC No 117 of 2018
SC No 124 of 2018
SC No 134 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns – Date of Sentence: 12 March 2019 (Henry J)

DELIVERED ON:

23 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2020

JUDGES:

Holmes CJ and Mullins JA and Jackson J

ORDER:

Application for leave to appeal against the 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 choking in a domestic setting (domestic violence offence), three counts of sexual assault (domestic violence offence), one count of unlawful stalking with violence (domestic violence offence), one count of burglary, by breaking, in the night (domestic violence offence), one count of assault occasioning bodily harm (domestic violence offence), one count of deprivation of liberty (domestic violence offence), one count of rape (domestic violence offence), one count of dangerous operation of a vehicle and 19 further summary offences – where the sentencing judge divided all the offences into three ‘Sets’ of offences and terms of imprisonment were imposed for each of those offences – where the Set 2 offences were directed to be served cumulatively on the terms of imprisonment for the Set 1 offences and the terms of imprisonment for the Set 3 offences were directed to be served cumulatively on the terms of imprisonment for the Set 1 and 2 offences – where the total period of imprisonment to be served under the sentences was 12 years – where a serious violent offence (‘SVO’) declaration was declared in respect of six of the counts – where the applicant submits that the overall operation of the sentences is manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant has to serve 80 per cent of the 12 year sentence as an SVO declaration was declared on the whole of the sentence – where the applicant submits that the sentencing judge erred in not giving specific consideration to the consequences of taking non-SVO offences into account in arriving at a total effective sentence which attracts an SVO declaration

Criminal Code (Qld), s 315A(1)(a), s 315A(1)(b)(i), s 328, s 339(1), s 349(2)(b), s 352(1)(a), s 355, s 359B, s 359E(1), s 359E(3)(a), s 419(1), s 419(2), s 419(3)(a)
Penalties and Sentences Act 1992 (Qld), s 4, s 156(1), s 161A, s 161C, schedule 1

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v Derks[2011] QCA 295, cited
R v Gesler[2016] QCA 311, cited
R v Hasanovic[2010] QCA 337, cited
R v Mallie; Ex parte Attorney-General (Qld)[2009] QCA 109, cited
R…

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 RBD

Details

AGLC: R v RBD [2020] QCA 136
Case: [2020] QCA 136
Decision Date: 23 June 2020

CaseChat Overview and Summary

The applicant, RBD, appealed against the sentence imposed following a guilty plea to multiple serious offences, including choking, sexual assault, unlawful stalking with violence, burglary, assault occasioning bodily harm, deprivation of liberty, rape, dangerous operation of a vehicle, and various summary offences. The sentencing judge organised the offences into three sets and imposed terms of imprisonment for each set, with the sentences for Set 2 and Set 3 offences to be served cumulatively on the terms for Set 1 offences. The total imprisonment was set at 12 years, with a serious violent offence declaration affecting six counts, resulting in the applicant having to serve 80 per cent of the sentence. The applicant argued that the overall operation of the sentences was manifestly excessive and that the sentencing judge erred in not considering the consequences of including non-SVO offences in the total effective sentence that attracted the SVO declaration.

The court examined the grounds for interference with the sentence, focusing on whether the sentence was manifestly excessive or inadequate. The court assessed the cumulative effect of the sentences imposed for each set of offences and the impact of the SVO declaration. The applicant's argument centred on the contention that the sentencing judge did not adequately consider the implications of including non-SVO offences when determining the total effective sentence that triggered the SVO declaration. The court considered the principles of sentencing and the need to balance the severity of the offences with the need for proportionality and deterrence.

In reaching its decision, the court highlighted the significant nature and seriousness of the offences committed by the applicant, noting the impact on the victims and the need for an appropriate punitive response. The court determined that the sentencing judge had appropriately considered the cumulative effect of the sentences and the necessity of the SVO declaration. The court found that the sentence, while substantial, was not manifestly excessive given the gravity of the offences. The applicant's argument regarding the specific consideration of non-SVO offences in the context of the SVO declaration was not sufficient to establish that the sentence was inadequate or that the sentencing judge had erred in a way that warranted interference.

The court refused the application for leave to appeal against the sentence, upholding the 12-year sentence as appropriate and proportionate to the nature and circumstances of the offences committed by the applicant.

Orders

Orders of the court

Application for leave to appeal against the 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 RBD [2020] QCA 136

Most Recent Citation

R v Baker [2021] QCA 150

Cases Citing This Decision

R v Lee [2021] QCA 233
Citation 1

…[2007] 2 Qd R 87; [2006] QCA 365, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered R v RBD [2020] QCA 136, considered R v Utley [2017] QCA 94, cited COUNSEL: The applicant appeared on his own behalf D Nardone for the respondent SOLICITORS: The applicant appeared on his own behalf Director of Publ…
R v Baker [2021] QCA 150
Citation 2 (Para 2)

…risonment imposed for the offence) and the parole eligibility period; or ·a reduction of the head sentence(s) only.[6] [6]See, for example, R v RBD [2020] QCA 136 [27], [28] and R v Benjamin (2012) 224 A Crim R 40 [82].…

See all citing cases →

Cases Cited

R v MDB [2018] QCA 283
Citation 1 (Para 3)

…what was to come, it was objectively extremely serious in its own right. His Honour observed that having regard to R v MCW [2018] QCA 241 and R v MDB [2018] QCA 283, choking the complainant to the point of unconsciousness and, on top of that, sexually assaulting her, was conduct suggesting a head sentence range o…
R v MCW [2018] QCA 241
Citation 2 (Para 3)

…was far less serious than what was to come, it was objectively extremely serious in its own right. His Honour observed that having regard to R v MCW [2018] QCA 241 and R v MDB [2018] QCA 283, choking the complainant to the point of unconsciousness and, on top of that, sexually assaulting her, was conduct suggest…
R v Utley [2017] QCA 94
Citation 3 (Para 5)

…aking in at night and sexually assaulting her, the sentence would be materially higher, probably in a range of 10 to 12 years, referring to R v Utley [2017] QCA 94 and R v Mallie [2009] QCA 109.…
R v Gesler [2016] QCA 311
Citation 4 (Para 4)

…cluding the rape later that day) could have itself attracted a sentence range of five to six years, referring to R v Rix [2014] QCA 278, R v Gesler [2016] QCA 311 and R v Ramm [2008] QCA 13.…
R v Rix [2014] QCA 278
Citation 5 (Para 4)

…ally assaulting her (not including the rape later that day) could have itself attracted a sentence range of five to six years, referring to R v Rix [2014] QCA 278, R v Gesler [2016] QCA 311 and R v Ramm [2008] QCA 13.…
R v Derks [2011] QCA 295
Citation 6 (Para 1)

…one for an offender of the applicant’s youth and lack of significant criminal history; but it is not outside a proper exercise of discretion. [1][2011] QCA 295.…
R v Hasanovic [2010] QCA 337
Citation 7 (Para 6)

…which attracts an SVO declaration it is required that the sentencing judge has considered the consequences of that outcome.[12] [12] R v Hasanovic [2010] QCA 337, [48].…
R v Mallie; ex parte A-G (Qld) [2009] QCA 109
Citation 8 (Para 5)

…y assaulting her, the sentence would be materially higher, probably in a range of 10 to 12 years, referring to R v Utley [2017] QCA 94 and R v Mallie [2009] QCA 109.…
R v Ramm [2008] QCA 13
Citation 9 (Para 4)

…day) could have itself attracted a sentence range of five to six years, referring to R v Rix [2014] QCA 278, R v Gesler [2016] QCA 311 and R v Ramm [2008] QCA 13.…
House v R [1936] HCA 40
Citation 10

…and Sentences Act 1992 (Qld), s 4, s 156(1), s 161A, s 161C, schedule 1 House v The King (1936) 55 CLR 499; [1936] HCA 40, cited R v Derks [2011] QCA 295, cited R v Gesler [2016] QCA 311, cited R v Hasanovic [2010] QCA 337, cited R v Mallie; Ex parte Attorney-General (Qld) [2009] QCA 109, cited R v MCW [2019] 2…
House v The King 63 WN 176
Citation 11

…1), s 419(2), s 419(3)(a) Penalties and Sentences Act 1992 (Qld), s 4, s 156(1), s 161A, s 161C, schedule 1 House v The King (1936) 55 CLR 499; [1936] HCA 40, cited R v Derks [2011] QCA 295, cited R v Gesler [2016] QCA 311, cited R v Hasanovic [2010] QCA 337, cited R v Mallie; Ex parte Attorney-General (Qld) [2009] QCA 10…

Legislation Cited

Penalties and Sentences Act 1992 (Qld) 4
2 mentions (from Para 3)

CITATION:	R v RBD [2020] QCA 136
PARTIES:	R v RBD (applicant)
FILE NO/S:	CA No 82 of 2019 SC No 117 of 2018 SC No 124 of 2018 SC No 134 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Cairns – Date of Sentence: 12 March 2019 (Henry J)
DELIVERED ON:	23 June 2020
DELIVERED AT:	Brisbane
HEARING DATE:	4 June 2020
JUDGES:	Holmes CJ and Mullins JA and Jackson J
ORDER:	Application for leave to appeal against the 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 choking in a domestic setting (domestic violence offence), three counts of sexual assault (domestic violence offence), one count of unlawful stalking with violence (domestic violence offence), one count of burglary, by breaking, in the night (domestic violence offence), one count of assault occasioning bodily harm (domestic violence offence), one count of deprivation of liberty (domestic violence offence), one count of rape (domestic violence offence), one count of dangerous operation of a vehicle and 19 further summary offences – where the sentencing judge divided all the offences into three ‘Sets’ of offences and terms of imprisonment were imposed for each of those offences – where the Set 2 offences were directed to be served cumulatively on the terms of imprisonment for the Set 1 offences and the terms of imprisonment for the Set 3 offences were directed to be served cumulatively on the terms of imprisonment for the Set 1 and 2 offences – where the total period of imprisonment to be served under the sentences was 12 years – where a serious violent offence (‘SVO’) declaration was declared in respect of six of the counts – where the applicant submits that the overall operation of the sentences is manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant has to serve 80 per cent of the 12 year sentence as an SVO declaration was declared on the whole of the sentence – where the applicant submits that the sentencing judge erred in not giving specific consideration to the consequences of taking non-SVO offences into account in arriving at a total effective sentence which attracts an SVO declaration Criminal Code (Qld), s 315A(1)(a), s 315A(1)(b)(i), s 328, s 339(1), s 349(2)(b), s 352(1)(a), s 355, s 359B, s 359E(1), s 359E(3)(a), s 419(1), s 419(2), s 419(3)(a) Penalties and Sentences Act 1992 (Qld), s 4, s 156(1), s 161A, s 161C, schedule 1 House v The King (1936) 55 CLR 499; [1936] HCA 40, cited R v Derks[2011] QCA 295, cited R v Gesler[2016] QCA 311, cited R v Hasanovic[2010] QCA 337, cited R v Mallie; Ex parte Attorney-General (Qld)[2009] QCA 109, cited R…