R v RBG - [2022] QCA 143

SUPREME COURT OF QUEENSLAND

CITATION:

R v RBG [2022] QCA 143

PARTIES:

R
v
RBG
(applicant)

FILE NO/S:

CA No 279 of 2021
DC No 256 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 11 October 2021 (Rosengren DCJ)

DELIVERED ON:

12 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

21 July 2022

JUDGES:

Dalton JA and Davis and Kelly JJ

ORDERS:

1.    Application for leave to appeal granted.

2.    Appeal allowed.

3.    Set aside the sentence on Count 2.

4.    Applicant is sentenced to two years imprisonment on Count 2 suspended after he has served 12 months for an operational period of four years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was found guilty after trial of attempted rape and other sexual offences against the complainant – where the applicant was sentenced to three years imprisonment on the count of attempted rape – where lesser concurrent terms were imposed upon the other counts – where the applicant seeks leave to appeal against the sentence of three years imprisonment – whether the sentence was manifestly excessive

Criminal Code (Qld), s 349, s 350, s 352
Penalties and Sentences Act 1992 (Qld), s 12A

R v HCI[2022] QCA 2, cited
R v L; Ex parte Attorney-General [1996] 2 Qd R 63; [1995] QCA 444, cited
R v Smith [2020] QCA 23, considered
R v Wark[2008] QCA 172, considered
Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74, cited

COUNSEL:

S J Hamlyn-Harris for the applicant
C W Wallis for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

DALTON JA: I agree with the orders proposed by Davis J.
The offending in this case was quite serious. The complainant and the applicant were in the process of ending their marriage, but still living in the matrimonial home. The complainant’s evidence as to the circumstances of the offending was:
“… We had a fight over – I actually don’t remember the exact details of what it was, but we were fighting. It got into the old ground of he didn’t want us to break up and I just kept saying it was over, it was done, I didn’t want to be here, ‘I want the divorce. I’m out.’ And he kept pushing and pushing and pushing and eventually I said – and I don’t remember if I said, ‘I kissed Anthony’ or ‘Anthony kissed me.’
…
… He came in, and he was furious. And I knew that by telling him that I’d kissed another man it would – I was hoping it would be proof point enough that – stop it. Just – he would not agree to sorting out finances. He had me trapped in this house; I couldn’t get out. And he…

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 RBG

Details

AGLC: R v RBG [2022] QCA 143
Case: [2022] QCA 143
Decision Date: 12 August 2022

CaseChat Overview and Summary

The applicant in this case was found guilty following a trial of attempted rape and other sexual offences against a complainant. The applicant was sentenced to three years imprisonment on the count of attempted rape, with lesser concurrent terms imposed for the other counts. The applicant sought leave to appeal against the sentence of three years imprisonment, arguing that it was manifestly excessive. The case was heard in the higher court where the applicant's legal representatives contended that the sentence imposed was disproportionate to the crime committed.

The legal issues before the court were whether the sentence was manifestly excessive and if so, whether the appeal should be allowed. The court examined the circumstances of the crime, the character of the applicant, and the principles of sentencing in determining the appropriate sentence. The court noted that the offence of attempted rape was serious, but also considered the mitigating factors, such as the applicant's otherwise good character and his expressions of remorse.

The court found that the sentence of three years imprisonment for the attempted rape was manifestly excessive. The court acknowledged the seriousness of the crime but also took into account the mitigating factors and the principle of proportionality in sentencing. The court concluded that a more appropriate sentence would be two years imprisonment, suspended after the applicant had served 12 months, for an operational period of four years. The court allowed the appeal and set aside the original sentence, imposing the new sentence in its place.

Orders

Orders of the court

1. Application for leave to appeal granted.

2. Appeal allowed.

3. Set aside the sentence on Count 2.

4. Applicant is sentenced to two years imprisonment on Count 2 suspended after he has served 12 months for an operational period of four years.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v RBG [2022] QCA 143
PARTIES:	R v RBG (applicant)
FILE NO/S:	CA No 279 of 2021 DC No 256 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 11 October 2021 (Rosengren DCJ)
DELIVERED ON:	12 August 2022
DELIVERED AT:	Brisbane
HEARING DATE:	21 July 2022
JUDGES:	Dalton JA and Davis and Kelly JJ
ORDERS:	1. Application for leave to appeal granted. 2. Appeal allowed. 3. Set aside the sentence on Count 2. 4. Applicant is sentenced to two years imprisonment on Count 2 suspended after he has served 12 months for an operational period of four years.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was found guilty after trial of attempted rape and other sexual offences against the complainant – where the applicant was sentenced to three years imprisonment on the count of attempted rape – where lesser concurrent terms were imposed upon the other counts – where the applicant seeks leave to appeal against the sentence of three years imprisonment – whether the sentence was manifestly excessive Criminal Code (Qld), s 349, s 350, s 352 Penalties and Sentences Act 1992 (Qld), s 12A R v HCI[2022] QCA 2, cited R v L; Ex parte Attorney-General [1996] 2 Qd R 63; [1995] QCA 444, cited R v Smith [2020] QCA 23, considered R v Wark[2008] QCA 172, considered Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74, cited
COUNSEL:	S J Hamlyn-Harris for the applicant C W Wallis for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent