R v RBM

Case [2024] QCA 163 6 September 2024

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SUPREME COURT OF QUEENSLAND

CITATION:

R v RBM [2024] QCA 163

PARTIES:

R
v
RBM
(applicant)

FILE NO/S:

CA No 49 of 2024
DC No 115 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Bundaberg – Date of Sentence: 19 February 2024 (Clare SC DCJ)

DELIVERED ON:

6 September 2024

DELIVERED AT:

Brisbane

HEARING DATE:

7 August 2024

JUDGES:

Bowskill CJ and Flanagan JA and Wilson J

ORDER:

The application for leave to appeal against sentence is dismissed.

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 assault occasioning bodily harm, one count of deprivation of liberty and one count of unlawful use of a motor vehicle – where the offences were domestic violence offences – where the applicant was sentenced to six years imprisonment, three years imprisonment and six years imprisonment respectively with parole eligibility after two years – where the sentencing judge declared 384 days of pre-sentence custody as time already served under the sentence – where another 122 days of pre-sentence custody had already been declared as time served under a previous sentence – whether the sentences were manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the sentencing judge found that the applicant intended to cause severe psychological harm to the complainant – where the sentencing judge found that the applicant had an intention just short of that which would constitute torture – where none of the offences had an element of intention – where the applicant’s state of mind was not dealt with in the agreed statement of facts tendered at the sentence – where the applicant submits the Crown did not seek a finding that the applicant had this subjective intention – whether the sentencing judge impermissibly made findings of fact which infringed the principles in Strbak v The Queen

Evidence Act 1977 (Qld), s 132C

Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17; cited
R v Abdullah [2023] QCA 189, cited
R v D [1996] 1 Qd R 363; [1995] QCA 329, cited
R v De Simoni (1981) 147 CLR 383; [1981] HCA 31, cited
R v Kowearpta [2009] QCA 48, considered
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited
R v RBE (2021) 8 QR 358; [2021] QCA 146, considered
R v Rowlands [2019] QCA 112, considered
R v Thompson[2019] QCA 46, considered
R v West [2006] QCA 252, considered
Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10, considered

COUNSEL:

M J Jackson for the applicant
R G Reid for the respondent

SOLICITORS:

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

BOWSKILL CJ: I agree with Wilson J.

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 RBM

Details

AGLC: R v RBM [2024] QCA 163
Case: [2024] QCA 163
Decision Date: 6 September 2024

CaseChat Overview and Summary

The applicant, referred to as RBM, was before the court in an appeal against sentence. The applicant had pleaded guilty to one count of assault occasioning bodily harm, one count of deprivation of liberty, and one count of unlawful use of a motor vehicle. All offences were classified as domestic violence offences. RBM was sentenced to six years imprisonment for the assault, three years for the deprivation of liberty, and six years for the unlawful use of a motor vehicle. The sentences were to run concurrently, with parole eligibility after two years. The sentencing judge also declared that 384 days of pre-sentence custody were to be counted as time already served under the new sentence, and an additional 122 days were to be counted from a previous sentence. The applicant argued that the sentences were manifestly excessive.

The legal issues before the court included whether the sentences imposed were manifestly excessive or inadequate, and whether the sentencing judge made impermissible findings of fact regarding the applicant's intent. Specifically, the sentencing judge had found that RBM intended to cause severe psychological harm to the complainant and had an intention just short of that which would constitute torture. However, none of the offences had an element of intention, and the applicant's state of mind was not part of the agreed statement of facts. RBM submitted that the Crown had not sought a finding on the applicant's subjective intention, and thus, the sentencing judge's findings were improper and violated the principles set out in Strbak v The Queen.

The court found that the sentences were not manifestly excessive, considering the seriousness of the offences and the need for general and specific deterrence. The court also held that the sentencing judge's findings on the applicant's intent did not constitute an impermissible incursion into the fact-finding role of the jury. The court noted that the findings were made in the context of sentencing and were not determinative of guilt, but rather relevant to the severity of the sentence. The application for leave to appeal against sentence was dismissed.

Orders

Orders of the court

The application for leave to appeal against sentence is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v RBM [2024] QCA 163

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 14 of 14 shown

R v Abdullah
[2023] QCA 189 Para 10

…he difference is such that there must have been a misapplication of principle, or that the sentence is “unreasonable or plainly unjust”.” [21][2023] QCA 189 at [28]. Citation omitted.…
R v RBE
[2021] QCA 146 Para 1

…ances where the applicant’s counsel submitted for one such view as the sentencing basis (that it was a suicide attempt). [18](2021) 8 QR 358; [2021] QCA 146.…
Nguyen v The Queen
[2020] HCA 23 Para 16

…tencing judge should, or can, take into account within the bounds of the De Simoni principle:[16] [13](1981) 147 CLR 383. [14] Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [29] per Bell and Keane JJ. [15][1996] 1 Qd R 363. [16] R v D [1996] 1 Qd R 363, 403–404. Citation omitted. “Sentencing judges ought ex…
Strbak v The Queen
[2020] HCA 10

…pson [2019] QCA 46, considered R v West [2006] QCA 252, considered Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10, considered COUNSEL: M J Jackson for the applicant R G Reid for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent…
R v Rowlands
[2019] QCA 112 Para 6

…ies were trying to fit the applicant’s case alongside the more usual examples of assault occasioning bodily harm in a domestic violence context. [5][2019] QCA 112. [6][2019] QCA 46. [7][2009] QCA 48.…
R v Thompson
[2019] QCA 46 Para 6

…fit the applicant’s case alongside the more usual examples of assault occasioning bodily harm in a domestic violence context. [5][2019] QCA 112. [6][2019] QCA 46. [7][2009] QCA 48.…
Nguyen v The Queen
[2016] HCA 17 Para 16

…, or can, take into account within the bounds of the De Simoni principle:[16] [13](1981) 147 CLR 383. [14] Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [29] per Bell and Keane JJ. [15][1996] 1 Qd R 363. [16] R v D [1996] 1 Qd R 363, 403–404. Citation omitted. “Sentencing judges ought experience little…
R v Goodwin; Ex parte Attorney-General
[2014] QCA 345 Para 11

…sentencing judge but, nonetheless, the applicant submits her Honour’s approach was in accordance with R v Goodwin; Ex parte Attorney-General (Qld) [2014] QCA 345 at [37] per Mullins J (as her Honour then was).…
R v Kowearpta
[2009] QCA 48 Para 6

…s case alongside the more usual examples of assault occasioning bodily harm in a domestic violence context. [5][2019] QCA 112. [6][2019] QCA 46. [7][2009] QCA 48.…
R v West
[2006] QCA 252 Para 49

…ions, whilst serious, were not in that category of injuries that approached grievous bodily harm or that required surgical intervention. [4][2006] QCA 252.…
R v Summers
[2004] QCA 275 Para 12

…harm simpliciter where a notional head sentence would exceed 18 months imprisonment. However, it was submitted that, scaling back from Summers [2004] QCA 275, where the offence was an aggravated offence, the notional head sentence should not have exceeded two and a half years. The facts and issues in Summers are…
R v Nagy
[2003] QCA 175 Para 26

…nlawful use of a motor vehicle offences, and then a cumulative sentence for the deprivation of liberty offence. [25] R v Nagy [2004] 1 Qd R 63; [2003] QCA 175.…
R v D
[1995] QCA 329

…ueen (2016) 256 CLR 656; [2016] HCA 17; cited R v Abdullah [2023] QCA 189, cited R v D [1996] 1 Qd R 363; [1995] QCA 329, cited R v De Simoni (1981) 147 CLR 383; [1981] HCA 31, cited R v Kowearpta [2009] QCA 48, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited R v RBE (2021) 8 QR 358; [2021] QCA 146, c…
R v De Simoni
[1981] HCA 31

…ah [2023] QCA 189, cited R v D [1996] 1 Qd R 363; [1995] QCA 329, cited R v De Simoni (1981) 147 CLR 383; [1981] HCA 31, cited R v Kowearpta [2009] QCA 48, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited R v RBE (2021) 8 QR 358; [2021] QCA 146, considered R v Rowlands [2019] QCA 112, considered R v T…

Legislation cited in this decision · 5

Evidence Act 1977 (Qld)
132C 2 mentions (from Para 14)
Criminal Law (Domestic Violence) Amendment Act 2016 (Qld)
1 mention (from Para 15)
Domestic and Family Violence Protection Act 2012 (Qld)
1 mention (from Para 5)
Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 14)
Youth Justice Act 1992 (Qld)
1 mention (from Para 14)

CITATION:	R v RBM [2024] QCA 163
PARTIES:	R v RBM (applicant)
FILE NO/S:	CA No 49 of 2024 DC No 115 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Bundaberg – Date of Sentence: 19 February 2024 (Clare SC DCJ)
DELIVERED ON:	6 September 2024
DELIVERED AT:	Brisbane
HEARING DATE:	7 August 2024
JUDGES:	Bowskill CJ and Flanagan JA and Wilson J
ORDER:	The application for leave to appeal against sentence is dismissed.
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 assault occasioning bodily harm, one count of deprivation of liberty and one count of unlawful use of a motor vehicle – where the offences were domestic violence offences – where the applicant was sentenced to six years imprisonment, three years imprisonment and six years imprisonment respectively with parole eligibility after two years – where the sentencing judge declared 384 days of pre-sentence custody as time already served under the sentence – where another 122 days of pre-sentence custody had already been declared as time served under a previous sentence – whether the sentences were manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the sentencing judge found that the applicant intended to cause severe psychological harm to the complainant – where the sentencing judge found that the applicant had an intention just short of that which would constitute torture – where none of the offences had an element of intention – where the applicant’s state of mind was not dealt with in the agreed statement of facts tendered at the sentence – where the applicant submits the Crown did not seek a finding that the applicant had this subjective intention – whether the sentencing judge impermissibly made findings of fact which infringed the principles in Strbak v The Queen Evidence Act 1977 (Qld), s 132C Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17; cited R v Abdullah [2023] QCA 189, cited R v D [1996] 1 Qd R 363; [1995] QCA 329, cited R v De Simoni (1981) 147 CLR 383; [1981] HCA 31, cited R v Kowearpta [2009] QCA 48, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited R v RBE (2021) 8 QR 358; [2021] QCA 146, considered R v Rowlands [2019] QCA 112, considered R v Thompson[2019] QCA 46, considered R v West [2006] QCA 252, considered Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10, considered
COUNSEL:	M J Jackson for the applicant R G Reid for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent