R v RDD - [2004] QCA 403

COURT OF APPEAL

McPHERSON JA
DAVIES JA
FRYBERG J

CA No 206 of 2004

THE QUEEN

RDD (Applicant)

BRISBANE

..DATE 27/10/2004

JUDGMENT

MR T MOYNIHAN (instructed by Legal Aid Queensland) for the applicant

MR R G MARTIN (instructed by Director of Public Prosecutions (Queensland)) for the respondent

McPHERSON JA: On 18th of June 2004, the applicant pleaded guilty in the District Court at Ipswich to a total of 55 offences committed against his five children. The offences consisted of 18 counts of incest, 16 counts of committing an unnatural offence, which is carnal knowledge of his children, six counts of attempting to commit an unnatural offence, four counts of indecent treatment of a boy under 14 years of age, five counts of indecent treatment of a girl under 16 years of age, four counts of indecent assault on a female, one count of an indecent act and one count of attempted incest. A number of the acts of carnal knowledge of his children counted as incest even in those days and carried with them, at that time, the penalty of life imprisonment.

He was, in fact, sentenced to 14 years' imprisonment for each of the 18 counts of incest to be served concurrently and he was given lesser concurrent terms of imprisonment for the remainder of the offences. It was recommended that he be considered for parole after serving six years of the sentence imposed. This is an application for leave to appeal against sentence on the ground that the sentence is manifestly excessive. In particular, it is submitted by defence counsel, that the sentencing Judge should have recommended the applicant for parole after four rather than six years.

All, except one, of the applicant's offences were committed in a nine year period between 1969 and 1977 when he was between 39 and 47 years of age. He was married with five children. He worked for a State entity which, in 1968, transferred him to Mt Isa and his family moved with him to that town. As a father he disciplined his children strictly including doing so by hitting them with an electric cord, and it is clear that they were afraid to disobey him or question his authority in any respect.

The applicant began to molest his three children in 1969. The eldest child R was then 15 when the applicant woke him up one night and sodomised him. He later sodomised R in front of his younger brother L, and made R and his younger brother sodomise each other while he watched them do so. The offences against R ceased at the end of 1970.

The second eldest child L was 12 or 13 when the offences against him began. The applicant sodomised him and made him sodomise his brother and his sister while the applicant watched. In addition to this, the applicant made L have sexual intercourse with his mother.

Perhaps the most serious of these appalling offences were committed against his daughter E. E was…

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 RDD

Details

AGLC: R v RDD [2004] QCA 403
Case: [2004] QCA 403
Decision Date: 27/10/2004

CaseChat Overview and Summary

The case of R v RDD is an appeal against the sentence imposed by the District Court at Ipswich on the applicant, who pleaded guilty to 55 offences committed against his five children. The Court of Appeal, comprising McPherson JA, Davies JA and Fryberg JA, heard the application for leave to appeal against the sentence, which was argued to be manifestly excessive. The applicant, who is now 73 years of age and suffers from various health problems, committed these offences between 1969 and 1987. The legal issues before the Court were whether the sentence imposed by the sentencing Judge was appropriate and whether the recommendation for parole should have been ordered to take effect after four instead of six years. The Court considered the nature and severity of the offences, the applicant's age and health, and the mitigating factors, such as his guilty plea and remorse. The Court held that the sentence imposed by the sentencing Judge was appropriate and dismissed the application for leave to appeal. The reasoning behind this decision was that the offences committed by the applicant were of the utmost depravity and that the sentence imposed was within the range of sentences that would have been appropriate if the case had gone to trial. The Court also held that the recommendation for parole after six years was appropriate, taking into account all the factors, including the applicant's age and health.

The Court of Appeal found that the sentence imposed by the sentencing Judge was appropriate and dismissed the application for leave to appeal. The Court held that the sentence of 14 years' imprisonment with a recommendation for parole after six years was within the range of sentences that would have been appropriate if the case had gone to trial. The Court considered the nature and severity of the offences, the applicant's age and health, and the mitigating factors, such as his guilty plea and remorse. The Court also held that the recommendation for parole after six years was appropriate, taking into account all the factors, including the applicant's age and health. The Court found that the applicant's age and state of ill-health attract sympathy, but it is, in fact, impossible, at this late stage, to fashion any sentence which would punish him appropriately for the immense wrongs he has done while also giving effect or consideration to all the disadvantages of age and ill-health to which he has now become subject. The Court further held that the applicant's delayed confession cannot be used to make him immune from appropriate punishment or to reduce it now to any greater degree than was allowed by the learned sentencing judge.

Orders