R v. Richards - [2008] QCA 211

SUPREME COURT OF QUEENSLAND

CITATION:

R v Richards [2008] QCA 211

PARTIES:

R
v
RICHARDS, Norman
(applicant/appellant)

FILE NO/S:

CA No 44 of 2008
DC No 178 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED EX TEMPORE ON:

30 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2008

JUDGE:

Fraser JA and Mackenzie AJA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   Grant the application

2.   Allow the appeal

3.   Vary the order fixing the parole eligibility date by fixing a parole eligibility date at 15 June 2010, otherwise confirm the sentence imposed in the District Court

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – OTHER OFFENCES – where applicant pleaded guilty to charges of 1 count of burglary in the night with violence while armed; 1 count of assault with intent to rape; and 1 count of rape – where applicant sentenced to eight years’ imprisonment – where applicant had served 11 months on remand which could not be declared time served – where learned sentencing judge did not make a serious violent offender declaration and reduced the head sentence by 1 year to reflect the undeclared time served on remand – whether the reduction of the sentence by 1 year to reflect the time served on remand properly compensated the application for the undeclared time served on remand

COUNSEL:

C Heaton for the applicant/appellant
M Lehane for the respondent

SOLICITORS:

Legal Aid (Queensland) for the applicant/appellant

Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree.

MACKENZIE AJA: I agree.

DUTNEY J: Norman John Richards seeks leave to appeal against a sentence of eight years' imprisonment imposed upon him by a Judge of the District Court at Rockhampton on the 31st of January 2008.

Mr Richards was charged with 1 count of burglary in the night with violence while armed; 1 count of assault with intent to rape; and 1 count of rape.

He pleaded guilty to these offences on the 17th of October 2007 and was sentenced on the 31st of January 2008. The offences were committed on the 24th of January 1999. At the time of the commission of the offences the complainant was 27 years of age. She had only recently separated from her husband and was living alone with her 22 month old daughter in a ground floor unit in North Rockhampton.

Although the complainant stated that she had no knowledge of Mr Richards prior to the commission of the offences, Mr Richards alleged that he had met her casually in the street on one previous occasion.

Just after midnight on the 24th of January 1999, Mr Richards entered the complainant's unit, he made his way into the complainant's bedroom, jumped on…

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. Richards

Details

AGLC: R v Richards [2008] QCA 211
Case: [2008] QCA 211
Decision Date: 30 July 2008

CaseChat Overview and Summary

The case of R v Richards involved an appeal by the convicted individual against the sentence imposed by the sentencing judge. The applicant had pleaded guilty to multiple serious offences, including burglary, assault with intent to rape, and rape. The sentencing judge imposed an eight-year imprisonment term, which was reduced by one year to account for the time the applicant had already served on remand. The primary issue before the court was whether the one-year reduction was sufficient compensation for the undeclared time served on remand. The applicant argued that the reduction did not properly compensate for the undeclared time served.

The court examined the relevant legislation and case law to determine whether the reduction in the sentence was appropriate. It noted that the sentencing judge had not made a serious violent offender declaration, which could have affected the overall sentence. The court concluded that the one-year reduction was a reasonable compensation for the undeclared time served on remand, as it took into account the time the applicant had already served while awaiting trial. The court also noted that the applicant's early guilty plea and the severity of the offences were considered by the sentencing judge in determining the appropriate sentence.

Consequently, the court granted the application, allowed the appeal, and varied the order fixing the parole eligibility date by fixing a parole eligibility date at 15 June 2010. The court confirmed the sentence imposed in the District Court, with the modification to the parole eligibility date. This decision highlights the importance of considering the time served on remand when determining the appropriate sentence for an offender, and the need for the court to ensure that the reduction in sentence adequately compensates for the undeclared time served.

Orders

Orders of the court

1. Grant the application

2. Allow the appeal

3. Vary the order fixing the parole eligibility date by fixing a parole eligibility date at 15 June 2010, otherwise confirm the sentence imposed in the District Court

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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CITATION:	R v Richards [2008] QCA 211
PARTIES:	R v RICHARDS, Norman (applicant/appellant)
FILE NO/S:	CA No 44 of 2008 DC No 178 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED EX TEMPORE ON:	30 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	30 July 2008
JUDGE:	Fraser JA and Mackenzie AJA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Grant the application 2. Allow the appeal 3. Vary the order fixing the parole eligibility date by fixing a parole eligibility date at 15 June 2010, otherwise confirm the sentence imposed in the District Court
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – OTHER OFFENCES – where applicant pleaded guilty to charges of 1 count of burglary in the night with violence while armed; 1 count of assault with intent to rape; and 1 count of rape – where applicant sentenced to eight years’ imprisonment – where applicant had served 11 months on remand which could not be declared time served – where learned sentencing judge did not make a serious violent offender declaration and reduced the head sentence by 1 year to reflect the undeclared time served on remand – whether the reduction of the sentence by 1 year to reflect the time served on remand properly compensated the application for the undeclared time served on remand
COUNSEL:	C Heaton for the applicant/appellant M Lehane for the respondent
SOLICITORS:	Legal Aid (Queensland) for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent