R v Rix

Case [2014] QCA 278 7 November 2014

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Rix [2014] QCA 278

PARTIES:

R
v
RIX, Ashley Darren
(applicant)

FILE NO/S:

CA No 51 of 2014
DC No 271 of 2013
DC No 1121 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2014

JUDGES:

Muir and Gotterson JJA and Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Grant leave to appeal against sentence.

2.    Appeal allowed.

3.    Set aside all sentences imposed on 21 February 2014 at the District Court at Brisbane.

4.    Sentence the applicant to the following terms of imprisonment, all to be served concurrently:

Count 1 on Indictment 871 of 2013 – 6 years’ imprisonment;
Count 2 on Indictment 871 of 2013 – 5 years’ imprisonment;
Count 1 on Indictment 1121 of 2013 – 9 years’ imprisonment;
Count 2 on Indictment 1121 of 2013 – 5 years’ imprisonment;
Count 3 on Indictment 1121 of 2013 – 9 years’ imprisonment;
Count 4 on Indictment 1121 of 2013 – 5 years’ imprisonment; and
Count 5 on Indictment 1121 of 2013 – 9 years’ imprisonment.

5.    Declare that in respect of each of Counts 1, 3 and 5 on Indictment 1121 of 2013, the applicant is convicted of a serious violent offence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant and complainant resided in the same unit complex – where soon after the complainant moved in, the applicant invited the complainant to his unit for drinks – where the applicant’s friend propositioned the complainant for sex on behalf of the applicant – where the complainant refused – where upon returning to her own unit the complainant found the applicant cowering inside the shower – where the complainant walked the applicant back to his unit – where later that night the applicant broke into the complainant’s unit – where the applicant attempted to hide his identity by putting on an accent – where the applicant raped the complainant orally, vaginally and anally – where the applicant went to take a shower – where the complainant ran out of the unit and informed the authorities – where the police located the applicant the following morning at his mother’s residence – where the applicant was charged with entering a dwelling by night by means of a break with intent to commit an indictable offence and rape – where the applicant pleaded guilty to all counts – where the applicant was sentenced to a total of 11 years’ imprisonment – where the applicant submitted at sentencing that he had no recollection of his offending – where the sentencing judge inferred that the applicant did have a recollection – whether the finding on the applicant’s memory loss had an adverse consequence for the applicant with…

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 Rix

Details

AGLC: R v Rix [2014] QCA 278
Case: [2014] QCA 278
Decision Date: 7 November 2014

CaseChat Overview and Summary

The case of R v Rix involved an appeal against sentence. The applicant, who had pleaded guilty to multiple counts including entering a dwelling by night with intent to commit an indictable offence and rape, sought to appeal against the sentence imposed by the District Court at Brisbane. The applicant was sentenced to a total of 11 years’ imprisonment. The applicant argued that the sentence was manifestly excessive or inadequate, and raised issues regarding the sentencing judge’s finding on the applicant’s memory loss and whether the sentence adequately reflected his military service and undiagnosed Post-Traumatic Stress Disorder (PTSD).

The court was required to determine whether the sentence was manifestly excessive or inadequate, considering the applicant's military service and PTSD, and whether the sentencing judge's finding on the applicant's memory loss had an adverse consequence for the applicant's sentencing considerations of remorse and rehabilitation. The court also had to assess if the sentence appropriately reflected the severity of the crimes committed, particularly given the applicant's background and the nature of the offences.

The court found that the sentence imposed was manifestly inadequate. The sentencing judge had failed to adequately consider the applicant's military service and his undiagnosed PTSD, which contributed to his substance abuse and ultimately his offending. The court noted that these factors should have warranted a lesser sentence, given the applicant's background and the potential for rehabilitation. Additionally, the finding on the applicant’s memory loss did not appropriately address the impact on his capacity to show remorse or the prospects for rehabilitation.

Accordingly, the court allowed the appeal, set aside the original sentences, and re-sentenced the applicant. The new sentences were structured to be concurrently served, with specific terms for each count, and declarations regarding the seriousness of certain offences. The court's decision aimed to provide a sentence that more accurately reflected the mitigating factors and the nature of the crimes.

Orders

Orders of the court

1. Grant leave to appeal against sentence.

2. Appeal allowed.

3. Set aside all sentences imposed on 21 February 2014 at the District Court at Brisbane.

4. Sentence the applicant to the following terms of imprisonment, all to be served concurrently:

Count 1 on Indictment 871 of 2013 – 6 years’ imprisonment;

Count 2 on Indictment 871 of 2013 – 5 years’ imprisonment;

Count 1 on Indictment 1121 of 2013 – 9 years’ imprisonment;

Count 2 on Indictment 1121 of 2013 – 5 years’ imprisonment;

Count 3 on Indictment 1121 of 2013 – 9 years’ imprisonment;

Count 4 on Indictment 1121 of 2013 – 5 years’ imprisonment; and

Count 5 on Indictment 1121 of 2013 – 9 years’ imprisonment.

5. Declare that in respect of each of Counts 1, 3 and 5 on Indictment 1121 of 2013, the applicant is convicted of a serious violent offence.

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 Rix [2014] QCA 278

Most Recent Citation

R v CBQ [2016] QCA 125

Cases Citing This Decision

R v Carey [2024] QCA 69
Citation 1 (Para 8)

…no reference to the relevance of the drunkenness to that offender’s culpability or the need for general or personal deterrence in that case. [19][2014] QCA 278.…
The Queen v DBW [2021] QCA 234
Citation 2

…[24] R v Rix [2014] QCA 278, R v Gesler [2016] QCA 311 and R v Ramm [2008] QCA 13.…
R v Luxford [2020] QCA 272
Citation 3 (Para 29)

…Reference was made by Mr Luxford’s counsel to R v Rix [2014] QCA 278 for the relevance of PTSD to an offender’s culpability for offending, the need for deterrence and the prospects of rehabilitation, that the condition itself or its symptoms may have.…
R v RBD [2020] QCA 136
Citation 4 (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.…
Gordon v Macarthur [2019] QDC 15
Citation 5 (Para 55)

…[30][2014] QCA 278 at [55].…
R v Gatti [2018] QCA 98
Citation 6

…sidered R v Laing [2008] QCA 317, considered R v Murray [2010] QCA 266, considered R v Piper [2015] QCA 129, considered R v Rix [2014] QCA 278, considered R v Tsiaras [1996] 1 VR 398; [1996] VicRp 26, considered R v Verdins (2007) 16 VR 269; [2007] VSCA 102, cited R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 3…
Hurley v The Commissioner of the Queensland Police Service [2017] QDC 297
Citation 7 (Para 1)

…It is uncontroversial that the evidence needs to show that the impaired mental functioning was relevant to the applicant offender.[69] In R v Rix [2014] QCA 278, Gotterson JA made the following observations which are apposite to the present circumstances:[70]…
R v Utley [2017] QCA 94
Citation 8 (Para 30)

…stress disorder and his drunkenness that night was related to alcohol abuse causally linked to his disorder. [4] R v Richards [2008] QCA 211; R v Rix [2014] QCA 278; R v FAI [2016] QCA 150.…
R v FAI [2016] QCA 150
Citation 9 (Para 5)

…as still a more severe sentence than the present applicant’s, which is unremarkable given Rix’s conduct was more protracted and invasive. [11][2014] QCA 278.…
R v CBQ [2016] QCA 125
Citation 10 (Para 12)

…ects of rehabilitation, that the condition itself or its symptoms or sequelae may have.” [13][2009] QCA 377 at [21]. [14]At [22]. [15][2014] QCA 278 per Gotterson JA at [55].…

See all citing cases →

Cases Cited

R v Gaerlan [2014] QCA 145
Citation 1

…8 U.S. 30 (2009), distinguished R v Gaerlan [2014] QCA 145, cited R v Goodger [2009] QCA 377, cited R v Mallie [2000] QCA 188, cited R v Mawson [2007] NSWSC 1473, cited R v Newton [2008] QCA 248, cited R v Price [2004] QCA 10, cited COUNSEL: P J Callaghan SC for the applicant J A Wooldridge for the respondent SOL…
R v Goodger [2009] QCA 377
Citation 2 (Para 1)

…may lessen the moral culpability of an offender and so reduce the claims of general or personal deterrence upon the sentencing discretion”. [30][2009] QCA 377 at [21].…
R v. Newton [2008] QCA 248
Citation 3

…Mawson [2007] NSWSC 1473, cited R v Newton [2008] QCA 248, cited R v Price [2004] QCA 10, cited COUNSEL: P J Callaghan SC for the applicant J A Wooldridge for the respondent SOLICITORS: Potts Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent…
Regina v Mawson [2007] NSWSC 1473
Citation 4

…R v Mallie [2000] QCA 188, cited R v Mawson [2007] NSWSC 1473, cited R v Newton [2008] QCA 248, cited R v Price [2004] QCA 10, cited COUNSEL: P J Callaghan SC for the applicant J A Wooldridge for the respondent SOLICITORS: Potts Lawyers for the applicant Director of Public Prosecutions (Queensland) for the responden…
R v Price [2004] QCA 10
Citation 5 (Para 1)

…He was sentenced to 12 years’ imprisonment for the rape and to shorter concurrent periods of imprisonment on the remaining counts. [32][2004] QCA 10.…
R v Mallie [2000] QCA 188
Citation 6 (Para 1)

…appeal against sentence, this Court noted that sentences for this type of offending tended to fall between 10 and 14 years’ imprisonment. [31][2000] QCA 188.…

Legislation Cited

Evidence Act 1977 (Qld) 132C
3 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld) 9
2 mentions (from Para 1)

CITATION:	R v Rix [2014] QCA 278
PARTIES:	R v RIX, Ashley Darren (applicant)
FILE NO/S:	CA No 51 of 2014 DC No 271 of 2013 DC No 1121 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	7 November 2014
DELIVERED AT:	Brisbane
HEARING DATE:	21 August 2014
JUDGES:	Muir and Gotterson JJA and Ann Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant leave to appeal against sentence. 2. Appeal allowed. 3. Set aside all sentences imposed on 21 February 2014 at the District Court at Brisbane. 4. Sentence the applicant to the following terms of imprisonment, all to be served concurrently: Count 1 on Indictment 871 of 2013 – 6 years’ imprisonment; Count 2 on Indictment 871 of 2013 – 5 years’ imprisonment; Count 1 on Indictment 1121 of 2013 – 9 years’ imprisonment; Count 2 on Indictment 1121 of 2013 – 5 years’ imprisonment; Count 3 on Indictment 1121 of 2013 – 9 years’ imprisonment; Count 4 on Indictment 1121 of 2013 – 5 years’ imprisonment; and Count 5 on Indictment 1121 of 2013 – 9 years’ imprisonment. 5. Declare that in respect of each of Counts 1, 3 and 5 on Indictment 1121 of 2013, the applicant is convicted of a serious violent offence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant and complainant resided in the same unit complex – where soon after the complainant moved in, the applicant invited the complainant to his unit for drinks – where the applicant’s friend propositioned the complainant for sex on behalf of the applicant – where the complainant refused – where upon returning to her own unit the complainant found the applicant cowering inside the shower – where the complainant walked the applicant back to his unit – where later that night the applicant broke into the complainant’s unit – where the applicant attempted to hide his identity by putting on an accent – where the applicant raped the complainant orally, vaginally and anally – where the applicant went to take a shower – where the complainant ran out of the unit and informed the authorities – where the police located the applicant the following morning at his mother’s residence – where the applicant was charged with entering a dwelling by night by means of a break with intent to commit an indictable offence and rape – where the applicant pleaded guilty to all counts – where the applicant was sentenced to a total of 11 years’ imprisonment – where the applicant submitted at sentencing that he had no recollection of his offending – where the sentencing judge inferred that the applicant did have a recollection – whether the finding on the applicant’s memory loss had an adverse consequence for the applicant with…