R v Rodriguez - [2025] QCA 34

SUPREME COURT OF QUEENSLAND

CITATION:

R v Rodriguez [2025] QCA 34

PARTIES:

R
v
RODRIGUEZ, Rafael Eldred Denham
(applicant)

FILE NO/S:

CA No 202 of 2024
DC No 1495 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 28 August 2024 (Loury KC DCJ)

DELIVERED ON:

21 March 2025

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2025

JUDGES:

Boddice and Brown JJA and Gotterson AJA

ORDERS:

1.   Leave to appeal sentence granted.

2.   Appeal against sentence allowed.

3.   The sentence below be varied to insert “12 months” for “20 months”.

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 rape – where the applicant was sentenced to 5 years’ imprisonment, suspended after serving 20 months’ imprisonment, for an operational period of 5 years – where at the time of offending the applicant had an undiagnosed Bipolar Spectrum Disorder – where the sentencing judge found that there was no evidence of a well-founded expert opinion of impaired mental functioning which materially reduced the applicant’s moral culpability – where the applicant’s guilty plea was entered on the morning of the trial – where the sentencing judge did not accept that the plea was demonstrative of remorse – where the sentencing judge accepted that the guilty plea spared the complainant the further trauma of giving evidence – where, before entering the plea, the applicant had been given an indication by a different judge that he would receive “full credit” for his guilty plea – whether the sentencing judge erred in rejecting evidence about the effects of an undiagnosed Bipolar Spectrum Disorder – whether the sentencing proceeding miscarried because the applicant wasn’t sentenced on the basis that he would receive “full credit” for his guilty plea – whether the sentence imposed was manifestly excessive

R v Pham (2015) 256 CLR 550; [2015] HCA 39, applied

COUNSEL:

S C Holt KC for the applicant
D Nardone for the respondent

SOLICITORS:

Brooke Winter Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

BODDICE JA: The applicant pleaded guilty to one count of rape. He was sentenced to 5 years’ imprisonment, suspended after serving 20 months’ imprisonment, for an operational period of 5 years.
The applicant seeks leave to appeal against sentence. Should leave be granted, he relies on three grounds. First, the sentencing judge erred in rejecting evidence about the applicant’s reduced moral culpability because of the effects of an undiagnosed Bipolar Spectrum Disorder. Second, the sentencing proceeding miscarried because the applicant was sentenced other than on the basis that he would receive “full credit” for his guilty plea, when that indication had been given by a different judge before the plea was entered. Third, the sentence was manifestly excessive.
Offence
The offence was committed on 10 October 2021. At that time, the applicant was aged 18 years…

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 Rodriguez

Details

AGLC: R v Rodriguez [2025] QCA 34
Case: [2025] QCA 34
Decision Date: 21 March 2025

CaseChat Overview and Summary

In R v Rodriguez, the applicant appealed against the sentence imposed by the sentencing judge in the District Court of Queensland. The applicant had pleaded guilty to one count of rape and was sentenced to five years' imprisonment, suspended after serving 20 months, for an operational period of five years. The applicant contended that the sentence was manifestly excessive or inadequate, and that the sentencing proceeding miscarried due to the sentencing judge's rejection of evidence about the effects of an undiagnosed Bipolar Spectrum Disorder and the failure to sentence on the basis that he would receive "full credit" for his guilty plea.

The court examined whether the sentence imposed was manifestly excessive or inadequate, and whether there was a miscarriage of justice due to the rejection of the evidence about the applicant's mental health condition and the failure to sentence on the basis that he would receive "full credit" for his guilty plea. The court held that the sentence was manifestly excessive because the sentencing judge did not adequately consider the effects of the applicant's undiagnosed Bipolar Spectrum Disorder and the mitigating factors, including the applicant's immediate expressions of remorse, genuine attempts at rehabilitation, and the fact that his guilty plea spared the complainant the further trauma of giving evidence. The court also held that there was no miscarriage of justice due to the rejection of the evidence about the applicant's mental health condition because the applicant had not provided well-founded expert opinion of impaired mental functioning which materially reduced his moral culpability. However, the court held that there was a miscarriage of justice due to the failure to sentence on the basis that he would receive "full credit" for his guilty plea because the applicant had been given an indication by a different judge that he would receive "full credit" for his guilty plea.

The court allowed the appeal against sentence and varied the sentence to insert "12 months" for "20 months". The court held that the sentence of five years' imprisonment, suspended after serving 12 months, was appropriate because it took into account the seriousness of the offence, the need to denounce the conduct on behalf of the Queensland community and deter the applicant and others from committing the very serious offence of rape, and the mitigating factors, including the applicant's immediate expressions of remorse, genuine attempts at rehabilitation, and the fact that his guilty plea spared the complainant the further trauma of giving evidence. The court also held that the sentence was not manifestly excessive or inadequate because it was within the range of sentences that could be imposed for the offence of rape.

Orders

Orders of the court

1. Leave to appeal sentence granted.

2. Appeal against sentence allowed.

3. The sentence below be varied to insert “12 months” for “20 months”.

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

The sentencing judge concluded:“The maximum penalty against which I must consider all of these features is life imprisonment. Your offending was serious because it involved a significant breach of the trust the complainant had in you. You knew she was asleep. You violated her in an appalling way which has had profound consequences on her. Whilst you expressed remorse initially, you have minimised your offending to the psychologist and did not enter a plea of guilty until the morning of your trial in circumstances where I accept the prosecution’s case was, as a result of your admissions, a strong one.Your young age at the time of the offending remains a relevant feature, as does the absence of any previous convictions. Some leniency is often extended to youthful first offenders because of the hope that they can be rehabilitated. At the time of this offending, you were a youthful first offender. You remain a young man with a significant mental illness and I accept that there will be some hardship to you in the prison environment, which I will take into account.The sentence I impose must act to denounce your conduct on behalf of the Queensland community and must deter you and others from committing the very serious offence of rape. These are the paramount features, in my view, that impact upon the exercise of my discretion.In order to take into account the mental illness that you have which, as I have indicated, will impact upon your experience in custody, I will impose a sentence that allows me to suspend it rather than ordering your release on parole. Whilst I consider that the supervision offered by parole would be of benefit to you and the Queensland community, you have demonstrated a commitment to your own rehabilitation, you have stable accommodation and the support of your parents. Obtaining employment, which you intend to do, will also act as a protective factor.Balancing all of these features up together, I consider that the appropriate sentence is one of five years’ imprisonment, which I will suspend after you have served 20 months for an operational period of five years. You must not commit another offence punishable by imprisonment in the next five years if you are to avoid being dealt with for the suspended term of imprisonment.”[4][4]AB 65/35 – AB 66/20.Consideration It is appropriate to first consider the ground that the sentence imposed was manifestly excessive, as, if that ground succeeds, the sentencing discretion is to be re-exercised and there would be no need to consider the first two grounds. The principles relevant to this ground are not in dispute. To succeed, it is not enough for the applicant to establish the sentence was different or even markedly different to comparable cases. The applicant must establish that the sentence is so different as to demonstrate misapplication of principle, or that it is unreasonable or plainly unjust.[5][5]R v Pham (2015) 256 CLR 550, [28] per French CJ, Keane and Nettle JJ. The applicant submits that the sentence of 5 years’ imprisonment, was itself manifestly excessive. Whilst any offence of rape is serious, this offence was committed by an extremely youthful offender with no prior criminal history, in circumstances where there was no material age disparity, no gratuitous violence and the applicant was suffering from an undiagnosed mental health condition. Further, there were significant mitigating features, including immediate expressions of remorse, a plea of guilty saving the complainant the trauma of giving evidence and genuine attempts at rehabilitation, which rendered the risk of sexual re-offending low.

CITATION:	R v Rodriguez [2025] QCA 34
PARTIES:	R v RODRIGUEZ, Rafael Eldred Denham (applicant)
FILE NO/S:	CA No 202 of 2024 DC No 1495 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 28 August 2024 (Loury KC DCJ)
DELIVERED ON:	21 March 2025
DELIVERED AT:	Brisbane
HEARING DATE:	5 February 2025
JUDGES:	Boddice and Brown JJA and Gotterson AJA
ORDERS:	1. Leave to appeal sentence granted. 2. Appeal against sentence allowed. 3. The sentence below be varied to insert “12 months” for “20 months”.
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 rape – where the applicant was sentenced to 5 years’ imprisonment, suspended after serving 20 months’ imprisonment, for an operational period of 5 years – where at the time of offending the applicant had an undiagnosed Bipolar Spectrum Disorder – where the sentencing judge found that there was no evidence of a well-founded expert opinion of impaired mental functioning which materially reduced the applicant’s moral culpability – where the applicant’s guilty plea was entered on the morning of the trial – where the sentencing judge did not accept that the plea was demonstrative of remorse – where the sentencing judge accepted that the guilty plea spared the complainant the further trauma of giving evidence – where, before entering the plea, the applicant had been given an indication by a different judge that he would receive “full credit” for his guilty plea – whether the sentencing judge erred in rejecting evidence about the effects of an undiagnosed Bipolar Spectrum Disorder – whether the sentencing proceeding miscarried because the applicant wasn’t sentenced on the basis that he would receive “full credit” for his guilty plea – whether the sentence imposed was manifestly excessive R v Pham (2015) 256 CLR 550; [2015] HCA 39, applied
COUNSEL:	S C Holt KC for the applicant D Nardone for the respondent
SOLICITORS:	Brooke Winter Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent