R v Ruiz; Ex parte - [2020] QCA 72

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ruiz; Ex parte Attorney-General (Qld) [2020] QCA 72

PARTIES:

R
v
RUIZ, Rogelio Acosta
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 325 of 2019
DC No 250 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:

District Court at Mackay – Date of Sentence: 6 November 2019 (Sheridan DCJ)

DELIVERED EX TEMPORE ON:

15 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2020

JUDGES:

Sofronoff P and McMurdo and Mullins JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – OTHER MATTERS – where the respondent was convicted of one count of rape and two counts of indecent treatment of a child under 16 who was under 12 years of age on his own pleas of guilty – where the respondent was sentenced to three years’ imprisonment on the rape count and 18 months’ imprisonment on each of the other two counts – where there were factors in mitigation – where the appellant submits that the proper sentences would have required the respondent to serve 12 months’ imprisonment, after which the sentences should not have been suspended but instead the respondent should have become eligible to apply for parole – where the appellant submits that, alternatively, if the suspension order is to remain, then the respondent should be ordered to serve three years’ probation for the two counts of indecent dealing – whether the suspension of the sentence after a year failed to give any effect to the factor of community protection after the respondent’s release – whether the sentence was manifestly inadequate

Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 9
Criminal Code (Qld)
Penalties and Sentences Act 1992 (Qld)

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered
R v Bull[2012] QCA 74, cited
R v MCB; Ex parte Attorney-General (Qld)[2014] QCA 151, cited
R v O’Sullivan; Ex parte Attorney-General (Qld); R v Lee; Ex parte Attorney-General (Qld)[2019] QCA 300, cited
R v Wilton (1981) 28 SASR 362, followed

COUNSEL:

C Heaton QC for the appellant
J Robson for the respondent

SOLICITORS:

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

SOFRONOFF P: The respondent was convicted of one count of rape and two counts of indecent treatment of a child under 16 who was under 12 years of age. He pleaded guilty, and Judge Sheridan sentenced him to three years’ imprisonment on the rape count and 18 months’ imprisonment on each of the other two counts. Her Honour ordered that the terms of imprisonment be suspended for an operational period of three years, after the respondent had served 12 months.
The Attorney-General has appealed those sentences on the ground that they are manifestly inadequate. She accepts that the terms of imprisonment imposed for the offences were not inadequate…

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 Ruiz; Ex parte

Details

AGLC: R v Ruiz; Ex parte [2020] QCA 72
Case: [2020] QCA 72
Decision Date: 15 April 2020

CaseChat Overview and Summary

The case involves an appeal by the Crown against the sentence of the respondent, who had pleaded guilty to one count of rape and two counts of indecent treatment of a child under 16. The respondent was sentenced to three years’ imprisonment for the rape count and 18 months’ imprisonment for each of the other two counts. The Crown appeals on the basis that the sentence was manifestly inadequate and did not properly reflect the seriousness of the offences committed by the respondent. The appeal raises issues concerning the appropriateness of the sentences imposed, the effect of the suspension of the sentences, and the adequacy of the sentences in light of the factors in mitigation.

The central legal issue before the court was whether the sentences imposed were manifestly inadequate and whether the court failed to give effect to the principle of community protection after the respondent's release. The Crown argued that the sentences, particularly the suspension of the sentences after a year, did not adequately reflect the seriousness of the offences and the need to protect the community. The Crown contended that the sentences should either be increased or that the suspension order should be removed, with the respondent becoming eligible for parole after serving 12 months. Alternatively, the Crown submitted that the respondent should be required to serve three years' probation for the two counts of indecent dealing if the suspension order was to remain.

In dismissing the appeal, the court found that the sentences were not manifestly inadequate. The court acknowledged the seriousness of the offences but determined that the sentences, including the suspension of the sentences after a year, were appropriate in the circumstances. The court held that the sentences adequately reflected the need for punishment and deterrence, as well as the factors in mitigation. The court also found that the sentences, as imposed, gave effect to the principle of community protection. The court concluded that the sentences were proportionate and did not fail to give effect to the overarching principle of sentencing.

Orders

Orders of the court

Appeal dismissed.

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 Ruiz; Ex parte Attorney-General (Qld) [2020] QCA 72
PARTIES:	R v RUIZ, Rogelio Acosta (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 325 of 2019 DC No 250 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT:	District Court at Mackay – Date of Sentence: 6 November 2019 (Sheridan DCJ)
DELIVERED EX TEMPORE ON:	15 April 2020
DELIVERED AT:	Brisbane
HEARING DATE:	15 April 2020
JUDGES:	Sofronoff P and McMurdo and Mullins JJA
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – OTHER MATTERS – where the respondent was convicted of one count of rape and two counts of indecent treatment of a child under 16 who was under 12 years of age on his own pleas of guilty – where the respondent was sentenced to three years’ imprisonment on the rape count and 18 months’ imprisonment on each of the other two counts – where there were factors in mitigation – where the appellant submits that the proper sentences would have required the respondent to serve 12 months’ imprisonment, after which the sentences should not have been suspended but instead the respondent should have become eligible to apply for parole – where the appellant submits that, alternatively, if the suspension order is to remain, then the respondent should be ordered to serve three years’ probation for the two counts of indecent dealing – whether the suspension of the sentence after a year failed to give any effect to the factor of community protection after the respondent’s release – whether the sentence was manifestly inadequate Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 9 Criminal Code (Qld) Penalties and Sentences Act 1992 (Qld) AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered R v Bull[2012] QCA 74, cited R v MCB; Ex parte Attorney-General (Qld)[2014] QCA 151, cited R v O’Sullivan; Ex parte Attorney-General (Qld); R v Lee; Ex parte Attorney-General (Qld)[2019] QCA 300, cited R v Wilton (1981) 28 SASR 362, followed
COUNSEL:	C Heaton QC for the appellant J Robson for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent