R v S - [2007] QCA 360

SUPREME COURT OF QUEENSLAND

CITATION:

R v S [2007] QCA 360

PARTIES:

R
v
S
(applicant)

FILE NO/S:

CA No 155 of 2007
DC No 260 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

26 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2007

JUDGES:

Jerrard and Keane JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application dismissed

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 REFUSED – GENERALLY – where the applicant was convicted four counts of indecent treatment of a girl under 14 years, one count of indecent treatment of a boy under 14 years, five counts of rape, and one count of unlawful carnal knowledge of a child against the order of nature – where in 2004 the applicant brought an appeal where the grounds of appeal alleged that the convictions were unsafe and unsatisfactory and not according to law, and that the sentences imposed were manifestly excessive in all the circumstances – where this Court dismissed the appeal against the convictions and the application for leave to appeal against the sentences – where the applicant applies again to reduce his sentence – whether the application is competent

Grierson v The King (1938) 60 CLR 431, followed
R v MAM[2005] QCA 323, Appeal No 118 of 2005, 30 August 2005, applied
R v Senior[2005] QCA 21, Appeal No 399 of 2005, 11 February 2005, applied

COUNSEL:

The applicant appeared on his own behalf
M J Copley for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

JERRARD JA: On 3 February 2004 this Court dismissed an appeal by Mr S against his convictions on four counts of indecent treatment of a girl under 14 years, one count of indecent treatment of a boy under 14 years, five counts of rape, and one count of unlawful carnal knowledge of a child against the order of nature. This Court also dismissed that same day an application by Mr S for leave to appeal against an effective sentence of 10 years imprisonment for those offences.

The judgment of the court (R v S [2004] QCA 3) records that Mr S had not filed a written outline of argument prior to the hearing, but that his grounds of appeal required a consideration of the whole of the evidence. Those grounds of appeal allege that the convictions were unsafe and unsatisfactory and not according to law, and that the sentences imposed were manifestly excessive in all the circumstances. The notice of appeal containing those grounds of appeal and application was dated 28 August 2003. The convictions, and the sentences, were incurred on 1…

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 S

Details

AGLC: R v S [2007] QCA 360
Case: [2007] QCA 360
Decision Date: 26 October 2007

CaseChat Overview and Summary

In the matter of R v S, the applicant was convicted of four counts of indecent treatment of a girl under 14 years, one count of indecent treatment of a boy under 14 years, five counts of rape, and one count of unlawful carnal knowledge of a child against the order of nature. The applicant originally appealed against his convictions and sentences in 2004, claiming that the convictions were unsafe and unsatisfactory and not according to law, and that the sentences imposed were manifestly excessive in all the circumstances. This Court dismissed the appeal against the convictions and the application for leave to appeal against the sentences.

The legal issue before the court was whether the applicant's current application to reduce his sentence was competent. The applicant argued that there were significant and compelling circumstances that justified a reduction in his sentence. The court considered the principles governing applications to reduce sentences and the circumstances of the case. It found that the applicant had not demonstrated any significant and compelling circumstances that would warrant a reduction in his sentence.

The court dismissed the application to reduce the applicant's sentence. It held that the applicant had not established any grounds for reducing his sentence, and that the original sentence was appropriate in all the circumstances. The court noted that the applicant had been convicted of serious sexual offences against children, and that the sentence imposed reflected the gravity of the offences. The court concluded that there were no compelling circumstances that warranted a reduction in the sentence. The application was dismissed.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v S [2007] QCA 360
PARTIES:	R v S (applicant)
FILE NO/S:	CA No 155 of 2007 DC No 260 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	26 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	17 October 2007
JUDGES:	Jerrard and Keane JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application dismissed
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 REFUSED – GENERALLY – where the applicant was convicted four counts of indecent treatment of a girl under 14 years, one count of indecent treatment of a boy under 14 years, five counts of rape, and one count of unlawful carnal knowledge of a child against the order of nature – where in 2004 the applicant brought an appeal where the grounds of appeal alleged that the convictions were unsafe and unsatisfactory and not according to law, and that the sentences imposed were manifestly excessive in all the circumstances – where this Court dismissed the appeal against the convictions and the application for leave to appeal against the sentences – where the applicant applies again to reduce his sentence – whether the application is competent Grierson v The King (1938) 60 CLR 431, followed R v MAM[2005] QCA 323, Appeal No 118 of 2005, 30 August 2005, applied R v Senior[2005] QCA 21, Appeal No 399 of 2005, 11 February 2005, applied
COUNSEL:	The applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent