R v S - [1998] QCA 313

IN THE COURT OF APPEAL [1998] QCA 313
SUPREME COURT OF QUEENSLAND
Brisbane
C.A. No. 102 of 1998
[R v. S]
THE QUEEN
v.
S

(Applicant) Appellant

C.A. No. 190 of 1998
[R. v. S; ex parte A-G]
THE QUEEN
v.
S

Respondent
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

Appellant
de Jersey C.J.
Shepherdson J.
Cullinane J.

Judgment delivered 20 October 1998
Separate reasons for judgment of each member of the Court; each concurring as to the orders made.
ATTORNEY-GENERAL’S APPEAL AGAINST SENTENCE (C.A. NO. 190 OF
1998) DISMISSED.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (C.A. NO. 102 OF 1998) GRANTED. APPEAL AGAINST SENTENCE ALLOWED. THE INDEFINITE SENTENCE IMPOSED BELOW PURSUANT TO SECTION 163 PENALTIES AND SENTENCES ACT 1992 SET ASIDE. MATTER OF SENTENCING REMITTED TO THE LEARNED SENTENCING JUDGE SO THAT HE MIGHT PROCEED ACCORDING TO LAW. PRISONER TO BE REMANDED IN CUSTODY AS NECESSARY.

CATCHWORDS:

CRIMINAL LAW - application for leave to appeal against indefinite sentence - s.163 Penalties and Sentences Act 1992 - whether prisoner "serious danger to the community" - expert medical evidence not essential prerequisite - consideration of future risks to the community necessary - 33 year old man convicted of raping and sexually assaulting with circumstances of aggravation a 14 year old girl - Attorney's appeal - whether sentence manifestly inadequate - s.166 Corrective Services Act 1988 not applicable to indefinite sentencing provisions.
R. v. Carr (1995) 84 A.Crim. R. 409
R. v. Gipters (C.A. No. 25 of 1995, 30 May 1995)
R. v. Wilson (C.A. Nos. 200 and 333 of 1996, 12 August 1997)
Counsel: Mrs D. Richards for the applicant/appellant/respondent.
Mrs L. Clare for the respondent/appellant.
Solicitors: Legal Aid Queensland for the applicant/appellant/respondent
Director of Public Prosecutions (Queensland) for the
respondent/appellant.
Hearing Date: 17 September 1998
REASONS FOR JUDGMENT - de JERSEY CJ
Judgment delivered 20 October 1998
1 The prisoner was convicted by a jury on four counts of rape and four of indecent assault with circumstances of aggravation. The learned judge imposed an indefinite sentence under s.163 of the Penalties and Sentences Act 1992. As required by s.163(2), he stated, as the “nominal sentences” he would have imposed but for the indefinite sentence, fourteen years in respect of the rapes and three and four years in respect of the indecent assaults.
2 The prisoner, then thirty-three years old, committed these offences on 5 April 1997. At that time he was on parole. It is convenient to refer now, in brief terms, to his relevant past criminal history. In 1981 he was sentenced to twelve years imprisonment for the abduction and violent sexual assault of a fifty-seven year old woman: the offences were two of rape, one of sodomy, an indecent assault involving the insertion of a capped beer bottle into her vagina, and stealing. Following his being charged and granted bail in respect of those offences, and virtually immediately upon his release, he robbed a woman at knifepoint with personal violence. For that he was sentenced in the District…

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 [1998] QCA 313
Case: [1998] QCA 313
Decision Date: 20/10/1998

CaseChat Overview and Summary

In the case of R v S, the respondent, a 33-year-old man, was convicted of raping and sexually assaulting a 14-year-old girl with circumstances of aggravation. The Crown appealed the sentence, arguing it was manifestly inadequate. The matter came before the court which had to decide whether the sentence was so inadequate that it shocked the conscience of the court and whether the indefinite sentence was justified based on the risk to the community. The appeal raised questions about the necessity of expert medical evidence in determining the risk to the community and the applicability of certain provisions of the Corrective Services Act 1988 to indefinite sentencing.

The court considered the nature of the crime and the risk the respondent posed to the community. It held that the sentence did not shock the conscience of the court and was not manifestly inadequate. The court also noted that while expert medical evidence could be useful, it was not an essential prerequisite for determining whether a prisoner was a serious danger to the community. The court found that the respondent was a serious danger to the community and that an indefinite sentence was appropriate. The court further held that section 166 of the Corrective Services Act 1988 did not apply to the indefinite sentencing provisions.

The court dismissed the appeal and upheld the original sentence. The respondent was to continue serving his indefinite sentence for the crime of raping and sexually assaulting a 14-year-old girl with circumstances of aggravation. The court's decision emphasised the importance of considering the future risks to the community in determining the appropriate sentence for serious crimes.

Orders