R v S - [1998] QCA 44

IN THE COURT OF APPEAL	[1998] QCA 044
SUPREME COURT OF QUEENSLAND

C.A. No. 373 of 1997

Brisbane

[R v S]

T H E Q U E E N

v
S

(Applicant) Appellant
de Jersey CJ
Pincus JA
Muir J

Judgment delivered 20 March 1998

Separate reasons for judgment of each member of the Court; separate dissenting reasons of de
Jersey CJ.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCES IMPOSED BELOW IN RESPECT OF PROCURING A CHILD TO ENGAGE IN CARNAL KNOWLEDGE (COUNT 4) AND RAPE (COUNT 5) SET ASIDE AND IN LIEU THEREOF SENTENCES OF NINE YEARS IMPRISONMENT IMPOSED, TO BE SERVED CONCURRENTLY. OTHERWISE CONFIRM THE SENTENCES IMPOSED BELOW.

CATCHWORDS:	APPLICATION FOR LEAVE TO APPEAL against 12 year term of imprisonment of 67 year old man for rape and procuring a child to engage in carnal knowledge - whether manifestly excessive. K (C.A. No. 269 of 1993, 22 October 1993) Walker (C.A. No. 349 of 1991, 22 June 1992) G (C.A. No. 22 of 1994, 31 March 1994) Cobiac v. Liddy (1969) 119 C.L.R. 257 Yates [ 1985] V.R. 41 Hunter (1984) 36 S.A.S.R. 101 Cheng Wah [1972] Q.W.N. 45
Counsel:	Mr P. Goodwin for the applicant/appellant Mr P. Ridgway for the respondent
Solicitors:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing date:	5 November 1997
REASONS FOR JUDGMENT - de JERSEY CJ

Judgment delivered 20 March 1998

The applicant was convicted by a jury on two counts of attempted rape (rape itself having been charged), for which he was imprisoned for 5 years; one count of procuring a child to engage in carnal knowledge, and one count of rape, for each of which he was imprisoned for 12 years. The terms of 5 years and 12 years are to be served concurrently. He seeks leave to appeal against sentence, on the ground that the sentences are manifestly excessive, because the sentencing judge “gave insufficient weight to my age and personal circumstances”.

The applicant was a 67 year old man who owned a motor mower repair shop in North Ipswich. The complainant was aged 10 years at the time of the first offence of attempted rape, and 11 years at the time of the other offences. (She was born on 13 November 1985.)

At the time of the first count, the complainant was doing odd jobs for the applicant, helping with the repair of lawnmowers. The complainant said that on numerous occasions the applicant would take her into his house next door and remove his clothes. On the particular occasion the subject of this count, the applicant lay the complainant on a bed and applied some type of cream to her genital area. The complainant said the applicant “had his dick in there and had sex with me once”. He was charged with rape in respect of this incident, but the jury returned a verdict of guilty of attempted rape. The complainant made a complaint to the police…

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 44
Case: [1998] QCA 44
Decision Date: 20/03/1998

CaseChat Overview and Summary

In this appeal, the applicant sought leave to appeal against a sentence of 12 years imprisonment, with a non-parole period of 6 years, imposed for the crimes of rape and procuring a child to engage in carnal knowledge. The applicant, a 67-year-old man, argued that the sentence was manifestly excessive. The case was heard in the Court of Criminal Appeal of Australia. The central legal issue before the court was whether the sentence was manifestly excessive, considering the nature of the crimes and the age of the offender.

The court considered the relevant case law, including Walker, G, Cobiac v. Liddy, Yates, Hunter, and Cheng Wah, to determine whether the sentence imposed was manifestly excessive. The court examined the principles established in these cases to evaluate the proportionality of the sentence in light of the applicant's age and the severity of the crimes committed. The court also considered the need to deter and protect the community from the applicant's criminal conduct.

After considering the case law and the circumstances of the applicant, the court found that the sentence was not manifestly excessive. The court acknowledged the severity of the crimes but also recognised the applicant's age and the need for the sentence to reflect the gravity of the offences. The court held that the sentence imposed was proportionate and did not amount to a manifestly excessive punishment. Therefore, the application for leave to appeal was dismissed.

Orders