R v S; ex parte - [2003] QCA 361

SUPREME COURT OF QUEENSLAND

CITATION: R v S; exparte A-G (Qld) [2003] QCA 361
PARTIES: R
v
S
(respondent)
EX PARTE ATTORNEY-GENERAL OF
QUEENSLAND
(appellant)
FILE NO/S: CA No 197 of 2003
DC No 59 of 2003
DIVISION: Court of Appeal
PROCEEDING: Sentence Appeal by A-G (Qld)
ORIGINATING
COURT: District Court at Bundaberg
DELIVERED EX 25 August 2003
TEMPORE ON:
DELIVERED AT: Brisbane
HEARING DATE: 25 August 2003
JUDGES: McMurdo P, Jerrard JA and Philippides J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDERS: Appeal against sentence allowed. Instead of the sentence
imposed at first instance, substitute a sentence of seven
years imprisonment with a recommendation for post
prison community based release after two and a half
years.
CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE –
APPEAL BY ATTORNEY-GENERAL – APPLICATIONS
TO INCREASE SENTENCE – where respondent pleaded
guilty to one count of procuring a sexual act by coercion, one
count of entering a dwelling with intent with a circumstance
of aggravation and one count of rape - where respondent
sentenced to an effective term of six years imprisonment with
a recommendation for post prison community based release
after two years - whether sentence fails to reflect sufficiently
the gravity of the offence – whether learned primary judge
gave too much weight to mitigating factors - whether
sentence manifestly inadequate
R v Beaver [2002] QCA 238; CA No 114 of 1992, 2 June
1992, considered
R v Hunt [1994] QCA 507; CA No 305 of 1994, 12
September 1994, considered
R v M [2001] QCA 166; CA No 221 of 2001, 1 May 2001,
distinguished
R v Stephens; ex parte A-G (Qld) [1994] QCA 507; CA No
411 of 1994, 28 November 1994, considered
COUNSEL: C W Heaton for the appellant
A W Moynihan for the respondent
SOLICITORS: Director of Public Prosecutions (Queensland) for the
appellant
Legal Aid Queensland for the respondent

THE PRESIDENT: The applicant pleaded guilty on the 22nd of May 2003 to one count of procuring a sexual act by coercion. One count of entering a dwelling with intent with a circumstance of aggravation and one count of rape. He was sentenced to an effective term of six years imprisonment with a recommendation for post prison community based release after two years. The appellant, The Honourable the Attorney-General of Queensland, appeals against that sentence contending that it is manifestly inadequate in that it fails to reflect adequately the gravity of the offence to take sufficiently into account general deterrence, and that the sentencing Judge gave too much weight to mitigating factors. Mr Heaton, on behalf of the Attorney, contends that to discount the head sentence to six years and to give the early recommendation for parole was to twice benefit the respondent with the effect that the sentence is manifestly inadequate.

The respondent was 32 when the offences occurred and 33 at sentence. The complainant was his 23 year old de facto wife…

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; ex parte

Details

AGLC: R v S; ex parte [2003] QCA 361
Case: [2003] QCA 361
Decision Date: 25/08/2003

CaseChat Overview and Summary

The case before the court involved an appeal by the Attorney-General against the sentence imposed on the respondent. The respondent had pleaded guilty to serious criminal charges, and the original sentence was being challenged as insufficient. The court was tasked with reviewing the appropriateness of the initial sentence and determining whether it should be altered. This case highlights the complex interplay between judicial discretion in sentencing and the role of appellate courts in ensuring sentences are proportionate to the severity of the crime.

The legal issues before the court were whether the sentence imposed was manifestly inadequate, and if so, what the appropriate alternative sentence should be. The court had to consider the nature and circumstances of the offence, the culpability of the respondent, and the principles of sentencing relevant to the case. The Attorney-General argued that the original sentence did not adequately reflect the seriousness of the crimes committed, while the respondent's legal team contended that the sentence was appropriate given the mitigating factors.

The court found that the original sentence was indeed inadequate in light of the severity of the crimes and the need to uphold public confidence in the criminal justice system. The court emphasised the importance of proportionality in sentencing and the need to deter similar offences in the future. After considering the evidence and arguments presented, the court substituted the original sentence with one of seven years imprisonment, with a recommendation for post-prison community-based release after two and a half years. This decision aimed to balance the need for punishment and deterrence with the principles of rehabilitation and reintegration.

The final orders of the court were to allow the appeal against the sentence, substituting the original sentence with one of seven years imprisonment, with a recommendation for post-prison community-based release after two and a half years. This outcome reflected the court's view that the original sentence was insufficient and needed to be increased to appropriately address the crimes committed.

Orders

Orders of the court

Appeal against sentence allowed. Instead of the sentence

imposed at first instance, substitute a sentence of seven

years imprisonment with a recommendation for post

prison community based release after two and a half

years.

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; exparte A-G (Qld) [2003] QCA 361
PARTIES:	R v S (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 197 of 2003 DC No 59 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Bundaberg
DELIVERED EX	25 August 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	25 August 2003
JUDGES:	McMurdo P, Jerrard JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Appeal against sentence allowed. Instead of the sentence imposed at first instance, substitute a sentence of seven years imprisonment with a recommendation for post prison community based release after two and a half years.
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL – APPLICATIONS TO INCREASE SENTENCE – where respondent pleaded guilty to one count of procuring a sexual act by coercion, one count of entering a dwelling with intent with a circumstance of aggravation and one count of rape - where respondent sentenced to an effective term of six years imprisonment with a recommendation for post prison community based release after two years - whether sentence fails to reflect sufficiently the gravity of the offence – whether learned primary judge gave too much weight to mitigating factors - whether sentence manifestly inadequate R v Beaver [2002] QCA 238; CA No 114 of 1992, 2 June 1992, considered R v Hunt [1994] QCA 507; CA No 305 of 1994, 12 September 1994, considered R v M [2001] QCA 166; CA No 221 of 2001, 1 May 2001, distinguished R v Stephens; ex parte A-G (Qld) [1994] QCA 507; CA No 411 of 1994, 28 November 1994, considered
COUNSEL:	C W Heaton for the appellant A W Moynihan for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent