R v SDF

Case [2018] QCA 316 14 November 2018

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SUPREME COURT OF QUEENSLAND

CITATION:

R v SDF [2018] QCA 316

PARTIES:

R
v
SDF
(applicant)

FILE NO/S:

CA No 233 of 2018
DC No 257 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 11 September 2018 (Fantin DCJ)

DELIVERED ON:

14 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

9 November 2018

JUDGES:

Fraser and Philippides JJA and Boddice J

ORDERS:

1.   Grant the application.

2.   Allow the appeal.

3.   Vary the sentence imposed in the District Court by substituting imprisonment for eight months instead of 12 months and substituting two months and four days instead of four months as the period after which the term of imprisonment is suspended for an operational period of 12 months.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of indecent assault with a circumstance of aggravation that the offence was a domestic violence offence – where the applicant was sentenced to imprisonment for 12 months, suspended after four months for an operational period of 12 months – where the applicant was the complainant’s grandfather – where the at the time of the offence the applicant was 63 and the complainant was 18 – where the complainant was at home alone and had been unwell – where the applicant came over to care for her – where the applicant gave the complainant a massage and then the complainant fell asleep – where the complainant awoke to find the applicant’s hand in her pants, on the outside of her underwear, rubbing the area of her genitals for a short time – where the complainant rolled over and pretended to be asleep and the applicant left – where the applicant pleaded guilty on the day set for trial after another count was discontinued – where the applicant had no previous criminal convictions, a good work history and had not offended while on bail – where the applicant suffered from depression – where the sentencing judge found that the offence was a serious breach of trust – where it was not submitted that the offence was premeditated – where the sentencing judge made provisional comments in the course of the sentencing hearing – whether those statements demonstrated errors in finding that the offending was more serious than the comparable authorities cited to the sentencing judge – whether the sentence imposed was manifestly excessive

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v Bradford[2007] QCA 293, distinguished
R v Caulfield[2012] QCA 204, distinguished
R v Conway (2012) 223 A Crim R 244; [2012] QCA 142, applied
R v Lothian[2018] QCA 207, distinguished

COUNSEL:

J Crawford for the applicant
C Cook for the respondent

SOLICITORS:

Legal Aid…

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 SDF

Details

AGLC: R v SDF [2018] QCA 316
Case: [2018] QCA 316
Decision Date: 14 November 2018

CaseChat Overview and Summary

The applicant, SDF, appealed against the sentence imposed by the District Court following his guilty plea to one count of indecent assault with a circumstance of aggravation that the offence was a domestic violence offence. The applicant was sentenced to imprisonment for 12 months, suspended after four months for an operational period of 12 months. The applicant was the complainant’s grandfather and at the time of the offence, he was 63 years old and the complainant was 18. The applicant had come to care for the complainant who was unwell and had been at home alone. The applicant gave the complainant a massage and she fell asleep. She awoke to find the applicant’s hand in her pants, on the outside of her underwear, rubbing the area of her genitals for a short time. The applicant left when the complainant rolled over and pretended to be asleep. The applicant pleaded guilty on the day set for trial after another count was discontinued. He had no previous criminal convictions, a good work history, and had not offended while on bail. The applicant suffered from depression. The sentencing judge found that the offence was a serious breach of trust. The appeal was based on the contention that the sentence imposed was manifestly excessive, particularly in light of the age of the applicant, his relationship with the complainant, and the lack of any premeditation in the offence.

The Court considered whether the sentencing judge had erred in finding that the offending was more serious than the comparable authorities cited to the sentencing judge. The Court noted that the sentencing judge had made provisional comments in the course of the sentencing hearing, which were not subsequently amended. The Court held that the sentencing judge had not erred in finding that the offence was a serious breach of trust. However, the Court found that the sentence imposed was manifestly excessive. The Court held that the sentence was manifestly excessive due to the applicant’s age, his relationship with the complainant, and the lack of any premeditation in the offence. The Court noted that the sentence imposed was significantly longer than those imposed in comparable cases.

The Court varied the sentence imposed in the District Court by substituting imprisonment for eight months instead of 12 months and substituting two months and four days instead of four months as the period after which the term of imprisonment is suspended for an operational period of 12 months. The Court granted the application, allowed the appeal, and varied the sentence as described. The Court held that the sentence imposed was manifestly excessive and varied the sentence to reflect the circumstances of the case.

Orders

Orders of the court

1. Grant the application.

2. Allow the appeal.

3. Vary the sentence imposed in the District Court by substituting imprisonment for eight months instead of 12 months and substituting two months and four days instead of four months as the period after which the term of imprisonment is suspended for an operational period of 12 months.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

R v SDF [2018] QCA 316

Most Recent Citation

R v Beu [2025] QCA 155

Cases Citing This Decision

R v Beu [2025] QCA 155
Citation 1 (Para 15)

…ence imposed was manifestly excessive, and it was not. This ground is rejected. [1] R v SDX [No 2] [2024] QCA 78; R v MDG [2020] QCA 113; R v SDF [2018] QCA 316; R v Nelson [2018] QCA 53; R v Horvath [2014] QCA 344; R v CBI [2013] QCA 186. Operational periods…
DMS v Commissioner of Police [2020] QDC 345
Citation 2

…Act 2004 (Qld) CASES: R v Jones [2003] QCA 450 R v Bradford [2007] QCA 293 R v Manser [2010] QCA 32 R v Caulfield [2012] QCA 204 R v SFD [2018] QCA 316 R v Baldwin [2014] QCA 186 R v Benjamin Elder – Smith DCJ Brisbane District Court 30/8/17 R v Sammy Mechkor – McGinness DCJ Southport District Court 25/7/17 R v…
Andersen v Commissioner of Police [2020] QDC 23
Citation 3 (Para 22)

…R v SDF [2018] QCA 316 is also of assistance. In that case the 63 year old defendant committed an offence of sexual assault upon his 18 year old granddaughter. SDF’s conduct involved rubbing briefly on her underwear in the area of her genitals. His plea was not early; it was entered on the day fixed for trial but…

See all citing cases →

Cases Cited

R v Lothian [2018] QCA 207
Citation 1 (Para 10)

…At the sentence hearing the Crown relied upon R v Caulfield [2012] QCA 204 and R v Bradford [2007] QCA 293. Defence counsel relied upon R v Lothian [2018] QCA 207, R v M’Bie [2017] QCA 14 (and some District Court decisions upon which no reliance is placed in this application). The facts of those and other cases a…
R v Baldwin [2014] QCA 186
Citation 2 (Para 3)

…d after a trial for somewhat less serious offending committed by a 70 year old bus driver against a 16 year old child on his bus) and R v Baldwin [2014] QCA 186 (wholly suspended imprisonment of three months imposed after a trial for less serious offending by a 39 year old man against a 20 year old complainant).…
R v Caulfield [2012] QCA 204
Citation 3 (Para 10)

…At the sentence hearing the Crown relied upon R v Caulfield [2012] QCA 204 and R v Bradford [2007] QCA 293. Defence counsel relied upon R v Lothian [2018] QCA 207, R v M’Bie [2017] QCA 14 (and some District Court decisions upon which no reliance is placed in this application). The facts of those and other cases a…
R v Conway [2012] QCA 142
Citation 4 (Para 4)

…nt, the fact that the prosecutor discontinued the other count on the indictment on the morning of trial does not assist the applicant: see R v Conway [2012] QCA 142 at [31]. But for the reasons already given, despite the applicant’s serious breach of trust, the sentence of 12 months’ imprisonment with a custodial…
Hili v The Queen [2010] HCA 45
Citation 5

…ng judge – whether the sentence imposed was manifestly excessive Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Bradford [2007] QCA 293 , distinguished R v Caulfield [2012] QCA 204 , distinguished R v Conway (2012) 223 A Crim R 244; [2…
R v Bradford [2007] QCA 293
Citation 6 (Para 10)

…At the sentence hearing the Crown relied upon R v Caulfield [2012] QCA 204 and R v Bradford [2007] QCA 293. Defence counsel relied upon R v Lothian [2018] QCA 207, R v M’Bie [2017] QCA 14 (and some District Court decisions upon which no reliance is placed in this application). The facts of those and other cases a…
Markarian v The Queen [2005] HCA 25
Citation 7

…e Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Bradford [2007] QCA 293 , distinguished R v Caulfield [2012] QCA 204 , distinguished R v Conway (2012) 223 A Crim R 244; [2012] QCA 142 , applied R v Lothian [2018] QCA 207 , distinguish…
R v Jones [2003] QCA 450
Citation 8 (Para 3)

…ter a trial for much more serious offending against a 15 year old child staying in the offender’s apartment), the applicant relies upon R v Jones [2003] QCA 450 (four months imprisonment imposed after a trial for somewhat less serious offending committed by a 70 year old bus driver against a 16 year old child on…
QCA 207, R v M’Bie [2017] QCA 14
Citation 9 (Para 10)

…e Crown relied upon R v Caulfield [2012] QCA 204 and R v Bradford [2007] QCA 293. Defence counsel relied upon R v Lothian [2018] QCA 207, R v M’Bie [2017] QCA 14 (and some District Court decisions upon which no reliance is placed in this application). The facts of those and other cases are discussed in relation…

Legislation Cited

Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 8)

CITATION:	R v SDF [2018] QCA 316
PARTIES:	R v SDF (applicant)
FILE NO/S:	CA No 233 of 2018 DC No 257 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns – Date of Sentence: 11 September 2018 (Fantin DCJ)
DELIVERED ON:	14 November 2018
DELIVERED AT:	Brisbane
HEARING DATE:	9 November 2018
JUDGES:	Fraser and Philippides JJA and Boddice J
ORDERS:	1. Grant the application. 2. Allow the appeal. 3. Vary the sentence imposed in the District Court by substituting imprisonment for eight months instead of 12 months and substituting two months and four days instead of four months as the period after which the term of imprisonment is suspended for an operational period of 12 months.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of indecent assault with a circumstance of aggravation that the offence was a domestic violence offence – where the applicant was sentenced to imprisonment for 12 months, suspended after four months for an operational period of 12 months – where the applicant was the complainant’s grandfather – where the at the time of the offence the applicant was 63 and the complainant was 18 – where the complainant was at home alone and had been unwell – where the applicant came over to care for her – where the applicant gave the complainant a massage and then the complainant fell asleep – where the complainant awoke to find the applicant’s hand in her pants, on the outside of her underwear, rubbing the area of her genitals for a short time – where the complainant rolled over and pretended to be asleep and the applicant left – where the applicant pleaded guilty on the day set for trial after another count was discontinued – where the applicant had no previous criminal convictions, a good work history and had not offended while on bail – where the applicant suffered from depression – where the sentencing judge found that the offence was a serious breach of trust – where it was not submitted that the offence was premeditated – where the sentencing judge made provisional comments in the course of the sentencing hearing – whether those statements demonstrated errors in finding that the offending was more serious than the comparable authorities cited to the sentencing judge – whether the sentence imposed was manifestly excessive Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Bradford[2007] QCA 293, distinguished R v Caulfield[2012] QCA 204, distinguished R v Conway (2012) 223 A Crim R 244; [2012] QCA 142, applied R v Lothian[2018] QCA 207, distinguished
COUNSEL:	J Crawford for the applicant C Cook for the respondent
SOLICITORS:	Legal Aid…