R v SDM

Case [2021] QCA 135

SUPREME COURT OF QUEENSLAND

CITATION:

R v SDM [2021] QCA 135

PARTIES:

R
v
SDM
(applicant)

FILE NO/S:

CA No 238 of 2020
DC No 100 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 27 October 2020 (Fantin DCJ)

DELIVERED ON:

25 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

10 June 2021

JUDGES:

Fraser and Mullins JJA and Henry J

ORDERS:

1.   Leave to appeal granted.

2.   Direct that the applicant give any notice of abandonment of appeal to the Registrar of the Court of Appeal within 14 days of the publication of these reasons.

3.   If no such notice is received within the time specified in the preceding order, the appeal is adjourned to be disposed of on the papers in accordance with [50] of these reasons.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty and was sentenced for three counts of rape (domestic violence offence) committed on the one occasion after the complainant had ended the domestic relationship with the applicant – where the applicant was sentenced to seven years’ imprisonment for count 3 which was the most serious of the rapes and involved repeated “fisting” – where a declaration was made that the applicant was convicted of a serious violent offence in respect of count 3 – whether the sentence imposed for count 3 was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited
R v Benjamin (2012) 224 A Crim R 40; [2012] QCA 188, considered
R v Clarke[2017] QCA 226, considered
R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80; [2020] QCA 58, cited
R v Heckendorf[2017] QCA 59, considered
R v Kellett[2020] QCA 199, considered
R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited
R v Pickup[2008] QCA 350, considered

COUNSEL:

J A Greggery QC for the applicant
A Walklate for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I agree with the reasons for judgment of Mullins JA and the orders proposed by her Honour.

  2. MULLINS JA:  The applicant pleaded guilty and was sentenced on 27 October 2020 for three counts of rape (domestic violence offence).  The applicant was sentenced to six years’ imprisonment for count 1, six and one-half years’ imprisonment for count 2 and seven years’ imprisonment for count 3.  A declaration that the applicant was convicted of a serious violent offence (SVO) was made in respect of count 3.  A pre-sentence declaration was made for the one day spent in pre-sentence custody between 16 and 17 April 2018.

  3. The applicant…

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Details
AGLC
R v SDM [2021] QCA 135
Case
[2021] QCA 135
Decision Date

CaseChat Overview and Summary

In the case of R v SDM, the applicant, SDM, appeals against the sentence imposed for count 3 of the indictment, which involved aggravated rape, in the Supreme Court of Queensland. SDM was convicted of three counts of rape, all of which occurred on one occasion after the complainant had ended their domestic relationship. The applicant pleaded guilty and was sentenced to seven years’ imprisonment for count 3, which involved repeated “fisting” and was the most serious of the offences. The sentencing judge also declared that the applicant was convicted of a serious violent offence in respect of count 3. The applicant seeks leave to appeal against the sentence on the ground that it is manifestly excessive.

The legal issues before the court were whether the sentence imposed for count 3 was manifestly excessive and whether the sentence imposed was inadequately reduced for the applicant’s plea of guilty and other mitigating factors. The court considered the principles of sentencing and the relevant legislation, as well as the circumstances of the case and the impact of the offending on the complainant. The court noted that the sentencing judge had taken into account the applicant’s guilty plea and other mitigating factors, but had also considered the gravity of the offending and the need to deter and protect the community. The court found that the sentence imposed was not manifestly excessive and that the sentencing judge had adequately considered the mitigating factors.

The court held that the applicant’s appeal against sentence should be allowed. The court found that the sentence imposed for count 3 was manifestly excessive and that the making of an SVO declaration did not render the sentence excessive. The court noted that the sentencing judge had not adequately reduced the sentence for the applicant’s guilty plea and other mitigating factors, as intended by the judge. The court also found that the making of an SVO declaration did not increase the severity of the sentence, but rather reflected the gravity of the offending. The court concluded that the sentence imposed was manifestly excessive and that leave to appeal should be granted.

The orders of the court were that leave to appeal against sentence was granted, that the applicant give any notice of abandonment of appeal to the Registrar of the Court of Appeal within 14 days of the publication of these reasons and that if no such notice is received within the time specified in the preceding order, the appeal is adjourned to be disposed of on the papers. The court directed that the applicant give any notice of abandonment of appeal to the Registrar of the Court of Appeal within 14 days of the publication of these reasons. If no such notice is received within the time specified in the preceding order, the appeal is adjourned to be disposed of on the papers in accordance with [50] of these reasons.

Orders

Orders of the court

1. Leave to appeal granted.

2. Direct that the applicant give any notice of abandonment of appeal to the Registrar of the Court of Appeal within 14 days of the publication of these reasons.

3. If no such notice is received within the time specified in the preceding order, the appeal is adjourned to be disposed of on the papers in accordance with [50] of these reasons.

Background

Background to the litigation

The applicant applies for leave to appeal against the sentence imposed for count 3 on the ground the sentence is manifestly excessive. Two aspects of the sentencing are relied on to pursue the ground. The first is that the learned sentencing judge did not reduce the sentence sufficiently for the applicant’s plea of guilty and other mitigating factors, as intended by the judge. The second is that the making an SVO declaration rendered the sentence excessive.Facts There was an agreed schedule of facts. The complainant was aged 41 years at the date of the offending on 19 January 2017. The complainant and the applicant met in November 2015, commenced an intimate relationship in January 2016 and began living together in March 2016. The complainant ended the relationship on 17 January 2017. The complainant agreed to allow the applicant to stay in a spare bedroom of the house until the end of the week while he looked for new accommodation. The applicant entered the complainant’s bedroom at about 9.30 pm on 19 January 2017 and told her they were going to have sex. The complainant replied that she did not think that was a good idea and the applicant repeated “we are going to”. When the applicant pulled the covers off the complainant, she told him “No”. There was a further exchange between them when the complainant said “No. It’s not going to happen” and the applicant responded “We both know that it’s going to happen”. The applicant grabbed the complainant’s forearm and held it down on her right side, lay on top of her and removed her underwear and night gown. Penile penetration of the complainant’s vagina took place (count 1). The applicant turned the complainant on her side and inserted his penis into her anus. The complainant said “no, please don’t”, but the applicant continued to penetrate her anus, was rough, called her names and ejaculated while penetrating the complainant’s anus (count 2). The applicant then forced his whole fist into the complainant’s vagina causing her excruciating pain and repeatedly fisted her for a period of time (count 3). The applicant then told the complainant “I just punched the f**k out of you” and got off the complainant and left the room. The three rapes therefore occurred on the one occasion. The complainant was left in so much pain she was unable to sit up. Her vagina became swollen and she found it difficult to walk and sit down for a week and a half. She did not seek medical treatment for the physical injuries. She did not disclose the offending to the police until 29 July 2017. The applicant was arrested in Tasmania on 16 April 2018 and was granted bail to appear in Queensland on 2 May 2018. The applicant failed to appear in the Magistrates Court on 27 June 2018 and a warrant issued. He failed to appear again on 24 October 2018 and another warrant issued. There was a third occasion when a warrant issued. There was a registry committal on 9 December 2019. The indictment was presented on 2 March 2020. On 16 July 2020 the indictment was listed for sentence for the date on which the sentencing proceeded.The applicant’s antecedents

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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