R v SDR

Case [2022] QCA 93

SUPREME COURT OF QUEENSLAND

CITATION:

R v SDR [2022] QCA 93

PARTIES:

R
v
SDR
(applicant)

FILE NO/S:

CA No 167 of 2021
DC No 885 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 11 June 2021 (Clare SC DCJ)

DELIVERED ON:

27 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

18 March 2022

JUDGES:

Fraser and Mullins JJA and Boddice J

ORDERS:

1.   Leave to appeal be granted.

2.   Appeal against sentence be allowed.

3.   The sentence of 10 years’ imprisonment imposed in respect of count 1 be set aside.

4.   The applicant be sentenced to nine years’ imprisonment in respect of count 1.

5.   The sentences in respect of the remaining counts be confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to one count of maintaining a sexual relationship with a child, two counts of rape and three counts of indecently dealing with a child under 12 years – where the applicant was sentenced to 10 years’ imprisonment, in respect of the count of maintaining a sexual relationship with a child – where the applicant was declared to have been convicted of a serious violent offence, requiring that he serve 80 per cent of his sentence before being eligible for parole – where the sentencing Judge convicted but not further punished the applicant in respect of each count of rape and one count of indecent dealing with a child under 12 years – where concurrent periods of two years’ imprisonment were imposed for the remaining counts of indecent dealing with a child under 12 years – where the applicant seeks leave to appeal the sentence – whether the sentencing judge erred in failing to invite submissions from the parties regarding the imposition of a sentence requiring an automatic serious violent offence declaration

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant seeks leave to appeal the sentence – whether the sentence is manifestly excessive in all the circumstances

R v JAB (2020) 4 QR 588; [2020] QCA 124, cited

COUNSEL:

C R Smith for the applicant
C W Wallis for the respondent

SOLICITORS:

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

  1. FRASER and MULLINS JJA:  We have had the advantage of reading in draft the reasons of Boddice J.  We gratefully adopt his Honour’s description of the circumstances of the offences to which the applicant pleaded guilty and the applicant’s personal circumstances.  Although his Honour does not find it necessary to adjudicate upon the ground of appeal that the sentence is manifestly excessive in all the circumstances, his Honour’s analysis (at [12] – [21], [25], [29], [41], [44], and [52]) informs our conclusions that the sentence imposed upon the applicant is manifestly excessive and the appropriate…

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Details
AGLC
R v SDR [2022] QCA 93
Case
[2022] QCA 93
Decision Date

CaseChat Overview and Summary

The applicant, SDR, appeals against his sentence following a guilty plea to one count of maintaining a sexual relationship with a child, two counts of rape, and three counts of indecently dealing with a child under 12 years. SDR was sentenced to 10 years’ imprisonment for the count of maintaining a sexual relationship with a child, with an 80 per cent non-parole period, and concurrent terms for the other counts. SDR argues that the sentencing judge erred in not inviting submissions from the parties regarding the imposition of a sentence that would require an automatic serious violent offence declaration and that the sentence is manifestly excessive.

The court was required to determine whether the sentencing judge erred in not inviting submissions from the parties regarding the imposition of a sentence that would require an automatic serious violent offence declaration and whether the sentence was manifestly excessive. The court found that the sentencing judge did not err in failing to invite submissions regarding the imposition of a sentence that would require an automatic serious violent offence declaration, as there is no obligation on a judge to advise counsel in advance of the sentence to be imposed. However, the principles of natural justice required the sentencing judge to give due notice as the imposition of a sentence resulting in an automatic declaration of a serious violent offence requires the sentencing judge to consider the consequences of that declaration, including the imposition of a sentence at the lower end of the comparable yardsticks, together with a consideration as to whether such a sentence properly reflects the value of any plea of guilty.

The court granted leave to appeal the sentence, set aside the sentence of 10 years’ imprisonment imposed in respect of count 1, and sentenced the applicant to nine years’ imprisonment in respect of count 1. The sentences in respect of the remaining counts were confirmed.

Orders

Orders of the court

1. Leave to appeal be granted.

2. Appeal against sentence be allowed.

3. The sentence of 10 years’ imprisonment imposed in respect of count 1 be set aside.

4. The applicant be sentenced to nine years’ imprisonment in respect of count 1.

5. The sentences in respect of the remaining counts be confirmed.

Background

Background to the litigation

The applicant seeks leave to appeal the sentence. Should leave be granted, two grounds are relied upon by the applicant. First, that the sentencing Judge erred in failing to invite submissions from the parties regarding the imposition of a sentence requiring an automatic serious violent offence declaration. Second, that the sentence is manifestly excessive in all the circumstances.Background The applicant was born on 4 January 1976. He was aged 42 to 44 years at the time of the offences. The applicant did not have any prior criminal history. He had two entries for breach of bail, subsequently. No weight was placed on these entries by the sentencing Judge. The offences related to two female complainants. At the time of the offending, the applicant was responsible for babysitting each complainant.Offences The count of maintaining, together with the counts of rape and one count of indecent dealing with a child under 12 related to the first complainant. She was aged nine to 10 years. The maintaining count covered a period of just over 13 months, during which period the applicant visited the first complainant’s home approximately once a week. The specific charges of rape concerned digital penetration and penile penetration. The indecent dealing related to touching the child’s breasts under her clothing. The remaining counts related to the second complainant. Both occurred on the same date, whilst that complainant was visiting the first complainant’s home. The second complainant was aged nine years. One count related to putting his hand in the second complainant’s swimwear and rubbing her genital area. The other count related to later rubbing her bottom. The applicant desisted when that complainant protested his conduct. The offending came to the attention of authorities when the second complainant made disclosures. Subsequent questioning of the first complainant led to disclosures of the other offending conduct. The applicant, when confronted, made admission but sought to minimise his conduct by suggesting any touching of the second complainant had been accidental. A subsequent police interview also contained admissions but with a minimisation of the severity of his conduct.Sentence hearing The prosecutor submitted that the applicant’s plea of guilty was a timely plea but noted that the conduct involved a significant breach of trust against two child victims under the age of 12 years by an offender who was more than 30 years older. The maintaining count spanned 13 months. The offending had also occurred in the first complainant’s home. Penetration included both digital and penile penetration. Further, the conduct had had a significant detrimental effect on both complainants. The prosecutor referred to a number of comparable authorities[8] before submitting that a sentence of six to eight years’ imprisonment could be within range to reflect the applicant’s criminality on a global basis with parole eligibility fixed at the one third mark.[8]R v WBL [2020] QCA 88; R v HAN [2008] QCA 106; and R v CBI [2013] QCA 186.

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

The respondent further submits that a sentence of 10 years’ imprisonment was not manifestly excessive. The applicant was a mature offender, who engaged in a protracted course of penile rape in breach of trust. There was also sexual offending against a second complainant. The pleas of guilty, although having value, were not indicative of remorse for his brazen offending, which had had a profound and significant impact on each complainant.Consideration Whilst a sentence hearing includes submissions by the prosecution and defence as to the applicable sentence for the offending conduct, the imposition of a sentence is ultimately for the sentencing Judge. Accordingly, there is no obligation upon a Judge to advise counsel in advance of the sentence to be imposed for that criminality. However, a sentence hearing, like any judicial proceeding, is subject to the principles of natural justice. Those principles require a party to be given adequate notice and opportunity to be heard before announcement of any judicial order.[11] Accordingly, there is an obligation on a sentencing Judge to advise the parties in advance if a sentencing Judge is considering making an order which the aggrieved party could not reasonably have been expected to have in mind before it was made.[12][11]Re Hamilton; Re Forrest [1981] AC 1038 at 1045.[12]Re JAB [2020] QCA 124 at [34]. What orders could reasonably have been expected to have been made is to be determined having regard to the circumstances of a particular case, including the submissions made on sentence. In the present case, both the prosecution and defence had been placed on notice by the sentencing Judge that a sentence as low as eight years did not reflect the applicant’s overall criminality, even allowing for his pleas of guilty and personal circumstances. However, that notice did not include advising that the sentencing Judge was considering the imposition of a sentence of 10 years or more, with the consequence of an automatic serious violent offence declaration. Further, it could not be said the applicant was on notice that such a sentence could reasonably be expected for his offending conduct. The prosecution had not contended for the making of a serious violent offence declaration and had referred to comparable authorities supportive of the imposition of a global head sentence far below a sentence requiring an automatic declaration of a serious violent offence. Whilst defence counsel had referred to a comparable, which involved the imposition of a sentence of 10 years’ imprisonment, those submissions were made in the context of a contention that the offending conduct in that case was far more serious. That reference, in those circumstances, did not relieve the sentencing Judge of an obligation to give notice before imposing a sentence of 10 years’ imprisonment. The principles of natural justice required the sentencing Judge to give due notice as the imposition of a sentence resulting in an automatic declaration of a serious violent offence requires the sentencing Judge to consider the consequences of that declaration, including the imposition of a sentence at the lower end of the comparable yardsticks, together with a consideration as to whether such a sentence properly reflects the value of any plea of guilty.