R v SDZ - [2023] QCA 30

SUPREME COURT OF QUEENSLAND

CITATION:

R v SDZ [2023] QCA 30

PARTIES:

R
v
SDZ
(applicant)

FILE NO/S:

CA No 91 of 2022
DC No 695 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 25 March 2022 (Morzone KC DCJ)

DELIVERED ON:

Date of Order: 8 February 2023
Date of Publication of Reasons: 10 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2023; further submissions received on 27 February 2023

JUDGES:

Dalton JA and Gotterson AJA and Martin SJA

ORDER:

Date of Order: 8 February 2023

The application is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL – where the exact age of the applicant when committing the offences as a child is unknown – where the applicant submitted that his age at the time of committing the offences was misstated, together with the applicable range for juvenile rape offending being misrepresented – whether any uncertainty about whether he was under 14 years of age at the time is balanced by his plea of guilty which is a plea to all elements which must include criminal responsibility for the first rape – where leave to appeal a sentence will not be granted simply because a prosecutor might have made inaccurate or incomplete submissions about the types of sentences imposed for like offences – where an applicant must demonstrate an error on the part of the sentencing judge – whether the application for leave should be granted

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where counsel at first instance conceded appropriateness of the sentence imposed – where the applicant was sentenced as an adult for acts committed as a child – where, after Volkov, it is clear that an erroneous submission by the defendant’s counsel as to the range of sentences which might apply does not increase the burden on an applicant for leave – where the mere fact that, at first instance, it was conceded that the sentence imposed was appropriate does not preclude this court from considering the sentence and whether it demonstrated error nor does it make the task of an applicant any greater than it would have been in the absence of such a submission – whether the sentence was manifestly excessive in all of the circumstances

Criminal Code (Qld), s 29(2)

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, considered
R v Burton[2014] QCA 37, cited
R v Civcija [2018] QCA 83, cited
R v Conway (2012) 223 A Crim R 244; [2012] QCA 142, cited
R v Flew [2008] QCA 290, considered
R v Jackson[2011] QCA 103, cited
R v JJ; Ex parte Attorney-General (Qld)[2005] QCA 153, cited
R v LAL [2019] 2 Qd R 115; [2018] QCA 179, cited
R…

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 SDZ

Details

AGLC: R v SDZ [2023] QCA 30
Case: [2023] QCA 30
Decision Date: 10 March 2023

CaseChat Overview and Summary

The case of R v SDZ involved an appeal against a sentence handed down by a lower court. The applicant, SDZ, contested the sentence imposed on him, arguing that it was excessive and that there were errors in the sentencing process. The appeal was brought before the higher court, which was tasked with determining whether there were valid grounds for interfering with the sentence.

The primary legal issues the court had to decide were whether the applicant could demonstrate an error on the part of the sentencing judge and whether the sentence was manifestly excessive or inadequate. The applicant argued that his age at the time of committing the offences was misstated and that the applicable range for juvenile rape offending was misrepresented. He also contended that the prosecutor had made inaccurate or incomplete submissions about the types of sentences imposed for similar offences. The court had to consider these arguments in light of the applicant's plea of guilty and the concession made at first instance that the sentence imposed was appropriate.

The court found that the applicant had not demonstrated any error on the part of the sentencing judge. It held that the fact that the applicant's age at the time of committing the offences was uncertain did not outweigh his plea of guilty to all elements of the charges, which included criminal responsibility for the first rape. The court also noted that an erroneous submission by the defendant’s counsel regarding the range of sentences did not increase the burden on the applicant for leave. Furthermore, the court concluded that the mere concession by counsel at first instance that the sentence was appropriate did not preclude it from considering the sentence and whether it demonstrated error. In all the circumstances, the court found that the sentence was not manifestly excessive.

The application for leave to appeal was dismissed. The court ordered that the application be dismissed on 8 February 2023.

Orders

Orders of the court

Date of Order: 8 February 2023

The application is dismissed.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v SDZ [2023] QCA 30
PARTIES:	R v SDZ (applicant)
FILE NO/S:	CA No 91 of 2022 DC No 695 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns – Date of Sentence: 25 March 2022 (Morzone KC DCJ)
DELIVERED ON:	Date of Order: 8 February 2023 Date of Publication of Reasons: 10 March 2023
DELIVERED AT:	Brisbane
HEARING DATE:	8 February 2023; further submissions received on 27 February 2023
JUDGES:	Dalton JA and Gotterson AJA and Martin SJA
ORDER:	Date of Order: 8 February 2023 The application is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL – where the exact age of the applicant when committing the offences as a child is unknown – where the applicant submitted that his age at the time of committing the offences was misstated, together with the applicable range for juvenile rape offending being misrepresented – whether any uncertainty about whether he was under 14 years of age at the time is balanced by his plea of guilty which is a plea to all elements which must include criminal responsibility for the first rape – where leave to appeal a sentence will not be granted simply because a prosecutor might have made inaccurate or incomplete submissions about the types of sentences imposed for like offences – where an applicant must demonstrate an error on the part of the sentencing judge – whether the application for leave should be granted CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where counsel at first instance conceded appropriateness of the sentence imposed – where the applicant was sentenced as an adult for acts committed as a child – where, after Volkov, it is clear that an erroneous submission by the defendant’s counsel as to the range of sentences which might apply does not increase the burden on an applicant for leave – where the mere fact that, at first instance, it was conceded that the sentence imposed was appropriate does not preclude this court from considering the sentence and whether it demonstrated error nor does it make the task of an applicant any greater than it would have been in the absence of such a submission – whether the sentence was manifestly excessive in all of the circumstances Criminal Code (Qld), s 29(2) Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, considered R v Burton[2014] QCA 37, cited R v Civcija [2018] QCA 83, cited R v Conway (2012) 223 A Crim R 244; [2012] QCA 142, cited R v Flew [2008] QCA 290, considered R v Jackson[2011] QCA 103, cited R v JJ; Ex parte Attorney-General (Qld)[2005] QCA 153, cited R v LAL [2019] 2 Qd R 115; [2018] QCA 179, cited R…