R v Souter - [2002] QCA 516

SUPREME COURT OF QUEENSLAND

CITATION:

R v Souter [2002] QCA 516

PARTIES:

R
v
SOUTER, Wayne Victor
(applicant)

FILE NO/S:

CA No 268 of 2002
DC No 111 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED EXTEMPORE ON:

25 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2002

JUDGES:

Davies and Williams JJA and Helman J
Separate reasons for judgment of each member of the Court; each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - where applicant pleaded guilty to offences arising from conduct over a period of eight and a half months - where sentenced to an effective to term of eight years imprisonment - whether the sentence imposed was manifestly excessive

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - FACTORS TO BE TAKEN INTO ACCOUNT - FACTUAL BASIS FOR SENTENCE - PLEA OF GUILTY AND USE OF DEPOSITIONS - where applicant pleaded guilty to offences arising from conduct over a period of eight and a half months - where sentenced to an effective to term of eight years imprisonment - whether the learned sentencing judge made an appropriate reduction in sentence for the guilty plea

COUNSEL:

A F Maher for applicant
T A Fuller for respondent

SOLICITORS:

Forest Lake Lawyers for applicant
Director of Public Prosecutions (Queensland) for respondent

DAVIES JA: The applicant Wayne Victor Souter pleaded guilty in the District Court on 9 May 2002 to two counts of maintaining a sexual relationship with a child under 16 years with a circumstance of aggravation, four counts of sodomy and nine counts of indecent treatment of a child under 16 years with a circumstance of aggravation. The circumstance of aggravation in each of the nine counts of indecent treatment was that the child was in each case in his care and the circumstance of aggravation in the maintaining counts was that in the course of the relationship he sodomised the complainant.

On 1 August 2002, he was sentenced to an effective term of eight years imprisonment that being the term imposed on one of the two counts of maintaining a sexual relationship. On the other maintaining count he was sentenced to seven years imprisonment, he was sentenced to six years imprisonment in respect of each of the sodomy offences, he was sentenced to six years imprisonment on seven of the indecent treatment offences and he was sentenced to three years imprisonment in respect of the other two indecent treatment offences.

At the time of the commission of these offences the applicant was 37 and 38 years of age having been born on 11 July 1961. He had no relevant criminal history.

The complainants in all of the…

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 Souter

Details

AGLC: R v Souter [2002] QCA 516
Case: [2002] QCA 516
Decision Date: 25 November 2002

CaseChat Overview and Summary

The applicant, Souter, appealed against the sentence imposed by the sentencing judge in the Supreme Court of Queensland. Souter had pleaded guilty to several sexual offences which occurred over a period of eight and a half months. He was sentenced to an effective term of eight years imprisonment. Souter's appeal centred on the contention that the sentence imposed was manifestly excessive, and that the sentencing judge did not appropriately reduce the sentence for his guilty plea.

The legal issues before the court included whether the sentence imposed was manifestly excessive, and whether the sentencing judge appropriately took into account Souter's guilty plea and the factual basis for the sentence. The court was required to determine whether the sentence was within the range of appropriate sentences for the offences committed, and whether the judge had properly exercised his discretion in imposing the sentence.

The court found that the sentence imposed was not manifestly excessive, and that the sentencing judge had appropriately taken into account Souter's guilty plea and the factual basis for the sentence. The court held that the sentence was within the range of appropriate sentences for the offences committed, and that the judge had properly exercised his discretion in imposing the sentence. The court also found that the judge had appropriately reduced the sentence for Souter's guilty plea, taking into account the length of the offending and the nature of the offences.

The court ultimately refused the application for leave to appeal against sentence.

Orders

Orders of the court

Application for leave to appeal against sentence refused

Background

Background to the litigation

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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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CITATION:	R v Souter [2002] QCA 516
PARTIES:	R v SOUTER, Wayne Victor (applicant)
FILE NO/S:	CA No 268 of 2002 DC No 111 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED EXTEMPORE ON:	25 November 2002
DELIVERED AT:	Brisbane
HEARING DATE:	25 November 2002
JUDGES:	Davies and Williams JJA and Helman J Separate reasons for judgment of each member of the Court; each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - where applicant pleaded guilty to offences arising from conduct over a period of eight and a half months - where sentenced to an effective to term of eight years imprisonment - whether the sentence imposed was manifestly excessive CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - FACTORS TO BE TAKEN INTO ACCOUNT - FACTUAL BASIS FOR SENTENCE - PLEA OF GUILTY AND USE OF DEPOSITIONS - where applicant pleaded guilty to offences arising from conduct over a period of eight and a half months - where sentenced to an effective to term of eight years imprisonment - whether the learned sentencing judge made an appropriate reduction in sentence for the guilty plea
COUNSEL:	A F Maher for applicant T A Fuller for respondent
SOLICITORS:	Forest Lake Lawyers for applicant Director of Public Prosecutions (Queensland) for respondent