R v Spoehr - [2003] QCA 412

SUPREME COURT OF QUEENSLAND

CITATION: R v Spoehr [2003] QCA 412
PARTIES: R
v
SPOEHR, Kym
(applicant)
FILE NO/S: CA No 210 of 2003
DC No 43 of 2003
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING
COURT: District Court at Maroochydore
DELIVERED EX 16 September 2003
TEMPORE ON:
DELIVERED AT: Brisbane
HEARING DATE: 16 September 2003
JUDGES: McMurdo P, Davies and Jerrard JJA
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 – JUDGMENT AND PUNISHMENT –
SENTENCE – FACTORS TO BE TAKEN INTO
ACCOUNT – where applicant convicted of assault with
intent to rape; deprivation of liberty, sexual assault and seven
counts of rape – where applicant sentenced to 14 years
imprisonment – where applicant entered plea of guilty –
where applicant has minor criminal history - whether
sentence manifestly excessive
Criminal Code, s 27
Penalties and Sentences Act 1992 (Qld), Part 9A
R v Bryan; ex parte A-G (Qld) [2003] QCA 18; CA No 410
of 2002, 5 February 2003, applied
R v Coghlan [1997] QCA 270; CA No 139 of 1997, 5
September1997, considered
R v Henry [2002] QCA 520; CA No 272 of 2002, 27
November 2002, considered
R v Mason [1997] QCA 67; CA No 360 of 1996, 19 March
1997, considered
R v Penniment [1992] QCA 100; CA No 3 of 1992, 29 April
1992, distinguished
COUNSEL: K M McGinness for the applicant
A J Rafter for the respondent
SOLICITORS: Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the
respondent

THE PRESIDENT: The applicant was convicted on 26 May 2003 in the District Court at Maroochydore of one count of assault with intent to rape; one count of deprivation of liberty; one count of sexual assault and seven counts of rape. He was sentenced to an effective term of 14 years imprisonment and declared to be convicted of a serious violent offence; a period of 488 days was declared as time already served under the sentence. The applicant contends the sentence is manifestly excessive.

The complainant, a 29 year old Japanese woman, had been in Australian for about six months on a working holiday. She arrived in Noosa where she stayed at the Backpackers Hostel on

about 23 December 2001. On Christmas Day, she decided to walk became concerned that she had lost her way and asked the applicant for directions to return to the car park. They walked along an inland track and chatted together. After about half an hour, the applicant stopped, took a bottle from his backpack and offered her a drink. She declined, drinking from her own water bottle. She felt a blow to the back of her head which caused her to fall to her knees. She looked up to see the applicant with a stick in both his hands raised up near his head. He swung 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 Spoehr

Details

AGLC: R v Spoehr [2003] QCA 412
Case: [2003] QCA 412
Decision Date: 16/09/2003

CaseChat Overview and Summary

The case of R v Spoehr involved the applicant, who had been convicted of assault with intent to commit grievous bodily harm. The court's role was to review the sentence imposed on the applicant and determine whether it was appropriate. The applicant sought leave to appeal against the sentence, arguing that it was excessive and did not adequately take into account certain mitigating factors.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the sentencing judge had failed to consider relevant mitigating factors. The applicant argued that the sentence did not reflect the circumstances of the case and that the judge had not adequately weighed the mitigating factors presented. The prosecution, on the other hand, contended that the sentence was appropriate and that the judge had properly considered all relevant factors.

The court considered the nature and circumstances of the offence, the character and antecedents of the applicant, and any other relevant factors. The court found that the sentence was not manifestly excessive and that the judge had properly considered all relevant mitigating factors. The court concluded that the sentence was appropriate and that the applicant's appeal against sentence should be dismissed.

The court refused the applicant's application for leave to appeal against sentence. The court found that the sentence imposed was appropriate and that the judge had properly considered all relevant factors. The court did not consider it necessary to make any orders in relation to the costs of the application.

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 Spoehr [2003] QCA 412
PARTIES:	R v SPOEHR, Kym (applicant)
FILE NO/S:	CA No 210 of 2003 DC No 43 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED EX	16 September 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	16 September 2003
JUDGES:	McMurdo P, Davies and Jerrard JJA 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 – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – where applicant convicted of assault with intent to rape; deprivation of liberty, sexual assault and seven counts of rape – where applicant sentenced to 14 years imprisonment – where applicant entered plea of guilty – where applicant has minor criminal history - whether sentence manifestly excessive
Criminal Code, s 27 Penalties and Sentences Act 1992 (Qld), Part 9A
R v Bryan; ex parte A-G (Qld) [2003] QCA 18; CA No 410 of 2002, 5 February 2003, applied R v Coghlan [1997] QCA 270; CA No 139 of 1997, 5 September1997, considered R v Henry [2002] QCA 520; CA No 272 of 2002, 27 November 2002, considered R v Mason [1997] QCA 67; CA No 360 of 1996, 19 March 1997, considered R v Penniment [1992] QCA 100; CA No 3 of 1992, 29 April 1992, distinguished
COUNSEL:	K M McGinness for the applicant A J Rafter for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent