R v TK - [2004] QCA 394

SUPREME COURT OF QUEENSLAND

CITATION:

R v TK [2004] QCA 394

PARTIES:

R
v
TK
(applicant)

FILE NO/S:

CA No 304 of 2003
DC No 622 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2004

JUDGES:

McMurdo P, Jerrard JA 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 – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – applicant convicted on guilty plea of assault occasioning bodily harm with a circumstance of aggravation and two counts of rape – originally charged with torture but entered into plea bargain – victim was 21 month old daughter of his partner – admitted to burning child with cigarette – sentenced on basis that he had inserted his penis into victim's vagina and anus – victim sustained serious injury – applicant sentenced to 16 years imprisonment and offences declared to be serious violent offences – where sentencing adjourned to obtain psychiatric report but no such report tendered at sentence – where applicant claims he had significantly increased his drug usage at time of offence and was diagnosed with schizophrenia – where applicant claims he told his solicitor that he inserted a finger or fingers, but not his penis, into child's vagina and anus – whether evidence of psychiatric report not tendered before learned sentencing judge should be received on application for leave to appeal – whether legal representatives were incompetent in not having psychiatric report prepared and in not contesting factual basis of sentence – whether sentence was manifestly excessive

Gallagher v The Queen (1986) 160 CLR 392, followed
Mickelberg v The Queen (1989) 167 CLR 259, followed
R v C [1998] QCA 207; CA No 479 of 1997, 27 May 1998, considered
R v Daphney [1999] QCA 69; CA No 328 of 1998, 16 March 1999, considered
R v Eather (1994) 71 A Crim R 305, considered
R v Luke [1987] CCA 9; CCA No 342 of 1986, 4 March 1987, considered
TKWJ v The Queen (2002) 212 CLR 124, followed

COUNSEL:

S R Lewis for the applicant
M R Byrne for the respondent

SOLICITORS:

Ryan & Bosscher for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The applicant was originally indicted on one count of torture on 28 February 2002, alternatively assault occasioning bodily harm with a circumstance of aggravation and two counts of rape on 1 March 2002, all concerning the same child complainant. On 23 May 2003, he pleaded guilty in the District Court at Brisbane to assault occasioning bodily harm with a circumstance of…

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 TK

Details

AGLC: R v TK [2004] QCA 394
Case: [2004] QCA 394
Decision Date: 22 October 2004

CaseChat Overview and Summary

In the case of R v TK, the applicant appealed against his sentence after being convicted on a guilty plea to charges of assault occasioning bodily harm with a circumstance of aggravation and two counts of rape. The victim was the 21-month-old daughter of his partner. The applicant had originally been charged with torture but entered into a plea bargain. He admitted to burning the child with a cigarette and to inserting his penis into the child's vagina and anus. The victim sustained serious injuries. The applicant was sentenced to 16 years imprisonment, with the offences declared to be serious violent offences. The sentencing was adjourned to obtain a psychiatric report, but none was tendered at the time of sentencing.

The legal issues before the court were whether evidence of the psychiatric report should be received on the application for leave to appeal, whether the legal representatives were incompetent in not having the psychiatric report prepared and in not contesting the factual basis of the sentence, and whether the sentence was manifestly excessive. The applicant argued that he had significantly increased his drug usage at the time of the offence and was diagnosed with schizophrenia. He also claimed that he told his solicitor that he inserted a finger or fingers, not his penis, into the child's vagina and anus.

The court considered the applicant's arguments and found that the evidence of the psychiatric report should not be received on the application for leave to appeal, as it was not tendered before the learned sentencing judge. The court also found that the legal representatives were not incompetent in not having the psychiatric report prepared and in not contesting the factual basis of the sentence. The court further found that the sentence was not manifestly excessive, taking into account the seriousness of the offences and the need to protect the community.

The application for leave to appeal against the sentence was refused. The court upheld the original sentence, finding that it was appropriate and proportionate to the gravity of the offences committed. The court emphasised the importance of protecting the community and ensuring that sentences reflect the severity of the crimes.

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 TK [2004] QCA 394
PARTIES:	R v TK (applicant)
FILE NO/S:	CA No 304 of 2003 DC No 622 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	22 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	18 August 2004
JUDGES:	McMurdo P, Jerrard JA 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 – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – applicant convicted on guilty plea of assault occasioning bodily harm with a circumstance of aggravation and two counts of rape – originally charged with torture but entered into plea bargain – victim was 21 month old daughter of his partner – admitted to burning child with cigarette – sentenced on basis that he had inserted his penis into victim's vagina and anus – victim sustained serious injury – applicant sentenced to 16 years imprisonment and offences declared to be serious violent offences – where sentencing adjourned to obtain psychiatric report but no such report tendered at sentence – where applicant claims he had significantly increased his drug usage at time of offence and was diagnosed with schizophrenia – where applicant claims he told his solicitor that he inserted a finger or fingers, but not his penis, into child's vagina and anus – whether evidence of psychiatric report not tendered before learned sentencing judge should be received on application for leave to appeal – whether legal representatives were incompetent in not having psychiatric report prepared and in not contesting factual basis of sentence – whether sentence was manifestly excessive Gallagher v The Queen (1986) 160 CLR 392, followed Mickelberg v The Queen (1989) 167 CLR 259, followed R v C [1998] QCA 207; CA No 479 of 1997, 27 May 1998, considered R v Daphney [1999] QCA 69; CA No 328 of 1998, 16 March 1999, considered R v Eather (1994) 71 A Crim R 305, considered R v Luke [1987] CCA 9; CCA No 342 of 1986, 4 March 1987, considered TKWJ v The Queen (2002) 212 CLR 124, followed
COUNSEL:	S R Lewis for the applicant M R Byrne for the respondent
SOLICITORS:	Ryan & Bosscher for the applicant Director of Public Prosecutions (Queensland) for the respondent