R v TM - [2005] QCA 130

SUPREME COURT OF QUEENSLAND

CITATION:

R v TM [2005] QCA 130

PARTIES:

R
v
TM
(applicant/appellant)

FILE NO/S:

CA No 1 of 2005
DC No 453 of 2004

DC No 135 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

29 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

15 March 2005

JUDGES:

Jerrard JA, Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:

1. Grant the application for leave to appeal against sentence
2. Allow the appeal by substituting for the sentence of eight years for the count of torture a sentence of seven years

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 - where applicant/appellant convicted of three counts of digital rape, one count of torture and one count of stealing - where applicant/appellant sentenced to a total of 11 years imprisonment - where learned sentencing Judge made a declaration under s 161B(3) of the Penalties and Sentences Act 1992 (Qld) in relation to the eight years imprisonment imposed for the count of torture - whether total imprisonment imposed offends the totality principle - whether total imprisonment imposed is manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 161B

R v CL [2004] QCA 120; CA No 127 of 2003, 23 April 2004, considered
R v Roelandts [2002] QCA 254, (2002) 131 A Crim R 603, considered
R v Brown [2000] QCA 110, (2000) 110 A Crim R 499, considered

COUNSEL:

J D Henry for the applicant

R G Martin SC for the respondent

SOLICITORS:

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

JERRARD JA: In this appeal I have read and respectfully agree with the reasons for judgment of Cullinane J, and the order His Honour proposes.

CULLINANE J: The applicant seeks leave to appeal against sentences imposed on him at the District Court at Cairns on 10 December 2004 on his pleas of guilty.

He was charged on two indictments. On one he was charged with rape at Thursday Island on or about 29 August 2003. On the other he was charged with one count of torture, two counts of rape and one count of stealing at Cairns between 26 May 2004 and 28 May 2004.

He was sentenced to three years imprisonment on the rape count on the first indictment and eight years imprisonment on the count of torture on the second indictment (which was an ex officio indictment) to be served cumulatively with the term imposed for the count of rape on the first indictment. No sentences were imposed in respect of the two counts of rape on the second indictment but a term of six months imprisonment to be served concurrently with the eight years imprisonment was imposed in respect 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 TM

Details

AGLC: R v TM [2005] QCA 130
Case: [2005] QCA 130
Decision Date: 29 April 2005

CaseChat Overview and Summary

The case of R v TM involved an appeal against the sentence imposed on the applicant, who was convicted of three counts of digital rape, one count of torture, and one count of stealing. The applicant was sentenced to a total of 11 years imprisonment, with eight years imposed for the count of torture. The learned sentencing judge made a declaration under section 161B(3) of the Penalties and Sentences Act 1992 (Qld) in relation to the eight years imprisonment for the count of torture. The applicant sought leave to appeal against the sentence, arguing that the total imprisonment imposed offended the totality principle and was manifestly excessive.

The legal issues before the court were whether the total imprisonment imposed by the sentencing judge contravened the totality principle, and whether the total imprisonment was manifestly excessive. The applicant contended that the sentence was disproportionate to the crimes committed, particularly in light of the lesser sentences imposed for the other offences. The applicant also argued that the declaration made by the sentencing judge under section 161B(3) of the Penalties and Sentences Act 1992 (Qld) was not properly considered in the overall sentencing process.

The court considered the principles of sentencing and the need to balance the interests of the community, the victim, and the offender. The court noted that the sentencing judge had made a declaration under section 161B(3) of the Penalties and Sentences Act 1992 (Qld), which required the sentence to be proportionate to the seriousness of the offence. The court held that the total imprisonment imposed was manifestly excessive and contravened the totality principle. The court found that the sentence of eight years for the count of torture was disproportionate to the other offences and the overall sentence. The court allowed the appeal and substituted the sentence of eight years for the count of torture with a sentence of seven years.

The court granted the application for leave to appeal against sentence and allowed the appeal by substituting for the sentence of eight years for the count of torture a sentence of seven years. The court ordered that the total imprisonment imposed on the applicant be reduced to 10 years. The applicant's appeal was therefore successful in part, with the court reducing the sentence for the count of torture but upholding the overall sentence.

Orders

Orders of the court

1. Grant the application for leave to appeal against sentence

2. Allow the appeal by substituting for the sentence of eight years for the count of torture a sentence of seven years

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 TM [2005] QCA 130
PARTIES:	R v TM (applicant/appellant)
FILE NO/S:	CA No 1 of 2005 DC No 453 of 2004 DC No 135 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	29 April 2005
DELIVERED AT:	Brisbane
HEARING DATE:	15 March 2005
JUDGES:	Jerrard JA, Cullinane and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER:	1. Grant the application for leave to appeal against sentence 2. Allow the appeal by substituting for the sentence of eight years for the count of torture a sentence of seven years
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 - where applicant/appellant convicted of three counts of digital rape, one count of torture and one count of stealing - where applicant/appellant sentenced to a total of 11 years imprisonment - where learned sentencing Judge made a declaration under s 161B(3) of the Penalties and Sentences Act 1992 (Qld) in relation to the eight years imprisonment imposed for the count of torture - whether total imprisonment imposed offends the totality principle - whether total imprisonment imposed is manifestly excessive Penalties and Sentences Act 1992 (Qld), s 161B R v CL [2004] QCA 120; CA No 127 of 2003, 23 April 2004, considered R v Roelandts [2002] QCA 254, (2002) 131 A Crim R 603, considered R v Brown [2000] QCA 110, (2000) 110 A Crim R 499, considered
COUNSEL:	J D Henry for the applicant R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Department of Public Prosecutions (Queensland) for the respondent