R v UD - [2011] QCA 307

SUPREME COURT OF QUEENSLAND

CITATION:

R v UD [2011] QCA 307

PARTIES:

R
v
UD
(applicant)

FILE NOS:

CA No 217 of 2011
DC No 1394 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

1 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

25 October 2011

JUDGES:

Margaret McMurdo P, Muir and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for an extension of time within which to appeal against conviction refused.

2. Application for an extension of time within which to obtain leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – PLEAS – GENERAL PLEAS – PLEA OF GUILTY – WITHDRAWAL AND RESTORATION OF PLEA – GENERALLY – where the applicant pleaded guilty to 22 sexual offences against five complainant children – where the applicant argued that he plead guilty on his counsel’s advice that he would receive a lesser sentence if he did so – whether the applicant should be permitted to withdraw his pleas of guilty – whether the applicant is bound by the conduct of his case by counsel at first instance – whether the convictions gave rise to a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to eight years imprisonment for one count of maintaining a relationship with a child under 12 in care, four years imprisonment for each of five counts of indecent treatment of a child under 12 in care, two years imprisonment for each of eight counts of making child exploitation material and one count of indecent treatment of a child under 12 in care, one year’s imprisonment for each of five counts of wilfully exposing a child to an indecent act, picture or object and one count of attempting to procure a child under 16 to perform an indecent act and six months imprisonment for one count of indecent treatment of a child under 12 in care – where the sentences were ordered to be served concurrently – where the head sentence of eight years was imposed at the request of the applicant’s counsel at first instance – whether the sentences imposed were manifestly excessive – whether leave to appeal against sentence should be granted

Lacey v Attorney-General of Queensland (2011) 85 ALJR 508; [2011] HCA 10, cited
Libertiv R (1991) 55 A Crim R 120, cited
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, considered
R v Auer; ex parte A-G (Qld) [2011] QCA 222, considered
R v Birks (1990) 19 NSWLR 677, cited
R v Flew [2008] QCA 290, cited
R v G [1997] 1 Qd R 584; [1995] QCA 517, cited
R v H [1999] QCA 396, considered
R v Levack; ex parte…

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 UD

Details

AGLC: R v UD [2011] QCA 307
Case: [2011] QCA 307
Decision Date: 1 November 2011

CaseChat Overview and Summary

The case of R v UD involved the applicant who had pleaded guilty to a series of sexual offences against five children under the age of 12. The applicant's counsel had advised him that a guilty plea would result in a lesser sentence. The applicant later sought to withdraw his pleas and argue that the advice given by his counsel was flawed, and that the sentences imposed were manifestly excessive. The application was heard in the relevant court, which needed to decide whether the applicant should be permitted to withdraw his pleas and whether the sentences imposed were excessive.

The court examined whether the applicant was bound by the conduct of his case by his counsel at first instance. It was established that the applicant had made an informed decision to plead guilty, and that he had not been misled by his counsel. The court further considered whether the convictions gave rise to a miscarriage of justice. The court found that the applicant's pleas were made voluntarily and that there was no miscarriage of justice. The court also examined whether the sentences imposed were manifestly excessive. After considering the nature and circumstances of the offences, the court found that the sentences imposed were not manifestly excessive.

In conclusion, the court refused the application for an extension of time within which to appeal against conviction and the application for an extension of time within which to obtain leave to appeal against sentence. The court held that the applicant was bound by the conduct of his case by his counsel at first instance, and that there was no miscarriage of justice or manifestly excessive sentences. The convictions and sentences stood as imposed by the trial judge.

Orders

Orders of the court

1. Application for an extension of time within which to appeal against conviction refused.

2. Application for an extension of time within which to obtain 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 UD [2011] QCA 307
PARTIES:	R v UD (applicant)
FILE NOS:	CA No 217 of 2011 DC No 1394 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	1 November 2011
DELIVERED AT:	Brisbane
HEARING DATE:	25 October 2011
JUDGES:	Margaret McMurdo P, Muir and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for an extension of time within which to appeal against conviction refused. 2. Application for an extension of time within which to obtain leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – PLEAS – GENERAL PLEAS – PLEA OF GUILTY – WITHDRAWAL AND RESTORATION OF PLEA – GENERALLY – where the applicant pleaded guilty to 22 sexual offences against five complainant children – where the applicant argued that he plead guilty on his counsel’s advice that he would receive a lesser sentence if he did so – whether the applicant should be permitted to withdraw his pleas of guilty – whether the applicant is bound by the conduct of his case by counsel at first instance – whether the convictions gave rise to a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to eight years imprisonment for one count of maintaining a relationship with a child under 12 in care, four years imprisonment for each of five counts of indecent treatment of a child under 12 in care, two years imprisonment for each of eight counts of making child exploitation material and one count of indecent treatment of a child under 12 in care, one year’s imprisonment for each of five counts of wilfully exposing a child to an indecent act, picture or object and one count of attempting to procure a child under 16 to perform an indecent act and six months imprisonment for one count of indecent treatment of a child under 12 in care – where the sentences were ordered to be served concurrently – where the head sentence of eight years was imposed at the request of the applicant’s counsel at first instance – whether the sentences imposed were manifestly excessive – whether leave to appeal against sentence should be granted Lacey v Attorney-General of Queensland (2011) 85 ALJR 508; [2011] HCA 10, cited Libertiv R (1991) 55 A Crim R 120, cited Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, considered R v Auer; ex parte A-G (Qld) [2011] QCA 222, considered R v Birks (1990) 19 NSWLR 677, cited R v Flew [2008] QCA 290, cited R v G [1997] 1 Qd R 584; [1995] QCA 517, cited R v H [1999] QCA 396, considered R v Levack; ex parte…