R v v; Ex Parte A-G (Qld) - [2003] QCA 21

SUPREME COURT OF QUEENSLAND

CITATION:

R v V; ex parte A-G (Qld)[2003] QCA 21

PARTIES:

R
v
V
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 382 of 2002
DC No 1753 of 2002
DC No 2150 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 February 2003

DELIVERED AT:

Brisbane

HEARING DATE:

30 January 2003

JUDGES:

de Jersey CJ, Williams JA and Cullinane J
Separate reasons for judgment of each member of the Court; each concurring as to the order made

ORDER:

Appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST DECENCY AND MORALITY – where respondent convicted of incest and given suspended sentence – where respondent re-offended soon after imposition of suspended sentence with respect to same complainant – where respondent intellectually impaired - whether sentencing judge gave too much weight to mitigating factors – whether respondent should serve suspended imprisonment

Penalties and Sentences Act 1992 (Qld), s 147

R v Bowen [1997] 2 Qd R 379, followed

R v Howe; ex parte Attorney-General [1994] 2 Qd R 307, considered

COUNSEL:

R G Martin for the appellant
J D Griffiths for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Smith and Associates for the respondent

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Williams JA and Cullinane J. I agree that the appeal should be dismissed for those reasons.

WILLIAMS JA: Facts relevant to this matter are set out in the reasons for judgment of Cullinane J. I agree with his reasons and only wish to add some brief observations.

It is not without significance that on sentencing the respondent with respect to the incest charges the learned sentencing judge said: “Penetration may well have been at a minimum level …”. It would appear that the earlier offences, though serious, did not have some of the aggravating features frequently associated with crimes of that kind.

The problems facing a sentencing judge when determining to what extent a suspended sentence should be activated are often complex. This case highlights that. An unusual combination of circumstances may well justify acting in a particular way which would not constitute a precedent for other cases. This is such a case. The respondent’s intellectual impairment has relevance not only to the issue of culpability, but also to his capacity to respond to the requirements of the prison system. The material does suggest that he may well be incapable of completing some of the prison programmes treated as a condition precedent to release. It would appear, for example, that he can gain more benefit from treatment and counselling outside the prison system.

The consequence of the orders the subject of the appeal is that the respondent has served a period…

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.

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Details

Case: [2003] QCA 21
Decision Date: 7 February 2003

CaseChat Overview and Summary

In the matter of R v v; Ex Parte A-G (Qld), the Attorney-General of Queensland sought an appeal against the sentence given to the respondent, who had been convicted of incest. The respondent had committed the offence against the same complainant shortly after receiving a suspended sentence for a similar crime. The respondent had an intellectual impairment, which the sentencing judge considered as a mitigating factor. The Attorney-General argued that the sentencing judge had placed too much weight on the mitigating factors and that the respondent should serve the suspended imprisonment.

The court was required to determine whether the sentencing judge had erred in considering the mitigating factors to an excessive degree and whether the respondent should serve the suspended imprisonment. The court needed to consider the impact of the intellectual impairment on the respondent's culpability and whether the sentencing judge had adequately balanced the aggravating and mitigating factors.

The court found that the sentencing judge had not erred in considering the mitigating factors. The court held that the intellectual impairment of the respondent did not absolve him of responsibility for his actions, but it did reduce his culpability. The court held that the sentencing judge had appropriately balanced the aggravating and mitigating factors and had not erred in imposing a suspended sentence. The court dismissed the appeal against sentence.

Orders

Orders of the court

Appeal against sentence dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v V; ex parte A-G (Qld)[2003] QCA 21
PARTIES:	R v V (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 382 of 2002 DC No 1753 of 2002 DC No 2150 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	7 February 2003
DELIVERED AT:	Brisbane
HEARING DATE:	30 January 2003
JUDGES:	de Jersey CJ, Williams JA and Cullinane J Separate reasons for judgment of each member of the Court; each concurring as to the order made
ORDER:	Appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST DECENCY AND MORALITY – where respondent convicted of incest and given suspended sentence – where respondent re-offended soon after imposition of suspended sentence with respect to same complainant – where respondent intellectually impaired - whether sentencing judge gave too much weight to mitigating factors – whether respondent should serve suspended imprisonment Penalties and Sentences Act 1992 (Qld), s 147 R v Bowen [1997] 2 Qd R 379, followed R v Howe; ex parte Attorney-General [1994] 2 Qd R 307, considered
COUNSEL:	R G Martin for the appellant J D Griffiths for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Smith and Associates for the respondent