R v VF - [2004] QCA 239

SUPREME COURT OF QUEENSLAND

CITATION:

R v VF [2004] QCA 239

PARTIES:

R
v
VF
(applicant)

FILE NO/S:

CA No 109 of 2004
DC No 2928 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

20 July 2004

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2004

JUDGES:

Davies JA, Mackenzie and Mullins JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal against sentence refused.

2. Set aside the conviction in respect of count 9.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant sentenced to eight years’ imprisonment for each of 5 rapes committed against his daughter – whether error in finding that the age and/or health of the applicant was not a basis for mitigation of the sentence – whether sentence took into account the timely guilty pleas – whether sentence was manifestly excessive

BG (2000) 111 A Crim R 302, cited

COUNSEL:

The applicant appeared on his own behalf
R G Martin for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MULLINS J: The applicant applies for leave to appeal against the sentences imposed on him on 6 April 2004 in the District Court after pleading guilty to five counts of rape, three counts of indecent treatment of a girl under 12 years, one count of indecent treatment of a girl under 17 years and one count of indecent treatment of a girl under 16 years with a circumstance of aggravation that she was a lineal descendant.

The effective sentence that was imposed was eight years' imprisonment as that was the sentence imposed for each of the rape offences. Apart from the offence of indecent treatment of a child under 16 years where the complainant was a granddaughter of the applicant, the applicant's daughter was the complainant in respect of the offences.

The applicant was born on 17 February 1928. He was 76 years at the time of sentence. The offences against his daughter were committed when he was between 45 and 50 years and she was between 11 and 16 years old. The offence against his granddaughter was committed when he was 67 years old.

It was as a result of the granddaughter's making a complaint to the police that her mother, the applicant's daughter, complained to the police about the applicant's offending against her. Admissions were made by the applicant about his offending in a pretext telephone call with the daughter.

The detail of the abuse against the daughter were set out in a schedule tendered before the learned sentencing Judge. Aggravating features included digital penetration when the daughter was about 11 years old, penile penetration from about the same age, internal ejaculation and masturbation of the applicant by the complainant.…

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 VF

Details

AGLC: R v VF [2004] QCA 239
Case: [2004] QCA 239
Decision Date: 20 July 2004

CaseChat Overview and Summary

The applicant was convicted and sentenced to eight years’ imprisonment for each of five counts of rape against his daughter, with the sentences to run concurrently. The applicant sought leave to appeal against the sentence on the grounds that the primary judge erred in finding that his age and health were not a basis for mitigating the sentence, and that the sentence was manifestly excessive. The applicant also submitted that the sentence did not take into account his timely guilty pleas.

The legal issues before the court were whether the primary judge erred in finding that the applicant's age and health were not a basis for mitigating the sentence, and whether the sentence was manifestly excessive. The court considered the principles of sentencing and the factors that should be taken into account, including the circumstances of the offender, the nature and circumstances of the offence, and the need for deterrence and rehabilitation. The court also considered the applicant's timely guilty pleas and the impact of the offences on the victim.

The court found that there was no error in the primary judge's finding that the applicant's age and health were not a basis for mitigating the sentence. The court noted that the applicant's age and health were relevant factors to be taken into account, but that they did not outweigh the seriousness of the offences. The court also found that the sentence was not manifestly excessive, having regard to the nature and circumstances of the offences and the need for deterrence and rehabilitation. The court further found that the primary judge had appropriately taken into account the applicant's timely guilty pleas.

The court refused the application for leave to appeal against the sentence, but set aside the conviction in respect of count 9.

Orders

Orders of the court

1. Application for leave to appeal against sentence refused.

2. Set aside the conviction in respect of count 9.

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 VF [2004] QCA 239
PARTIES:	R v VF (applicant)
FILE NO/S:	CA No 109 of 2004 DC No 2928 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	20 July 2004
DELIVERED AT:	Brisbane
HEARING DATE:	20 July 2004
JUDGES:	Davies JA, Mackenzie and Mullins JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence refused. 2. Set aside the conviction in respect of count 9.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant sentenced to eight years’ imprisonment for each of 5 rapes committed against his daughter – whether error in finding that the age and/or health of the applicant was not a basis for mitigation of the sentence – whether sentence took into account the timely guilty pleas – whether sentence was manifestly excessive BG (2000) 111 A Crim R 302, cited
COUNSEL:	The applicant appeared on his own behalf R G Martin for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent