R v VN - [2023] QCA 220

SUPREME COURT OF QUEENSLAND

CITATION:

R v VN [2023] QCA 220

PARTIES:

R
v
VN
(applicant)

FILE NO/S:

CA No 216 of 2021
DC No 818 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 30 August 2021 (Clare SC DCJ)

DELIVERED ON:

14 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2023

JUDGES:

Bowskill CJ and Morrison and Dalton JJA

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted by a jury of three counts of rape, one count of assault with intent to commit rape and two counts of common assault – where the applicant was sentenced to 12 years’ imprisonment for each of the three counts of rape, lesser concurrent sentences for the assault with intent to rape and one count of assault, and no additional punishment for the other count of assault – where the applicant and the complainant lived in the same house and the applicant was essentially the complainant’s step-father – where the rapes occurred in the complainant’s family home – where the first rape involved force and physical violence – where the subsequent rapes were committed under the force of threats including blackmail about releasing a video of the first rape on social media – whether the sentence of 12 years was manifestly excessive in all the circumstances

Penalties and Sentences Act 1992 (Qld), s 9(2A), s 9(10A)

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
R v Benjamin (2012) 224 A Crim R 40; [2012] QCA 188, considered
R v Dendle[2019] QCA 194, considered
R v Flew[2008] QCA 290, cited
R v Heckendorf[2017] QCA 59, considered
R v Newman (2007) A Crim R 171; [2007] QCA 198, cited
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
R v SDM[2021] QCA 135, distinguished

COUNSEL:

S R Lewis for the applicant
J D Finch for the respondent

SOLICITORS:

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

THE COURT: The applicant was convicted, following a trial by jury, of three counts of rape, one count of assault with intent to commit rape and two counts of common assault. He was sentenced to 12 years’ imprisonment, concurrently, for each of the three counts of rape, with additional concurrent terms of four years’ imprisonment for the assault with intent to rape and six months’ imprisonment for one count of assault, with no additional punishment for the other count of assault.
His appeal against the convictions was dismissed on 12 September 2023: R v VN [2023] QCA 184. He applies for leave to appeal against his sentence, on the ground that the sentences imposed, in particular for each of the three…

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 VN

Details

AGLC: R v VN [2023] QCA 220
Case: [2023] QCA 220
Decision Date: 14 November 2023

CaseChat Overview and Summary

The applicant in this case was convicted by a jury of three counts of rape, one count of assault with intent to commit rape, and two counts of common assault. The applicant was sentenced to 12 years’ imprisonment for each of the three counts of rape, with lesser concurrent sentences for the assault with intent to rape and one count of assault. No additional punishment was imposed for the other count of assault. The applicant sought leave to appeal against the sentence, arguing that it was manifestly excessive. The applicant and the complainant lived in the same house, with the applicant being the complainant’s step-father. The rapes occurred in the complainant’s family home, with the first rape involving force and physical violence, and subsequent rapes being committed under the force of threats, including blackmail about releasing a video of the first rape on social media.

The court was required to determine whether the sentence of 12 years’ imprisonment for each count of rape was manifestly excessive. The court considered various factors, including the severity of the crimes, the applicant’s position of trust and authority, the impact on the complainant, and the need for deterrence and denunciation. The court also examined the sentencing principles and the appropriate range of sentences for similar offences. The court concluded that the sentence was not manifestly excessive, taking into account the gravity of the offences and the need to uphold the principle of proportionality in sentencing.

The court denied the applicant’s application for leave to appeal against sentence. The court found that the sentence imposed was within the appropriate range and did not constitute a manifest excess. The court emphasised the importance of maintaining public confidence in the criminal justice system and the need to ensure that sentences reflect the seriousness of the offences committed. The court also noted that the applicant had the right to challenge the conviction in a higher court, but the appeal against sentence was not warranted in this case.

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 VN [2023] QCA 220
PARTIES:	R v VN (applicant)
FILE NO/S:	CA No 216 of 2021 DC No 818 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 30 August 2021 (Clare SC DCJ)
DELIVERED ON:	14 November 2023
DELIVERED AT:	Brisbane
HEARING DATE:	2 November 2023
JUDGES:	Bowskill CJ and Morrison and Dalton JJA
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted by a jury of three counts of rape, one count of assault with intent to commit rape and two counts of common assault – where the applicant was sentenced to 12 years’ imprisonment for each of the three counts of rape, lesser concurrent sentences for the assault with intent to rape and one count of assault, and no additional punishment for the other count of assault – where the applicant and the complainant lived in the same house and the applicant was essentially the complainant’s step-father – where the rapes occurred in the complainant’s family home – where the first rape involved force and physical violence – where the subsequent rapes were committed under the force of threats including blackmail about releasing a video of the first rape on social media – whether the sentence of 12 years was manifestly excessive in all the circumstances Penalties and Sentences Act 1992 (Qld), s 9(2A), s 9(10A) Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited R v Benjamin (2012) 224 A Crim R 40; [2012] QCA 188, considered R v Dendle[2019] QCA 194, considered R v Flew[2008] QCA 290, cited R v Heckendorf[2017] QCA 59, considered R v Newman (2007) A Crim R 171; [2007] QCA 198, cited R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited R v SDM[2021] QCA 135, distinguished
COUNSEL:	S R Lewis for the applicant J D Finch for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent