R v G; ex parte Attorney-General (No 2)
[2003] QCA 527
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- R v G; ex parte Attorney-General (No 2)[2003] QCA 527
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R v G; ex parte Attorney-General (No 2)[2003] QCA 527
R v G; ex parte Attorney-General (No 2)[2003] QCA 527
SUPREME COURT OF QUEENSLAND
CITATION: | R v G; ex parte A-G (Qld) (No 2) [2003] QCA 527 |
PARTIES: | R |
FILE NO/S: | CA No 91 of 2003 DC No 258 of 2002 DC No 383 of 2002 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Reopening (criminal) |
ORIGINATING COURT: | District Court at Southport |
DELIVERED ON: | 28 November 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 November 2003 |
JUDGES: | Davies and Williams JJA and Wilson J Judgment of the Court |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – PROOF AND EVIDENCE – PRE-SENTENCE REPORTS AND POLICE REPORTS – where applicant convicted of sexual and assault offences – where sentenced on appeal to nine years imprisonment with a serious violent offence declaration – where sentenced on basis that applicant was subject to a domestic violence order at time of commission of the offences – where that was incorrect – where counsel relied on incorrect information supplied by police – whether sentence imposed should be reduced – whether serious violent offence declaration should be removed Penalties and Sentences Act 1992 (Qld), s 188 R v G; ex parte A-G (Qld) [2003] QCA 470; CA Nos 76 and 91 of 2003, 31 October 2003, discussed |
COUNSEL: | M J Byrne QC for the applicant M J Copley for the respondent |
SOLICITORS: | Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent |
- THE COURT: This is an application brought pursuant to s 188 of the Penalties and Sentences Act 1992 for the re-opening of a sentence imposed by the Court of Appeal on 31 October 2003 on the ground that the sentence was based on a “clear factual error of substance”.
- After a trial in the District Court at Southport the applicant was convicted of one count of assault occasioning bodily harm, one count of deprivation of liberty, two counts of sexual assault with a circumstance of aggravation, one count of sexual assault, and one count of attempted rape. The victim in each case was the applicant’s de facto spouse, and the offences were committed on 10 October 2000.
- On sentence counsel for the prosecution informed the court that as at 10 October 2000 the applicant was subject to a Domestic Violence Order made in favour of his de facto spouse. In so informing the court the prosecutor was relying on information provided by the police. The sentence initially imposed, in the circumstances outlined in the reasons for judgment of this court delivered 31 October 2003, was nine years imprisonment.
- The applicant appealed against conviction and sentence, and the Attorney-General also appealed against the sentence. This court dismissed the appeal against conviction and refused the applicant leave to appeal against sentence. However, it allowed the appeal by the Attorney-General. On the hearing on 17 October 2003 each counsel made submissions based on the correctness of the proposition that the applicant was “subject to a Domestic Violence Order made in favour of the complainant” at the time the offences in question were committed. It is not necessary to repeat here the reasoning which led this court to conclude that the sentence imposed at first instance had to be set aside and the applicant re-sentenced by this court.
- In considering the appropriate sentence to impose on the applicant Williams JA (with whom the other members of the court agreed) said in paragraph [58]:
“Given the authorities to which reference has been made I am of the view that the range in all the circumstances would be nine to ten years. There was serious violence involved over a lengthy period of time, but no rape. Given the fact that the offences were committed in breach of a Domestic Violence Order I am satisfied that, notwithstanding the background of drug addiction, the appropriate sentence for count 3 was nine years imprisonment with a declaration that it was for a serious violent offence. That is the sentence which should be substituted for that imposed at first instance.”
- Subsequent investigations carried out by the Legal Aid Office cast doubt on the accuracy of the proposition that the applicant was subject to a Domestic Violence Order at the time the offences in question were committed and the application for re-opening was filed. Further investigations carried out by that office, and the office of the Director of Public Prosecutions has now confirmed the following to be the position.
- On 21 March 1997 a Domestic Violence Order was made against the applicant in favour of his de facto spouse. By its terms that order was to continue in force up to and including 20 March 1998. A further Domestic Violence Order was made against the applicant in favour of his de facto spouse on 19 May 1998, and that order by its terms was to continue in force up to and including 18 May 2000. The applicant was convicted on 16 February 1999 of breaching a Domestic Violence Order on 30 December 1998. He was convicted and fined for that offence. It is therefore clear that there was no Domestic Violence Order in force as at 10 October 2000 and it follows that the sentence imposed by this court on 17 October 2003 was based on a factual error. In the circumstances that constitutes a “clear factual error of substance” obliging this court to re-open the sentence.
- Counsel for the applicant submits that in the changed circumstances there is no proper basis for making a declaration that the conviction was for a serious violent offence. The submission on behalf of the applicant is that that declaration should be omitted leaving a head sentence of nine years imprisonment.
- Counsel for the prosecution now submits that the declaration should remain because of the extreme violence involved in the commission of the offences but that some reduction in the head sentence should be made to compensate for the factual error on which the earlier sentence was based.
- Paragraph [58] of the reasons of Williams JA must be read as a whole. When that is done it is wrong to say that the making of the declaration was premised on there being a breach of a Domestic Violence Order. As the second sentence in that paragraph recognises, there was “serious violence involved over a lengthy period of time” and that was the most critical factor in determining that a declaration should be made. The asserted breach of the Domestic Violence Order was one of the circumstances establishing nine to ten years as the range for the head sentence.
- Though there was in fact no Domestic Violence Order in operation as at the date of the commission of the offences it is nevertheless a serious feature of the applicant’s criminal history that between March 1997 and May 2000 he had been subject to two Domestic Violence Orders and had breached one of those orders in December 1998.
- In all the circumstances substituting a sentence of eight years imprisonment for count 3 with a declaration that the conviction was for a serious violent offence in lieu of a sentence of nine years imprisonment with such a declaration would more than amply correct any error based on the misconception that the applicant was subject to a Domestic Violence Order at the material time.
- The orders of the court should therefore be:
- Re-open the sentence imposed by the Court of Appeal on 31 October 2003 in CA 91 of 2003 and set aside the sentence on count 3 of nine years imprisonment with a declaration that the conviction was for a serious violent offence;
- on count 3, sexual assault with a circumstance of aggravation, sentence the applicant to eight years imprisonment with a declaration that the conviction was for a serious violent offence;
- otherwise all orders and sentences to stand.