Court of Appeal

R v Choomwantha [2014] QCA 115 (13/0245) Muir and Gotterson JJA and Jackson J 23 May 2014

Full-text: QCA14-115.pdf

Catchwords

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where after a 10 day trial the applicant was convicted of abducting and raping the five year old complainant – where the applicant was sentenced to 10 years imprisonment for the rape and to a concurrent term of five years imprisonment for the abduction – where the applicant attended a birthday party at which the complainant and her family were present – where the applicant took the complainant from the yard of the house to behind a parked car – where the applicant penetrated the complainant’s vagina with his finger – whether the sentence imposed by the sentencing judge was manifestly excessive

Summary Notes

Sentence Application – where after a 10 day trial the applicant was convicted of abducting and raping the five year old complainant – where the applicant was sentenced to 10 years imprisonment for the rape and to a concurrent term of five years imprisonment for the abduction – where the applicant attended a birthday party at which the complainant and her family were present – where the applicant took the complainant from the yard of the house to behind a parked car – where the applicant penetrated the complainant’s vagina with his finger – where the sentencing judge found that the applicant created the opportunity to commit the offences by engaging with the complainant that night and that he took her away to fulfil his purpose – where the sentencing judge said in her sentencing remarks, “taking a young child away to commit an offence is a serious form of aggravation which draws a much more significant penalty than the cases such as AAD” – where as a general proposition, those observations are unexceptionable but her Honour failed to appreciate that there was a marked difference in degree between the applicant’s abduction of the child and that in R v D and R v Stoian – where in in particular: the threat of violence in R v D; the use of a knife in R v Stoian; and the criminal histories of the offenders in those cases suggest that they are not truly comparable – where in this case, the insertion of the finger caused pain and injury – where nevertheless, it did not, consistently with the principles articulated in R v McDougall and Collas, call for the making of the serious violent offence declaration sought – whether the sentence imposed by the sentencing judge was manifestly excessive. Leave granted. Appeal allowed. Sentence of 10 years imprisonment with a serious violent offence declaration be set aside and a sentence of eight years be imposed.