R v AAD

[2008] QCA 4

SUPREME COURT OF QUEENSLAND

CITATION:

R v AAD [2008] QCA 4

PARTIES:

R
v
AAD
(applicant/appellant)

FILE NO/S:

CA No 282 of 2007
DC No 445 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED EX TEMPORE ON:

4 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

4 February 2008

JUDGES:

de Jersey CJ, Muir JA, Fraser JA
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 granted

2.    Allow the appeal

3.    Set aside the sentence imposed at first instance, although not disturbing the declaration for pre-sentence custody as time already served, and in lieu thereof order that the applicant be imprisoned for a period of four years

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT – SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER - where applicant convicted of rape - where applicant inserted finger into vagina of six year old girl - where applicant has criminal history- where applicant 30 years old when offence was committed - where plea of guilty- whether sentence imposed was manifestly excessive

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT- SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where applicant convicted of rape- where applicant inserted finger into vagina of six year old girl - where surrounding circumstances of offence considered - whether sentence imposed erroneously took into account conduct other than that involved in the offence 

Penalties and Sentences Act 1992 (Qld) s159A

R v BBE [2006] QCA 532, considered
R v Cooksley [1982] Qd R 405, cited
R v NH [2006] QCA 476, considered
R v PAA [2006] QCA 56, considered

R v SAH [2004] QCA 329, considered

COUNSEL:

S Ryan for the appellant

G P Cash for the respondent

SOLICITORS:

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

MUIR JA:  On 26 September 2007, the 32 year old applicant was sentenced to imprisonment for five years for the digital rape of a six year old girl.

The complainant, then almost seven, was the informally adopted daughter of a woman with whom the applicant had a de facto relationship.  The appeal is on grounds that (a) the sentence was manifestly excessive and (b) the learned sentencing Judge erred by taking into account separate offences which included conduct which was not part of the offence to which the applicant pleaded guilty and which conduct was more serious than the conduct which was the subject of the guilty plea.

On 12 June 2005, in the complainant's mother's apartment, the applicant, according to the complainant, put his hands in her pants:

"touched [her] privates… [told her to go into the bedroom and lie down on the bed where] he put his hand in her pants and touched her and then he got [her] hand…