R v AAH and AAG

Case [2009] QCA 321


SUPREME COURT OF QUEENSLAND

CITATION:

R v AAH & AAG [2009] QCA 321

PARTIES:

R
v
AAH
(applicant)

R
v
AAG

(applicant)

FILE NO/S:

CA No 334 of 2008
CA No 335 of 2008
DC No 51 of 2006
DC No 635 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Applications

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

23 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

3 September 2009

JUDGES:

Fraser and Chesterman JJA and White J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Applications 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 applicants pleaded guilty to 10 counts of rape and one count of deprivation of liberty and were each sentenced to eight and a half years imprisonment with serious violent offence declarations – where applicants undertook to give evidence against co-offenders and were sentenced pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld) – whether sentences were manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – whether the parity principle should be applied – whether applicants’ sentences were excessive in view of co-offenders’ sentences

Penalties and Sentences Act 1992 (Qld), s 9(2)(i), s 13A, s 161B

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
Malvaso v The Queen (1989) 168 CLR 227; [1989] HCA 58, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
R v AAG & AAH[2009] QCA 158, considered
R v Barclay[1999] QCA 457, considered
R v Basic (2000) 115 A Crim R 456; [2000] QCA 155, considered
R v Bolton[2005] QCA 335, considered
R v D & Attorney-General of Queensland [1995] QCA 332, cited
R v Flew[2008] QCA 290, considered
R v Gerrits, unreported, Court of Criminal Appeal, CA No 158 of 1991, 4 October 1991, considered
R v Hussein & Hussein[2006] QCA 411, considered
R v Hussein & Hussein[2009] QCA 246, cited
R v Mallie[2000] QCA 188, considered
R v Mason and Saunders [1998] 2 Qd R 186; [1997] QCA 421, considered
R v Mitchell[1998] QCA 031, considered
R v Newman[2007] QCA 198, cited
R v Penniment[1992] QCA 110, considered
R v Thompson (1994) 76 A Crim R 75; [1994] QCA 393, cited
R v Wark[2008] QCA 172, considered

COUNSEL:

P E Smith for the applicants
M J Copley SC for the respondent

SOLICITORS:

Fisher Dore Lawyers for the applicants
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA: I gratefully adopt White J’s description of the factual background, the issues, and the analysis of authorities in her Honour’s reasons,…

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Details
AGLC
R v AAH and AAG [2009] QCA 321
Case
[2009] QCA 321
Decision Date

CaseChat Overview and Summary

The applicants, AAH and AAG, were convicted and sentenced to eight and a half years imprisonment each for their involvement in 10 counts of rape and one count of deprivation of liberty. They appealed against their sentences, claiming they were manifestly excessive and inadequate in light of the sentencing considerations under section 13A of the Penalties and Sentences Act 1992 (Qld). The applicants argued that their involvement in the crimes was significantly less than that of their co-offenders, and thus the parity principle should have been applied in their sentencing. They also claimed that their undertaking to give evidence against co-offenders should have resulted in a lesser sentence.

The court considered the principle of parity between co-offenders, which requires that similar sentences be imposed on those who participate in the same criminal activity. However, the court found that the sentencing judge had appropriately considered the applicants' roles in the offences and their agreements to testify against co-offenders. The court also considered the seriousness of the crimes and concluded that the sentences were not manifestly excessive or inadequate. The court held that the sentencing judge had correctly balanced the relevant factors and exercised their discretion appropriately, and therefore found no basis for interference with the applicants' sentences.

As a result of the court's decision, the applicants' applications for leave to appeal against their sentences were refused. The sentences of eight and a half years imprisonment with serious violent offence declarations remain in place. The court found that the sentences were commensurate with the gravity of the offences and that the sentencing judge had appropriately exercised their discretion in light of all the relevant factors. The applicants will continue to serve their sentences as determined by the original sentencing judge.

Orders

Orders of the court

Applications 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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