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R v AAH and AAG

R v AAH and AAG

Case [2009] QCA 321 23 October 2009

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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

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,…

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 AAH and AAG

Details

AGLC: R v AAH and AAG [2009] QCA 321
Case: [2009] QCA 321
Decision Date: 23 October 2009

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v AAH and AAG [2009] QCA 321

Most Recent Citation

R v Illin [2014] QCA 285

Cases citing this decision · 10 of 10 shown

R v Smith
[2019] QCA 186 Para 15

…anifests what Mason J called in Lowe v The Queen at 611, a “badge of unfairness” . ” [6][2010] QCA 87 at [12]. See also R v AAH [2009] QCA 321 at [10].…
R v Smyth
[2018] QCA 171

…46, applied Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied R v AAH & AAG (2009) 198 A Crim R 1; [2009] QCA 321 , cited COUNSEL: B J Power for the applicant C M Kelly for the respondent SOLICITORS: Fisher Dore Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respon…
R v MCP
[2018] QCA 154 Para 3

…tency between co-offenders is not necessary, and there was no justifiable sense of grievance.[3] [3]Referring to R v AAH & AAG (2009) 198 A Crim R 1; [2009] QCA 321 at [9]-[12].…
R v Olssen
[2018] QCA 114 Para 36

…the sentences reveals what Mason J called (in Lowe v The Queen at 611) a ‘badge of unfairness’.”[41] [40](2009) 198 A Crim R 1; [2009] QCA 321. [41] AAH & AAG at [9]-[10] and [21]-[22].…
R v Hughes
[2017] QCA 178 Para 26

…remarkable coincidences”[15] and the sentencing judge’s analysis of like cases as “a conventional [review]”.[16] [14](2009) 198 A Crim R 1; [2009] QCA 321. [15] Farrugia at [25]. [16] Farrugia at [36].…
R v Cunha; R v Rosso Bernardo
[2017] QCA 6 Para 5

…the sentences reveals what Mason J called (in Lowe v The Queen at 611) a ‘badge of unfairness’.”[24] [23](2009) 198 A Crim R 1; [2009] QCA 321. [24] AAH & AAG at [9], [21]-[22].…
R v Leathers
[2014] QCA 327 Para 1

…an enlargement of the field of application of the parity principle beyond that set in AAH & AAG . [20] Supra n1, at [25]. [21](2009) 198 A Crim R 1; [2009] QCA 321 at [9], [21]-[22].…
R v Illin
[2014] QCA 285 Para 1

…ing capable of applying to people who commit different offences in the course of participating in a common criminal enterprise: see R v AAH & AAG [2009] QCA 321 at [9], [21]-[22]. In Green v The Queen at 473 – 474 [30], French CJ, Crennan and Kiefel JJ adopted that approach, citing Campbell JA’s judgment in Jimmy…
The State of Western Australia v Upkett
[2013] WASCA 263

…13) 87 ALJR 1035 MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149 Neale v The Queen [1982] HCA 55; (1982) 149 CLR 305 R v AAH [2009] QCA 321; (2009) 198 A Crim R 1 Roffey v The State of Western Australia [2007] WASCA 246 Rogers v The Queen (1989) 44 A Crim R 301 The State of Western Austra…
Jimmy v R
[2010] NSWCCA 60

…v The Queen [2009] NSWCCA 25 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 Queensland v The Commonwealth (1977) 139 CLR 585 R v AAH & AAG [2009] QCA 321 R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555 R v Armstrong [2001] NSWCCA 77 R v Arnold (1993) 30 NSWLR 73 R v Christie [2000] NSWCCA 354 R v…

View all 10 citing cases →

Cases cited in this decision · 19 of 19 shown

R v Hussein & Hussein
[2009] QCA 246 Para 1

…imposed with respect to complainant D were dismissed.[5] [3] R v Hussein & Hussein [2006] QCA 411. [4]Filed 9 June 2009. [5] R v Hussein & Hussein [2009] QCA 246.…
R v AAG and AAH
[2009] QCA 158 Para 1

…s my general agreement with their Honours’ reasons, but in view of the fact that our conclusion differs from views expressed in R v AAG & AAH [2009] QCA 158, I propose to identify the matters which weighed most heavily with me in deciding that the applications should be refused.…
R v Flew
[2008] QCA 290 Para 1

…ged in vaginal sexual intercourse. Finally he made her fellate him. The complainant ran home and complained to her mother and police were called. [24][2008] QCA 290.…
R v Wark
[2008] QCA 172 Para 1

…Murdo P had anticipated might occur. I would add to White J’s analysis of those and other authorities only some further discussion about R v Wark [2008] QCA 172. In that recent case a 51 year old offender with a relatively insignificant criminal history entered an early plea of guilty. He inflicted gratuitous vio…
R v Newman
[2007] QCA 198 Para 1

…e consequences of the terrifying assault on the victim continued to the present and stressed the importance of the denunciation of such crimes. [25][2007] QCA 198.…
R v Hussein and Hussein
[2006] QCA 411 Para 1

…r a trial would probably have been sentenced to between 11 and 13 years imprisonment; (at [18] – [19]) that the analysis in R v Hussein & Hussein [2006] QCA 411 (concerning sentences imposed upon the applicants’ co-offenders) suggested error in the sentencing judge’s apparent acceptance that a 15 year term of imp…
R v Bolton
[2005] QCA 335 Para 1

…ent of 10 years for the rape. A serious violent offence declaration was made. The applicant was aged 18 and had no previous criminal history. [19][2005] QCA 335.…
R v Mallie
[2000] QCA 188

…991, 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…
R v Basic
[2000] QCA 155

…ited 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…
R v Barclay
[1999] QCA 457 Para 1

…ences. It was described as a very serious example of the offence of rape. The court regarded the sentence as supported by Penniment and Gerrits . [18][1999] QCA 457.…
R v Mitchell
[1998] QCA 31 Para 1

…al starting point) were unpersuasive in light of the applicants' relative youth and lack of prior relevant convictions; (at [13]) that R v Mitchell [1998] QCA 31 and R v Mason & Saunders [1997] QCA 421 suggested that the applicants after a trial would probably have been sentenced to between 11 and 13 years impri…
R v Mason and Saunders
[1997] QCA 421 Para 1

…light of the applicants' relative youth and lack of prior relevant convictions; (at [13]) that R v Mitchell [1998] QCA 31 and R v Mason & Saunders [1997] QCA 421 suggested that the applicants after a trial would probably have been sentenced to between 11 and 13 years imprisonment; (at [18] – [19]) that the analy…
Postiglione v the Queen
[1997] HCA 26

…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, con…
R v D & Attorney-General of Queensland
[1995] QCA 332

…5 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,…
R v Thompson
[1994] QCA 393

…onsidered 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 Pu…
R v Penniment
[1992] QCA 110 Para 1

…within a range justified by decisions of the court in recent times. The plea of guilty was recognised in the early parole recommendation. [17][1992] QCA 110.…
Malvaso v the Queen
[1989] HCA 58

…(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…
Lowe v R
[1984] HCA 46

…enders’ 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 B…
QCA 421, considered R v Mitchell
[1998] QCA 031

…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…

Legislation cited in this decision · 2

Penalties and Sentences Act 1992 (Qld)
9(2)(i) 2 mentions (from Para 1)
Drugs Misuse Act 1986 (Qld)
1 mention (from Para 1)

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