R v AAW - [2015] QCA 164

SUPREME COURT OF QUEENSLAND

CITATION:

R v AAW [2015] QCA 164

PARTIES:

R
v
AAW
(applicant)

FILE NO/S:

CA No 298 of 2014
DC No 144 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maryborough – Unreported, 16 October 2014

DELIVERED ON:

4 September 2015

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2015

JUDGES:

Fraser and Gotterson and Philippides JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application 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 the applicant was convicted on a plea of guilty to a count alleging an offence against s 320A of the Criminal Code (Qld) – where the applicant was sentenced to seven years’ imprisonment and a serious violent offence declaration was made – where a period of 118 days in custody was declared to be time served under the sentence – where the complainant was a teenage boy and the applicant was the complainant’s aunt – where the applicant and her daughter subjected the complainant to numerous indecencies over a period of five months as outlined in the Statement of Facts provided by the Crown – where the applicant had two prior convictions for offences of violence and a conviction for ill-treating a German shepherd dog – where the learned sentencing judge outlined the applicant’s offending which she described as “a depraved and protracted course of conduct” and considered that personal deterrence was an important part of the sentence – whether the sentence imposed was manifestly excessive

Criminal Code (Qld), s 320A
Penalties and Sentences Act 1992 (Qld), s 161B

R v B; ex parte Attorney Generalof Qld (2000) 110 A Crim R 499; [2000] QCA 110, considered
R v HAC[2006] QCA 460, considered

COUNSEL:

The applicant appeared on her own behalf
D Balic for the respondent

SOLICITORS:

The applicant appeared on her own behalf
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Gotterson JA and the order proposed by his Honour.
GOTTERSON JA: On 3 February 2014 at the District Court of Maryborough, the applicant, AAW, was convicted on a plea of guilty to a count alleging an offence against s 320A of the Criminal Code (Qld), namely, that between 30 November 2011 and 4 May 2012 at Coonambula, she tortured WWP. At a hearing on 16 October 2014, the applicant was sentenced to seven years’ imprisonment and a serious violent offence declaration was made. A period of 118 days in custody was declared to be time served under the sentence.
On 17 November 2014, the applicant filed an application for leave to appeal against sentence.[1] The sole ground upon which the applicant wishes to appeal is that the sentence is manifestly excessive.
[1]AB159-161.
The circumstances of the offending
The…

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 AAW

Details

AGLC: R v AAW [2015] QCA 164
Case: [2015] QCA 164
Decision Date: 4 September 2015

CaseChat Overview and Summary

In the matter of R v AAW, the applicant sought leave to appeal against her sentence. The applicant had pleaded guilty to a count alleging an offence against section 320A of the Criminal Code (Qld), and was sentenced to seven years' imprisonment with a serious violent offence declaration. The applicant, who was the complainant's aunt, and her daughter had subjected the complainant to numerous indecencies over a period of five months. The applicant had a history of violent offending, including a conviction for ill-treating a German shepherd dog. The sentencing judge had outlined the applicant's offending as "a depraved and protracted course of conduct" and had considered personal deterrence as an important part of the sentence.

The legal issue before the court was whether the sentence imposed was manifestly excessive. The applicant argued that the sentence was excessive and that she had pleaded guilty under protest. However, the court found that the applicant had not identified any aspects of the sentencing remarks which demonstrated legal error on the part of the learned sentencing judge. No facts were said to have been misstated or misunderstood, and no relevant circumstance was said to have been overlooked or any irrelevant circumstance taken into account. The court found that the sentence was appropriate in the circumstances of the case, given the severity of the offending and the applicant's history of violent offending.

The court also noted that in a similar case, R v B; ex parte Attorney General, the court had upheld a sentence of seven years' imprisonment with a serious violent offence declaration for an offender who had committed torture over a period of six weeks. The court found that the sentence in the current case was not manifestly excessive, and the applicant's application for leave to appeal against sentence was refused.

The final order of the court was that the application for leave to appeal against sentence was refused. The applicant's sentence of seven years' imprisonment with a serious violent offence declaration, and the declaration that 118 days in custody was time served under the sentence, was upheld.

Orders

Orders of the court

Application 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

The tenor of these submissions, which the applicant re-asserted at the hearing of the application, was to protest an absence of guilt on her part to the offence to which she had pleaded guilty. She claimed to have “belted” the complainant twice only and then for justifiable reasons, and she conceded that she had shaved his head. In her written submissions, she painted herself and her daughter as the victims of predatory sexual behaviour on the part of the complainant.Consideration The applicant did not identify any aspects of the sentencing remarks which she contended demonstrated legal error on the part of the learned sentencing judge. No facts were said to have been misstated or misunderstood. No relevant circumstance was said to have been overlooked; nor any irrelevant circumstance taken into account. Her Honour did not say that she regarded the plea of guilty as indicative of remorse on the part of the applicant. It may fairly be observed that the appropriateness of her not having done so is eloquently demonstrated by the applicant’s protestations in her submissions on this application. Nor did the applicant refer this Court to sentences imposed in other cases in order to illustrate how her sentence is manifestly excessive. Had she attempted to do so, she would have encountered great difficulty, in my view. In R v B; ex parte Attorney General,[8] this Court dismissed an Attorney’s appeal against a sentence imposed on a male offender who was convicted on pleas of guilty of a range of offences against his 17 year old daughter and one offence against her aunt. One of the counts was for torture of the daughter for which the offender was sentenced to seven years’ imprisonment with a serious violent offence declaration. Shorter sentences on the other counts which, to a major extent were in respect of offending incidents that manifested the torture, were to be served concurrently.[8][2000] QCA 110. In that case, the torture alleged was over a period of some six weeks. It began with an altercation with the daughter over her boyfriend in which the offender slapped the daughter repeatedly on the face with an open hand. A second series of incidents occurred. It included punching the daughter in the stomach and face; hitting her with a shovel handle on both arms, in the back and in the stomach; grabbing her around the throat and choking her; dragging her across the floor by the hair; jumping on her; and terrifying her with a steel chain and an axe. Moynihan SJA and Atkinson J (with whom McPherson JA agreed in these respects) observed:“[30] The appropriate sentencing range in the circumstances of this case appears to us to be imprisonment of 7 to 10 years with a declaration that the respondent is a serious violent offender.[31]The circumstances warranting that range include on the one hand the repeated and escalating violence used, the serious injuries the complainant suffered, the breach of trust of the father-daughter relationship, the desire of the respondent to impose his will through terror and violence both to control his daughter’s behaviour and more significantly to cause her to drop the charges laid against him, and on the other hand, his early plea of guilty, previous good relationship with his daughter and his age and good employment history.[32]It is likely that a person who is convicted of the crime of torture particularly where it involves the intentional infliction of pain or suffering on more than one occasion will be declared a serious violent offender. …”

CITATION:	R v AAW [2015] QCA 164
PARTIES:	R v AAW (applicant)
FILE NO/S:	CA No 298 of 2014 DC No 144 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maryborough – Unreported, 16 October 2014
DELIVERED ON:	4 September 2015
DELIVERED AT:	Brisbane
HEARING DATE:	25 August 2015
JUDGES:	Fraser and Gotterson and Philippides JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application 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 the applicant was convicted on a plea of guilty to a count alleging an offence against s 320A of the Criminal Code (Qld) – where the applicant was sentenced to seven years’ imprisonment and a serious violent offence declaration was made – where a period of 118 days in custody was declared to be time served under the sentence – where the complainant was a teenage boy and the applicant was the complainant’s aunt – where the applicant and her daughter subjected the complainant to numerous indecencies over a period of five months as outlined in the Statement of Facts provided by the Crown – where the applicant had two prior convictions for offences of violence and a conviction for ill-treating a German shepherd dog – where the learned sentencing judge outlined the applicant’s offending which she described as “a depraved and protracted course of conduct” and considered that personal deterrence was an important part of the sentence – whether the sentence imposed was manifestly excessive Criminal Code (Qld), s 320A Penalties and Sentences Act 1992 (Qld), s 161B R v B; ex parte Attorney Generalof Qld (2000) 110 A Crim R 499; [2000] QCA 110, considered R v HAC[2006] QCA 460, considered
COUNSEL:	The applicant appeared on her own behalf D Balic for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent