R v Auer; ex parte

Case [2011] QCA 222


SUPREME COURT OF QUEENSLAND

CITATION:

R v Auer; ex parte A-G (Qld) [2011] QCA 222

PARTIES:

R
v
AUER, Andrew Robert
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 90 of 2011
DC No 36 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

6 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

11 August 2011

JUDGES:

Muir and Fraser JJA and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal against sentence allowed.1.      

Sentence varied by increasing from four years to nine years the term of imprisonment imposed on count 1.2.      

Sentence varied by setting aside the sentence imposed on count 9 and substituting a sentence of three years imprisonment to be served concurrently with the sentences on the other counts. 3.      

Sentence varied by omitting the order fixing 30 August 2012 as the parole eligibility date.4.      

Declare that the 348 days spent in presentence custody between 30 April 2010 and 12 April 2011 be taken to be time already served under the sentences.5.      

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to 16 sexual offences – where the respondent was convicted of one count of maintaining a sexual relationship with a child, five counts of indecent treatment of a child under 16 years and under 12 years and under his care, five counts of rape and five counts of indecent treatment of a child under 16 years and under 12 years – where the victims of the offences were six female children – where the respondent was sentenced to seven years imprisonment made up of four years for the maintaining offence and a cumulative term of three years for one of the rapes, the sentences for the other offences being concurrent – where the respondent’s conduct involved grave breaches of trust – where the respondent had a lengthy criminal history of sexual and other offending – where the evidence against the respondent in 12 of the 16 counts of which he was convicted depended solely or substantially on his admissions – whether the sentences were manifestly inadequate

Child Protection (Offender Reporting) Act 2004 (Qld)
Corrective Services Act 2006 (Qld), s 182, s 184
Criminal Code 1899 (Qld), s 210, s 229B, s 349, s 669A
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)
Penalties and Sentences Act 1992 (Qld), s 9, s 161B

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered
Lacey v Attorney-General of Queensland (2011) 85 ALJR 508; [2011] HCA 10, cited
R v AS; ex parte A-G (Qld) [2004] QCA 259, cited
R v Byrnes; ex parte A-G (Qld) [2011] QCA 40, considered
R v Dillon[2003] QCA 305, considered
R v Lacey; ex parte…

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Details
AGLC
R v Auer; ex parte A-G (Qld) [2011] QCA 222
Case
[2011] QCA 222
Decision Date

CaseChat Overview and Summary

The respondent in this case pleaded guilty to 16 sexual offences, including maintaining a sexual relationship with a child, five counts of indecent treatment of a child under 16 years and under 12 years, five counts of rape, and five counts of indecent treatment of a child under 16 years and under 12 years. The victims of the offences were six female children. The respondent was sentenced to seven years imprisonment, made up of four years for the maintaining offence and a cumulative term of three years for one of the rapes, with the sentences for the other offences being concurrent. The respondent had a lengthy criminal history of sexual and other offending. The court was required to determine whether the sentences imposed were manifestly inadequate.

The legal issue before the court was whether the sentences imposed on the respondent were manifestly inadequate, taking into account the gravity of the offences, the degree of culpability, and the respondent's criminal history. The court found that the sentences were manifestly inadequate and that the appeal against sentence should be allowed. The court varied the sentence imposed on count 1 by increasing the term of imprisonment from four years to nine years, set aside the sentence imposed on count 9 and substituted a sentence of three years imprisonment to be served concurrently with the sentences on the other counts, omitted the order fixing 30 August 2012 as the parole eligibility date, and declared that the 348 days spent in presentence custody between 30 April 2010 and 12 April 2011 be taken to be time already served under the sentences.

Orders

Orders of the court

Appeal against sentence allowed.1.

Sentence varied by increasing from four years to nine years the term of imprisonment imposed on count 1.2.

Sentence varied by setting aside the sentence imposed on count 9 and substituting a sentence of three years imprisonment to be served concurrently with the sentences on the other counts. 3.

Sentence varied by omitting the order fixing 30 August 2012 as the parole eligibility date.4.

Declare that the 348 days spent in presentence custody between 30 April 2010 and 12 April 2011 be taken to be time already served under the sentences.5.

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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