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R v Auer; ex parte

R v Auer; ex parte

Case [2011] QCA 222 6 September 2011

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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…

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 Auer; ex parte

Details

AGLC: R v Auer; ex parte A-G (Qld) [2011] QCA 222
Case: [2011] QCA 222
Decision Date: 6 September 2011

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

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

Most Recent Citation

R v You [2011] QCA 279

Cases citing this decision · 5 of 5 shown

R v Hci
[2022] QCA 2 Para 23

…Ex parte Attorney-General (Qld) ,[24] R v KAJ, Ex parte Attorney-General (Qld) ,[25] and R v BCW .[26] [16][2004] QCA 286. [17][2009] QCA 263. [18][2011] QCA 222. [19][2008] QCA 67. [20][2020] QCA 59. [21][2008] QCA 194. [22][2003] QCA 305. [23][2011] QCA 36. [24][1999] QCA 448. [25][2013] QCA 118. [26][2014] QC…
R v RBC
[2020] QCA 99 Para 16

…nduct involved touching the vaginal area, having one child touch his penis, and both digital and anal rape in the case of two of the six victims. [36][2011] QCA 222.…
R v Vizzard
[2015] QCA 47 Para 1

…h the authorities of R v Ruhland ;[4] R v ZA; ex parte A-G (Qld) [5] and R v Auer; ex parte A-G (Qld) .[6] [4][1999] QCA 430. [5][2009] QCA 249. [6][2011] QCA 222.…
R v UD
[2011] QCA 307 Para 1

…authorities and his conviction on 12 of the 16 counts depended solely or substantially on his admissions. [5][1999] QCA 448. [6][1999] QCA 396. [7][2011] QCA 222. [8][2011] QCA 222.…
R v You
[2011] QCA 279 Para 1

…97) 98 A Crim R 177; [1997] QCA 377. [5]SL No 151 of 1997. [6][2000] QCA 239. [7][2002] QCA 439. [8][2009] QCA 35. [9] R v Auer; ex parte A-G (Qld) [2011] QCA 222 at [39]. [10][2003] QCA 417. [11][2004] QCA 467. [12][2009] QCA 69. [13](2005) 154 A Crim R 30; [2005] QCA 90.…

View all 5 citing cases →

Cases cited in this decision · 11 of 11 shown

Lacey v Attorney-General (Qld)
[2011] HCA 10 Para 1

…ounsel for the appellant submitted that the sentencing judge erred in two respects – [2] Lacey v Attorney-General of Queensland (2011) 85 ALJR 508; [2011] HCA 10.…
R v Byrnes; ex parte A-G (Qld)
[2011] QCA 40 Para 1

…was under 12 years of age. The offending conduct consisted of touching under and outside the girls’ clothing, kissing and digital penetration. [13][2011] QCA 40.…
R v Lacey; ex parte Attorney-General
[2009] QCA 274 Para 1

…That view has since been held to have been erroneous.[10] [10] R v AS; ex parte A-G (Qld) [2004] QCA 259, [30]; R v Lacey; ex parte A-G (Qld) [2009] QCA 274, [149] - [153].…
R v McDougall and Collas
[2006] QCA 365

…Qld) [2009] QCA 274, cited R v Levack; ex parte A-G [1999] QCA 448, considered R v McDougall and Collas ; [2007] 2 Qd R 87; [2006] QCA 365, applied R v PW [2005] QCA 177, considered COUNSEL: A W Moynihan SC, with R M Britnell, for the appellant F Richards for the respondent SOLICITORS: Director of Public Prosecut…
R v BAW
[2005] QCA 334

…[21] R v DeSalvo (2002) 127 A Crim R 229, 230 - 231 [8] - [9], 232 [16]; R v BAW [2005] QCA 334, [27] - [28].…
R v PW
[2005] QCA 177

…Levack; ex parte A-G [1999] QCA 448, considered R v McDougall and Collas ; [2007] 2 Qd R 87; [2006] QCA 365, applied R v PW [2005] QCA 177, considered COUNSEL: A W Moynihan SC, with R M Britnell, for the appellant F Richards for the respondent SOLICITORS: Director of Public Prosecutions (Queensland) for the appel…
R v AS; ex parte
[2004] QCA 259 Para 1

…sentence at the lower end of the appropriate range. That view has since been held to have been erroneous.[10] [10] R v AS; ex parte A-G (Qld) [2004] QCA 259, [30]; R v Lacey; ex parte A-G (Qld) [2009] QCA 274, [149] - [153].…
R v Dillon
[2003] QCA 305 Para 1

…nvolved fondling, masturbation of the children, procuring them to masturbate the offender and requests for oral sex, which the children declined. [11][2003] QCA 305.…
R v Levack; ex parte
[1999] QCA 448 Para 1

…vation, 18 counts of indecent treatment and one count of assault occasioning bodily harm. The offences did not involve sodomy or attempted sodomy. [9][1999] QCA 448.…
AB v The Queen
[1999] HCA 46

…rs (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) [20…
Lacey v Attorney-General of Queensland
[2011] HCA 107 Para 1

…rate error on the part of the sentencing judge.[2] Senior counsel for the appellant submitted that the sentencing judge erred in two respects – [2] Lacey v Attorney-General of Queensland (2011) 85 ALJR 508; [2011] HCA 10.…

Legislation cited in this decision · 4

Penalties and Sentences Act 1992 (Qld)
161B, 9 3 mentions (from Para 1)
Corrective Services Act 2006 (Qld)
182, 184 2 mentions (from Para 1)
Child Protection (Offender Reporting) Act 2004 (Qld)
1 mention (from Para 1)
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)
1 mention (from Para 1)

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…