R v BAO

Case [2004] QCA 445 22 November 2004

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SUPREME COURT OF QUEENSLAND

CITATION:

R v BAO [2004] QCA 445

PARTIES:

R
v
BAO
(applicant)

FILE NO/S:

CA No 314 of 2004
DC No 94 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Mackay

DELIVERED EX TEMPORE ON:

22 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2004

JUDGES:

McMurdo P, Williams JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for extension of time within which to apply for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant convicted of maintaining a sexual relationship with a child with a circumstance of aggravation, sodomy and indecent dealing with a circumstance of aggravation – where sentenced to nine years imprisonment – where complainant child was about nine years old when offences commenced – where offences continued over period of three years – whether any prospect of success on an application for leave to appeal against sentence – whether extension of time should be granted

R v AE [2001] QCA 136; CA No 19 of 2001, 6 April 2001, cited
R v C; ex parte A-G (Qld) [2003] QCA 134; CA No 400 of 2002, 24 March 2003, cited
R v R [2000] QCA 279; CA No 126 of 2000, 14 July 2000, cited

COUNSEL:

The applicant appeared on his own behalf
D L Meredith for the respondent

SOLICITORS:

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

WILLIAMS JA: The applicant pleaded guilty in the District Court on the 14th of May 2004 to one count of maintaining a sexual relationship with a child with a circumstance of aggravation, one count of sodomy and one count of indecent dealing with the circumstance of aggravation. He was sentenced on that date to nine years imprisonment.

The application for an extension of time within which to appeal against sentence is dated 9 September 2004 and was received in the Registry on the 16th of September 2004. The applicant provides as his reason for not filing the application within time certain difficulties that he experienced with the Legal Aid Office.

Within the time limited for appealing the Legal Aid Office informed the applicant that counsel who represented him at sentence did not recommend an appeal; but, nevertheless, the applicant sought to have a meeting with a Legal Aid officer in order to clarify that. In his mind, he wanted to give instructions to appeal.

For various reasons the conference did not take place until shortly after the expiration of the 28 day period. If that was all that was involved it may well be that the Court would grant an extension of…

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 BAO

Details

AGLC: R v BAO [2004] QCA 445
Case: [2004] QCA 445
Decision Date: 22 November 2004

CaseChat Overview and Summary

The appellant was convicted of maintaining a sexual relationship with a child, along with other related offences, and was sentenced to nine years imprisonment. The relationship commenced when the child was approximately nine years old and continued for three years. The appellant sought an extension of time to apply for leave to appeal against the sentence, as well as leave to appeal against the sentence itself. The legal issues before the court were whether there was any prospect of success on an application for leave to appeal against sentence and whether an extension of time should be granted.

The court considered the nature and severity of the crimes, the age of the victim, and the length of time over which the offences occurred. The court also considered the appellant's criminal history and the sentence imposed. The court found that there was no real prospect of success on an appeal against sentence, as the sentence was within the range of sentences that could be imposed for such offences. The court also found that there were no exceptional circumstances that warranted an extension of time. Therefore, the application for an extension of time and leave to appeal against sentence was dismissed.

The court's reasoning was based on the severity of the crimes, the age of the victim, and the length of time over which the offences occurred. The court also considered the appellant's criminal history and the sentence imposed. The court found that the sentence was within the range of sentences that could be imposed for such offences and that there were no exceptional circumstances that warranted an extension of time. Therefore, the application for an extension of time and leave to appeal against sentence was dismissed. The final order was that the application for extension of time within which to apply for leave to appeal against sentence was refused.

Orders

Orders of the court

Application for extension of time within which to apply for leave to appeal against sentence refused

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

R v BAO [2004] QCA 445

Most Recent Citation

R v BAY [2005] QCA 427

Cases citing this decision · 14 of 14 shown

R v BDQ
[2022] QCA 71 Para 2

…mposed with a serious violent offence declaration, after a trial. In R v HCF and R v Fenton , sentences of nine years were imposed after a trial. [20][2004] QCA 445. [21][2009] QCA 100. [22][2011] QCA 36. [23][2014] QCA 340. [24][2016] QCA 34. [25][2015] QCA 125. [26][2021] QCA 189.…
R v Dendle
[2019] QCA 194 Para 7

…v SBJ ,[25] R v Daphney ,[26] R v PAM ,[27] R v Stoian ,[28] R v GAR ,[29] R v Williams; Ex parte Attorney-General (Qld) ,[30] and R v SCQ .[31] [24][2004] QCA 445. [25][2009] QCA 100. [26][2010] QCA 236. [27][2011] QCA 36. [28][2012] QCA 41. [29][2014] QCA 30. [30][2014] QCA 346. [31][2017] QCA 49.…
R v Taj
[2018] QCA 305 Para 11

…ore comparable.[15] [10][2009] 2 Qd R 276; [2008] QCA 370. [11](2005) 157 A Crim R 309; [2005] QCA 427. [12][2000] QCA 279. [13][2011] QCA 278. [14][2004] QCA 445. [15]The respondent submits that the applicant’s sentence “sits comfortably within a reasonable spectrum of sentences”, as outlined by this Court in TS…
R v HBT
[2018] QCA 227 Para 30

…although she was not a lineal descendant. It is of little utility as the applicant in that matter pleaded guilty and had no previous convictions. [85][2004] QCA 445.…
R v SCQ
[2017] QCA 49 Para 21

…r was a mature man of about 48 years when the offences first commenced. He had no relevant previous convictions and the plea of guilty was early. [85][2004] QCA 445.…
R v BCW
[2014] QCA 340 Para 1

…e respondent contended that, taking both those cases as yardsticks, they in fact supported the sentence imposed, as did a third case, R v BBP .[4] [3][2004] QCA 445. [4][2009] QCA 114.…
R v Winchester
[2013] QCA 166 Para 1

…In another decision to which the sentencing judge referred, R v BAO [2004] QCA 445, the Court refused an application for an extension of time within which to apply for leave to appeal against a sentence of nine years imprisonment for one count of maintaining a sexual relationship with a child with a circumstance…
R v BCA
[2011] QCA 278 Para 1

…The applicant referred to R v PAK ,[17] R v BAO ,[18] R v SAR ,[19] R v Walden [20] and R v W .[21] [17][2010] QCA 187. [18][2004] QCA 445. [19][2005] QCA 426. [20][2010] QCA 13. [21][1998] QCA 343.…
R v PAM
[2011] QCA 36 Para 1

…n to eight years imprisonment was appropriate, was rightly made. [6][2009] QCA 114. [7][2009] QCA 253. [8](2008) 184 A Crim R 153; [2008] QCA 106. [9][2004] QCA 445.…
R v Hav
[2009] QCA 259 Para 1

…n at least three occasions. An application for an extension of time for leave to appeal against the applicant's nine year sentence was dismissed. [13][2004] QCA 445.…
R v MBG and mbH
[2009] QCA 252 Para 1

…ld) [2008] QCA 221; R v BBM [2008] QCA 162; R v HAP [2008] QCA 137; R v DAF [2004] QCA 368; R v BAX [2005] QCA 365; R v BAY [2005] QCA 427; R v BAO [2004] QCA 445; and R v R [2000] QCA 279. All involved offenders who had pleaded guilty. Those cases were worse, the applicants said, because they involved vaginal pe…
R v EH
[2008] QCA 67 Para 1

…derably worse than those here, and it was significant that the court had described the nine year sentence as towards the upper end of the range. [2][2004] QCA 445.…
R v Ball
[2006] QCA 186

…were cited: R v B [1995] QCA 636; CA No 328 of 1995, 23 October 1995 R v B [1997] QCA 213; CA No 58 of 1997, 18 June 1997 R v BAO [2004] QCA 445; CA No 314 of 2004, 22 November 2004 R v SAG [2004] QCA 286; CA No 55 of 2004, 6 August 2004 COUNSEL: The applicant appeared on his own behalf S G Bain for the responden…
R v BAY
[2005] QCA 427 Para 1

…ildhood. [4][1999] QCA 423. [5][2000] QCA 279. [6][2002] QCA 474; (2002) 135 A Crim R 253 [7][2003] QCA 68. [8][2003] QCA 134. [9][2003] QCA 392. [10][2004] QCA 445.…

View all 14 citing cases →

Cases cited in this decision · 3 of 3 shown

R v C; ex parte
[2003] QCA 134

…extension of time should be granted R v AE [2001] QCA 136; CA No 19 of 2001, 6 April 2001, cited R v C; ex parte A-G (Qld) [2003] QCA 134; CA No 400 of 2002, 24 March 2003, cited R v R [2000] QCA 279; CA No 126 of 2000, 14 July 2000, cited COUNSEL: The applicant appeared on his own behalf D L Meredith for the re…
R v AE
[2001] QCA 136

…pect of success on an application for leave to appeal against sentence – whether extension of time should be granted R v AE [2001] QCA 136; CA No 19 of 2001, 6 April 2001, cited R v C; ex parte A-G (Qld) [2003] QCA 134; CA No 400 of 2002, 24 March 2003, cited R v R [2000] QCA 279; CA No 126 of 2000, 14 July 2000,…
R v R
[2000] QCA 279

…No 19 of 2001, 6 April 2001, cited R v C; ex parte A-G (Qld) [2003] QCA 134; CA No 400 of 2002, 24 March 2003, cited R v R [2000] QCA 279; CA No 126 of 2000, 14 July 2000, cited COUNSEL: The applicant appeared on his own behalf D L Meredith for the respondent SOLICITORS: The applicant appeared on his own behalf…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v BAO [2004] QCA 445
PARTIES:	R v BAO (applicant)
FILE NO/S:	CA No 314 of 2004 DC No 94 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Mackay
DELIVERED EX TEMPORE ON:	22 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	22 November 2004
JUDGES:	McMurdo P, Williams JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time within which to apply for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant convicted of maintaining a sexual relationship with a child with a circumstance of aggravation, sodomy and indecent dealing with a circumstance of aggravation – where sentenced to nine years imprisonment – where complainant child was about nine years old when offences commenced – where offences continued over period of three years – whether any prospect of success on an application for leave to appeal against sentence – whether extension of time should be granted R v AE [2001] QCA 136; CA No 19 of 2001, 6 April 2001, cited R v C; ex parte A-G (Qld) [2003] QCA 134; CA No 400 of 2002, 24 March 2003, cited R v R [2000] QCA 279; CA No 126 of 2000, 14 July 2000, cited
COUNSEL:	The applicant appeared on his own behalf D L Meredith for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent