R v Baq - [2005] QCA 31

SUPREME COURT OF QUEENSLAND

CITATION:

R v BAQ [2005] QCA 31

PARTIES:

R
v
BAQ
(applicant/appellant)

FILE NO/S:

CA No 328 of 2004
DC No 267 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

18 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2005

JUDGES:

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

ORDER:

1.   Application for leave to appeal against sentence granted

2.   Appeal allowed

3.   Set aside the sentence imposed below and in lieu thereof order that the applicant be imprisoned for three years, suspended after serving 12 months, with an operational period of three years

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – WHEN GRANTED – applicant convicted of attempted incest and sentenced to three and a half years imprisonment with recommendation for eligibility for post-prison community based release after serving 14 months – where complainant 17 years old and pregnant at time of offence – no penetration – isolated incident – early plea of guilty – whether the sentence was manifestly excessive

Criminal Code, Evidence Act and Other Acts Amendment Act (no.17) 1989 (Qld)
R v T [1999] QCA 330; CA No 203 of 1999, 18 August 1999, considered

COUNSEL:

A J Glynn SC for the applicant/appellant
R G Martin SC for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

P: McMURDOI agree with the orders proposed by Williams JA for the reasons he gives.

WILLIAMS JA: On 19 August 2004 the applicant pleaded guilty in the District Court to a charge of attempted incest committed between 1 January and 15 February 1993. He was sentenced to three and a half years imprisonment with a recommendation that he be eligible for post-prison community based release after serving 14 months of that sentence. He seeks leave to appeal against that sentence on the ground that it was in all the circumstances manifestly excessive.

The complainant, the lawful daughter of the applicant, was aged just over 17 years at the material time. The offence occurred shortly after the complainant had broken off a relationship with a young man. It is not clear whether she had been living with that person, but when the relationship broke up she was three months pregnant and at the material time she was living with her parents. On the occasion in question only the complainant and the applicant were in the home. The relevant facts are very briefly stated in the record.

The applicant pushed the complainant onto the double bed, exposed his penis, opened the complainant’s legs, pulled her underpants to one side and then lay on top of her. He made two or three thrusts seeking to attain penetration but failed to do so. He then…

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 Baq

Details

AGLC: R v BAQ [2005] QCA 31
Case: [2005] QCA 31
Decision Date: 18 February 2005

CaseChat Overview and Summary

In the case of R v Baq, the applicant, who was convicted of attempted incest and sentenced to three and a half years imprisonment, sought leave to appeal against the sentence. The court was required to determine whether the sentence was manifestly excessive given the circumstances of the case, which involved an isolated incident, an early plea of guilty, and the fact that the complainant was 17 years old and pregnant at the time of the offence, with no penetration occurring.

The court considered several factors in assessing the sentence's excessiveness, including the seriousness of the offence, the offender's culpability, and the principles of sentencing. The court noted that the applicant's early plea of guilty and the isolated nature of the incident were mitigating factors. However, the court also recognised the gravity of the offence, which involved an attempt to commit incest with a minor who was pregnant. The court concluded that, while the sentence was not appropriate in its entirety, the punishment for the offence was not manifestly excessive.

The court granted the application for leave to appeal and allowed the appeal. The sentence imposed by the lower court was set aside, and in its place, the court ordered that the applicant be imprisoned for three years, suspended after serving 12 months, with an operational period of three years. This decision demonstrates the court's willingness to review and adjust sentences when it finds that they are not proportionate to the offence and the circumstances surrounding it.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed

3. Set aside the sentence imposed below and in lieu thereof order that the applicant be imprisoned for three years, suspended after serving 12 months, with an operational period of three years

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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CITATION:	R v BAQ [2005] QCA 31
PARTIES:	R v BAQ (applicant/appellant)
FILE NO/S:	CA No 328 of 2004 DC No 267 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	18 February 2005
DELIVERED AT:	Brisbane
HEARING DATE:	8 February 2005
JUDGES:	McMurdo P, Williams JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence granted 2. Appeal allowed 3. Set aside the sentence imposed below and in lieu thereof order that the applicant be imprisoned for three years, suspended after serving 12 months, with an operational period of three years
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – WHEN GRANTED – applicant convicted of attempted incest and sentenced to three and a half years imprisonment with recommendation for eligibility for post-prison community based release after serving 14 months – where complainant 17 years old and pregnant at time of offence – no penetration – isolated incident – early plea of guilty – whether the sentence was manifestly excessive Criminal Code, Evidence Act and Other Acts Amendment Act (no.17) 1989 (Qld) R v T [1999] QCA 330; CA No 203 of 1999, 18 August 1999, considered
COUNSEL:	A J Glynn SC for the applicant/appellant R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent