R v BAX - [2005] QCA 365

SUPREME COURT OF QUEENSLAND

CITATION:

R v BAX [2005] QCA 365

PARTIES:

R
v
BAX
(applicant)

FILE NO/S:

CA No 162 of 2005
DC No 325 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court

DELIVERED ON:

30 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

23 August 2005

JUDGES:

McPherson and Jerrard JJA and Fryberg J
Separate reasons for judgment of each member of the Court, McPherson JA and Fryberg J concurring as to the order made, Jerrard JA dissenting

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – applicant convicted by his own guilty pleas of three counts of maintaining a sexual relationship with circumstances of aggravation with three of his four stepchildren – applicant sentenced to nine years imprisonment with serious violent offence declarations made on all three convictions – applicant admitted to committing between 170 and 300 acts of abuse in total – all three children were under 12 during period of abuse – applicant had no prior convictions and had shown remorse – whether the serious violent offence declarations made the sentence manifestly excessive – whether a serious violent offence declaration can be made on a conviction where no actual physical violence

Criminal Code 1899 (Qld), s 229B
Penalties and Sentences Act 1992 (Qld), s 161A, s 161B(3)

R v Eveleigh [2002] QCA 219; [2003] 1 Qd R 398, cited
R v SAG [2004] QCA 286; (2004) 147 A Crim R 301, considered
R v SAK [2004] QCA 379; CA Nos 29 and 34 of 2004, 15 October 2004, considered

COUNSEL:

C W Heaton for the applicant
B G Campbell for the respondent

SOLICITORS:

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

McPHERSON JA: This application for leave to appeal against sentence falls to be considered in the context of the admitted facts that the applicant committed serious acts of sexual abuse against three of his four stepchildren ranging in ages, when the offending began, from four to seven years. He induced the male stepchild to attempt to have intercourse with his sister while the applicant gratified his sexual behaviour by watching them do so and masturbating. The applicant himself had sexual intercourse with the older girl.

He confessed to having abused her on no fewer than 100 to 150 occasions; to doing so to the younger girl, then aged four, some 50 to 100 times; and the boy on some 20 to 50 occasions. He committed these acts when their mother his wife was out of the way including occasions when she was in hospital giving birth to one or both of their own two children. The emotional and social consequences for his wife and…

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 BAX

Details

AGLC: R v BAX [2005] QCA 365
Case: [2005] QCA 365
Decision Date: 30 September 2005

CaseChat Overview and Summary

The case of R v BAX involved an individual who was convicted by his own guilty pleas of three counts of maintaining a sexual relationship with circumstances of aggravation with three of his four stepchildren. The applicant was sentenced to nine years imprisonment, with serious violent offence declarations made on all three convictions. The applicant admitted to committing between 170 and 300 acts of abuse in total. All three children were under 12 during the period of abuse. The applicant had no prior convictions and had shown remorse. The applicant sought to appeal against his sentence, arguing that the serious violent offence declarations made the sentence manifestly excessive. Additionally, the applicant argued that a serious violent offence declaration cannot be made on a conviction where no actual physical violence occurred.

The legal issues before the court were whether the serious violent offence declarations made the sentence manifestly excessive and whether a serious violent offence declaration can be made on a conviction where no actual physical violence occurred. The court considered the nature and severity of the offences, the applicant's criminal history, and the sentencing principles applicable to the case. The court also considered the impact of the serious violent offence declarations on the overall sentence. Ultimately, the court found that the serious violent offence declarations did not make the sentence manifestly excessive and that such declarations can be made on a conviction where no actual physical violence occurred. The court also found that the sentence was appropriate given the nature and severity of the offences and the need to protect the community.

The court dismissed the application for leave to appeal against sentence. The court found that the sentence was not manifestly excessive and that the serious violent offence declarations were appropriately made. The court also found that the applicant's criminal history and remorse were properly considered in the sentencing process. The court emphasised the importance of protecting the community and ensuring that sentences reflect the seriousness of the offences committed. The court found that the sentence imposed was appropriate and did not require any alteration.

No further orders were made by the court. The applicant's application for leave to appeal against sentence was dismissed.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

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 BAX [2005] QCA 365
PARTIES:	R v BAX (applicant)
FILE NO/S:	CA No 162 of 2005 DC No 325 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court
DELIVERED ON:	30 September 2005
DELIVERED AT:	Brisbane
HEARING DATE:	23 August 2005
JUDGES:	McPherson and Jerrard JJA and Fryberg J Separate reasons for judgment of each member of the Court, McPherson JA and Fryberg J concurring as to the order made, Jerrard JA dissenting
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – applicant convicted by his own guilty pleas of three counts of maintaining a sexual relationship with circumstances of aggravation with three of his four stepchildren – applicant sentenced to nine years imprisonment with serious violent offence declarations made on all three convictions – applicant admitted to committing between 170 and 300 acts of abuse in total – all three children were under 12 during period of abuse – applicant had no prior convictions and had shown remorse – whether the serious violent offence declarations made the sentence manifestly excessive – whether a serious violent offence declaration can be made on a conviction where no actual physical violence Criminal Code 1899 (Qld), s 229B Penalties and Sentences Act 1992 (Qld), s 161A, s 161B(3) R v Eveleigh [2002] QCA 219; [2003] 1 Qd R 398, cited R v SAG [2004] QCA 286; (2004) 147 A Crim R 301, considered R v SAK [2004] QCA 379; CA Nos 29 and 34 of 2004, 15 October 2004, considered
COUNSEL:	C W Heaton for the applicant B G Campbell for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent