R v BCA

Case [2011] QCA 278 11 October 2011

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SUPREME COURT OF QUEENSLAND

CITATION:

R v BCA [2011] QCA 278

PARTIES:

R
v
BCA
(applicant)

FILE NO/S:

CA No 325 of 2010
DC No 202 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

21 June 2011

JUDGES:

Fraser and White JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Application for leave to appeal against sentence granted.

2.    Appeal against sentence allowed.

3.    Set aside the sentences on counts 1 and counts 5 to 12 in the indictment and in substitution for those sentences impose the following sentences:

(a)     On count 1, sentence the applicant to 10 years imprisonment.

(b)     On each of counts 6, 8, 10 and 12, sentence the applicant to six years imprisonment.

(c)     On each of counts 5, 7, 9 and 11, sentence the applicant to three years imprisonment.

(d)     Each sentence is to be served concurrently with each other sentence.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCE – GENERALLY – where the applicant was convicted after a trial of one count of maintaining an unlawful sexual relationship with a child with aggravation, four counts of indecent treatment of a child with aggravation and four counts of sodomy with aggravation – where the applicant was sentenced to 10 years imprisonment on all counts to be served concurrently – where the sentencing judge did not make formal findings as to the duration of the sexual relationship that was maintained or the nature and frequency of the unlawful acts involved – whether the sentencing proceeding miscarried and, if so, what sentence ought to be imposed upon the applicant in exercising the sentencing discretion afresh

Evidence Act 1977 (Qld), s 132C

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, applied
KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54, cited
R v BAO[2004] QCA 445, considered
R v BBH [2007] QCA 348, considered
R v C; ex parte A-G (Qld)[2003] QCA 134, considered
R v D’Arcy (2001) 122 A Crim R 268; [2001] QCA 325, cited
R v H[2001] QCA 167, cited
R v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439, cited
R v Isaacs (1997) 41 NSWLR 374, distinguished
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited
R v O’Shea[2011] QCA 18, cited
R v P; ex parte A-G [2001] QCA 188, cited
R v PAK [2010] QCA 187, distinguished
R v SAR[2005] QCA 426, considered
R v Upson [2011] QCA 196, cited
R v W [1998] QCA 343, distinguished
R v Walden[2010] QCA 13, distinguished
R v Young; Ex parte Attorney-General (Qld) (2002) 135 A Crim R 253; [2002] QCA 474, considered

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 BCA

Details

AGLC: R v BCA [2011] QCA 278
Case: [2011] QCA 278
Decision Date: 11 October 2011

CaseChat Overview and Summary

In the Supreme Court of Queensland, the applicant, BCA, was convicted following a trial on one count of maintaining an unlawful sexual relationship with a child with aggravation, four counts of indecent treatment of a child with aggravation, and four counts of sodomy with aggravation. The applicant was sentenced to 10 years imprisonment on all counts, with the sentences to be served concurrently. The sentencing judge did not make formal findings as to the duration of the sexual relationship or the nature and frequency of the unlawful acts. The applicant sought leave to appeal against the sentence, arguing that the sentencing proceeding miscarried due to the lack of findings by the sentencing judge, and that a different sentence should be imposed upon the applicant in exercising the sentencing discretion afresh.

The legal issue before the court was whether the sentencing proceeding miscarried and, if so, what sentence should be imposed upon the applicant. The court considered whether the lack of findings by the sentencing judge was a miscarried proceeding and, if so, what sentence should be imposed upon the applicant in exercising the sentencing discretion afresh. The court held that the lack of findings by the sentencing judge was a miscarried proceeding. The court exercised its discretion to impose a sentence on the applicant in substitution for the sentences set aside.

The court set aside the sentences on counts 1 and counts 5 to 12 in the indictment and, in substitution for those sentences, imposed the following sentences: (a) on count 1, sentence the applicant to 10 years imprisonment; (b) on each of counts 6, 8, 10 and 12, sentence the applicant to six years imprisonment; (c) on each of counts 5, 7, 9 and 11, sentence the applicant to three years imprisonment; and (d) each sentence is to be served concurrently with each other sentence. The court held that the applicant’s offending was serious and warranted a substantial sentence of imprisonment. However, the court considered that the sentence imposed by the sentencing judge was excessive and that a lesser sentence was appropriate. The court exercised its discretion to impose a sentence on the applicant in substitution for the sentences set aside.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal against sentence allowed.

3. Set aside the sentences on counts 1 and counts 5 to 12 in the indictment and in substitution for those sentences impose the following sentences:

(a) On count 1, sentence the applicant to 10 years imprisonment.

(b) On each of counts 6, 8, 10 and 12, sentence the applicant to six years imprisonment.

(d) Each sentence is to be served concurrently with each other sentence.

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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Actions

Citations

R v BCA [2011] QCA 278

Most Recent Citation

R v SCQ [2017] QCA 49

Cases Citing This Decision

R v CDF [2024] QCA 207
Citation 1 (Para 8)

…nce which could be regarded as warranted in law for that offending. [8]Applicant’s Written Outline of Submissions at [50]-[56], citing: R v BCA [2011] QCA 278; R v LBC [2023] QCA 178; R v CCK [2019] QCA 237; R v WBL [2020] QCA 88; R v SBJ [2009] QCA 100. [9]Respondent’s Written Outline of submissions at [18]-[33]…
R v BDU [2022] QCA 174
Citation 2 (Para 8)

…nt’s lineal descendent and under his care and other associated offending. The applicant was ultimately sentenced to ten years imprisonment. [14][2011] QCA 278.…
R v Nac [2022] QCA 120
Citation 3 (Para 5)

…er cent of the sentence before eligibility for release on parole. [6] R v BAY [2005] QCA 427, R v BBM [2008] QCA 162, R v PAK [2010] QCA 187, R v BCA [2011] QCA 278 and R v RAZ; Ex parte Attorney-General (Qld) [2018] QCA 178.…
R v BDQ [2022] QCA 71
Citation 4 (Para 26)

…t yardstick in sentencing for offending of this kind. [16]See for example: R v DBV [2021] QCA 227 at [66]; R v Fenton [2015] QCA 125 at [44]; R v BCA [2011] QCA 278 at [49].…
R v Taj [2018] QCA 305
Citation 5 (Para 11)

…respectively, are more 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…
R v HBT [2018] QCA 227
Citation 6 (Para 2)

…g the period of offending. For the count of maintaining, the sentence of 10 years was upheld on the basis that anything less was not appropriate. [95][2011] QCA 278.…
R v Raz; Ex parte [2018] QCA 178
Citation 7 (Para 13)

…upheld on appeal. Her Honour considered that case to be a more serious one than the present case because it “included actual acts of sodomy”. [1][2011] QCA 278.…
R v SCQ [2017] QCA 49
Citation 8 (Para 27)

…gital penetration of her vagina and anus, sodomy and other acts, on multiple occasions. Plainly the offending was worse than in the current case. [90][2011] QCA 278.…

See all citing cases →

Cases Cited

R v Upson [2011] QCA 196
Citation 1 (Para 1)

…n the circumstances of this case I would admit the evidence. [11] R v Maniadis [1997] 1 Qd R 593 at 597; R v O’Shea [2011] QCA 18 at p 4; R v Upson [2011] QCA 196 at [52].…
R v BBZ [2011] QCA 62
Citation 2 (Para 1)

…which to apply for leave to appeal against sentence. The necessary extension was granted on 6 April 2011.[2] [1] R v BBH [2007] QCA 348. [2] R v BBZ [2011] QCA 62.…
R v O'Shea [2011] QCA 18
Citation 3 (Para 1)

…supports that submission, but in the circumstances of this case I would admit the evidence. [11] R v Maniadis [1997] 1 Qd R 593 at 597; R v O’Shea [2011] QCA 18 at p 4; R v Upson [2011] QCA 196 at [52].…
R v PAK [2010] QCA 187
Citation 4 (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 Walden [2010] QCA 13
Citation 5 (Para 1)

…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 BBH [2007] QCA 348
Citation 6 (Para 1)

…an extension of time within which to apply for leave to appeal against sentence. The necessary extension was granted on 6 April 2011.[2] [1] R v BBH [2007] QCA 348. [2] R v BBZ [2011] QCA 62.…
R v SAR [2005] QCA 426
Citation 7 (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 BAO [2004] QCA 445
Citation 8 (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 C; ex parte [2003] QCA 134
Citation 9 (Para 1)

…ve that because the circumstances of these offences exhibited infinite variation, one should not be rigidly tied to ranges.[16] [13][2003] QCA 134. [14](2002) 135 A Crim R 253; [2002] QCA 474. [15][2003] QCA 134 at p 4. [16][2003] QCA 134 at p 5.…
R v Young; ex parte [2002] QCA 474
Citation 10 (Para 1)

…fences exhibited infinite variation, one should not be rigidly tied to ranges.[16] [13][2003] QCA 134. [14](2002) 135 A Crim R 253; [2002] QCA 474. [15][2003] QCA 134 at p 4. [16][2003] QCA 134 at p 5.…
Cheung v The Queen [2001] HCA 67
Citation 11

…pon the applicant in exercising the sentencing discretion afresh Evidence Act 1977 (Qld), s 132C Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, applied KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54, cited R v BAO [2004] QCA 445, considered R v BBH [2007] QCA 348, considered R v C; ex parte A-G (Qld) [20…
R v D'Arcy [2001] QCA 325
Citation 12

…sidered R v BBH [2007] QCA 348, considered R v C; ex parte A-G (Qld) [2003] QCA 134, considered R v D’Arcy (2001) 122 A Crim R 268; [2001] QCA 325, cited R v H [2001] QCA 167, cited R v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439, cited R v Isaacs (1997) 41 NSWLR 374, distinguished R v Maniadis [1997] 1 Qd R 593…
R v P; ex parte A-G [2001] QCA 188
Citation 13 (Para 1)

…be eligible to apply for parole until he has served 80 per cent of the sentence.[10] [8] R v Ianculescu [2000] 2 Qd R 521; R v P; ex parte A-G [2001] QCA 188; R v H [2001] QCA 167. [9] Penalties and Sentences Act 1992 (Qld), s 161A(a)(ii). [10] Corrective Services Act 2006 (Qld), s 182.…
R v H [2001] QCA 167
Citation 14 (Para 1)

…for parole until he has served 80 per cent of the sentence.[10] [8] R v Ianculescu [2000] 2 Qd R 521; R v P; ex parte A-G [2001] QCA 188; R v H [2001] QCA 167. [9] Penalties and Sentences Act 1992 (Qld), s 161A(a)(ii). [10] Corrective Services Act 2006 (Qld), s 182.…
R v Ianculescu [1999] QCA 439
Citation 15

…considered R v D’Arcy (2001) 122 A Crim R 268; [2001] QCA 325, cited R v H [2001] QCA 167, cited R v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439, cited R v Isaacs (1997) 41 NSWLR 374, distinguished R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited R v O’Shea [2011] QCA 18, cited R v P; ex parte A-G [2001] Q…
R v W [1998] QCA 343
Citation 16 (Para 1)

…,[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.…
KBT v The Queen [1997] HCA 54
Citation 17

…fresh Evidence Act 1977 (Qld), s 132C Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, applied KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54, cited R v BAO [2004] QCA 445, considered R v BBH [2007] QCA 348, considered R v C; ex parte A-G (Qld) [2003] QCA 134, considered R v D’Arcy (2001) 122 A Crim R 268;…
R v Maniadis [1996] QCA 242
Citation 18

…v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439, cited R v Isaacs (1997) 41 NSWLR 374, distinguished R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited R v O’Shea [2011] QCA 18, cited R v P; ex parte A-G [2001] QCA 188, cited R v PAK [2010] QCA 187, distinguished R v SAR [2005] QCA 426, considered R v Upson [20…

Legislation Cited

Corrective Services Act 2006 (Qld) 182
2 mentions (from Para 1)
Evidence Act 1977 (Qld) 132C
2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld) 161A(a)(ii)
2 mentions (from Para 1)

CITATION:	R v BCA [2011] QCA 278
PARTIES:	R v BCA (applicant)
FILE NO/S:	CA No 325 of 2010 DC No 202 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	11 October 2011
DELIVERED AT:	Brisbane
HEARING DATE:	21 June 2011
JUDGES:	Fraser and White JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted. 2. Appeal against sentence allowed. 3. Set aside the sentences on counts 1 and counts 5 to 12 in the indictment and in substitution for those sentences impose the following sentences: (a) On count 1, sentence the applicant to 10 years imprisonment. (b) On each of counts 6, 8, 10 and 12, sentence the applicant to six years imprisonment. (c) On each of counts 5, 7, 9 and 11, sentence the applicant to three years imprisonment. (d) Each sentence is to be served concurrently with each other sentence.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCE – GENERALLY – where the applicant was convicted after a trial of one count of maintaining an unlawful sexual relationship with a child with aggravation, four counts of indecent treatment of a child with aggravation and four counts of sodomy with aggravation – where the applicant was sentenced to 10 years imprisonment on all counts to be served concurrently – where the sentencing judge did not make formal findings as to the duration of the sexual relationship that was maintained or the nature and frequency of the unlawful acts involved – whether the sentencing proceeding miscarried and, if so, what sentence ought to be imposed upon the applicant in exercising the sentencing discretion afresh Evidence Act 1977 (Qld), s 132C Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, applied KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54, cited R v BAO[2004] QCA 445, considered R v BBH [2007] QCA 348, considered R v C; ex parte A-G (Qld)[2003] QCA 134, considered R v D’Arcy (2001) 122 A Crim R 268; [2001] QCA 325, cited R v H[2001] QCA 167, cited R v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439, cited R v Isaacs (1997) 41 NSWLR 374, distinguished R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited R v O’Shea[2011] QCA 18, cited R v P; ex parte A-G [2001] QCA 188, cited R v PAK [2010] QCA 187, distinguished R v SAR[2005] QCA 426, considered R v Upson [2011] QCA 196, cited R v W [1998] QCA 343, distinguished R v Walden[2010] QCA 13, distinguished R v Young; Ex parte Attorney-General (Qld) (2002) 135 A Crim R 253; [2002] QCA 474, considered