R v CAA - [2006] QCA 168

SUPREME COURT OF QUEENSLAND

CITATION:

R v CAA [2006] QCA 168

PARTIES:

R
v
CAA
(applicant/appellant)

FILE NO/S:

CA No 11 of 2006
DC No 3622 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Judgment delivered 26 May 2006
Further Order delivered 6 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2006

JUDGES:

McMurdo P, White and Philippides JJ

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 against sentence allowed

3.    Instead of the sentence imposed at first instance,       order the applicant be sentenced to 25 months      imprisonment with a recommendation that she be       eligible for post-prison community-based release after       serving eight months imprisonment

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 GRANTED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - where applicant pleaded guilty to seven counts of permitting abuse of a child under 16 on premises and one count of indecent treatment of a child under 16 - where applicant sentenced to three years imprisonment with a recommendation for post-prison community-based release after 12 months - where applicant allowed her underage twin daughters to conduct a sexual relationship with a young man living in the family home - where applicant allowed her daughters to maintain a sexual relationship with the young man resulting in each daughter bearing two children to the man - where applicant had a dysfunctional and abusive upbringing and has mild mental retardation although no personality disorders, criminal history or history of violent or aggressive tendencies or excessive alcohol or illicit drug use - where offences showed a gross dereliction of applicant's parental duty although no exacerbating features - whether these factors were sufficiently taken into account in imposing the sentence - whether sentence was manifestly excessive in all the circumstances

Penalties and Sentences Act 1992 (Qld), s 157, s 188

R v MAN [2005] QCA 413; CA No 109 of 2005, 11 November 2005, cited

COUNSEL:

The applicant appeared on her own behalf

D L Meredith for the respondent

SOLICITORS:

The applicant appeared on her own behalf

Director of Public Prosecutions (Queensland) for respondent

McMURDO P: The applicant pleaded guilty to seven counts of permitting abuse of a child under 16 on premises and one count of indecent treatment of a child under 16. The offences occurred on various occasions between 1 December 1995 and 30 September 1996. She was sentenced on 20 December 2005 to three years imprisonment with a recommendation for post-prison community-based release after 12 months.

The sorry and sordid tale of these offences is as follows. The applicant was between 33 and 34 years old at the time of the offences and 43 years old at sentence. The two…

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 CAA

Details

AGLC: R v CAA [2006] QCA 168
Case: [2006] QCA 168
Decision Date: 26 May 2006

CaseChat Overview and Summary

The case before the Queensland Court of Appeal involved the applicant, who had pleaded guilty to multiple charges including permitting abuse of a child under 16 on premises and indecent treatment of a child under 16. The applicant had allowed her underage twin daughters to engage in a sexual relationship with a young man residing in their family home, resulting in the birth of two children to each daughter from the relationship. The applicant was sentenced to three years imprisonment with a recommendation for post-prison community-based release after 12 months. The applicant sought leave to appeal against her sentence on the grounds that it was manifestly excessive, and that mitigating factors, including her dysfunctional upbringing, mild mental retardation, and lack of a criminal history, had not been adequately considered by the sentencing judge.

The legal issues before the Court of Appeal centred on whether the original sentence imposed was manifestly excessive and whether the sentencing judge had adequately taken into account the applicant’s personal circumstances and the absence of aggravating factors. The applicant argued that the sentence should be reduced, while the Crown contended that the sentence was appropriate and reflected the gravity of the offences committed. The Court was required to determine if the mitigating factors presented were significant enough to warrant a reduction in the sentence and if the original sentence was manifestly excessive.

The Court of Appeal allowed the applicant's appeal against sentence, finding that the original sentence was manifestly excessive. The Court recognised that the applicant had allowed her young daughters to engage in a sexual relationship with a young man, resulting in pregnancies, which demonstrated a gross dereliction of her parental duty. However, the Court also noted that there were no aggravating features present in the case, such as a history of violence or criminal activity by the applicant. Furthermore, the Court took into account the applicant's dysfunctional upbringing, mild mental retardation, and lack of a criminal history or history of violent or aggressive tendencies, as well as excessive alcohol or illicit drug use. The Court found that these factors were not adequately considered by the sentencing judge in imposing the original sentence. Consequently, the Court reduced the applicant's sentence to 25 months imprisonment with a recommendation for post-prison community-based release after serving eight months imprisonment.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal against sentence allowed

3. Instead of the sentence imposed at first instance, order the applicant be sentenced to 25 months imprisonment with a recommendation that she be eligible for post-prison community-based release after serving eight months imprisonment

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.

CITATION:	R v CAA [2006] QCA 168
PARTIES:	R v CAA (applicant/appellant)
FILE NO/S:	CA No 11 of 2006 DC No 3622 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	Judgment delivered 26 May 2006 Further Order delivered 6 June 2006
DELIVERED AT:	Brisbane
HEARING DATE:	10 May 2006
JUDGES:	McMurdo P, White and Philippides JJ 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 against sentence allowed 3. Instead of the sentence imposed at first instance, order the applicant be sentenced to 25 months imprisonment with a recommendation that she be eligible for post-prison community-based release after serving eight months imprisonment
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 GRANTED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - where applicant pleaded guilty to seven counts of permitting abuse of a child under 16 on premises and one count of indecent treatment of a child under 16 - where applicant sentenced to three years imprisonment with a recommendation for post-prison community-based release after 12 months - where applicant allowed her underage twin daughters to conduct a sexual relationship with a young man living in the family home - where applicant allowed her daughters to maintain a sexual relationship with the young man resulting in each daughter bearing two children to the man - where applicant had a dysfunctional and abusive upbringing and has mild mental retardation although no personality disorders, criminal history or history of violent or aggressive tendencies or excessive alcohol or illicit drug use - where offences showed a gross dereliction of applicant's parental duty although no exacerbating features - whether these factors were sufficiently taken into account in imposing the sentence - whether sentence was manifestly excessive in all the circumstances Penalties and Sentences Act 1992 (Qld), s 157, s 188 R v MAN [2005] QCA 413; CA No 109 of 2005, 11 November 2005, cited
COUNSEL:	The applicant appeared on her own behalf D L Meredith for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for respondent