R v CAE

Case [2008] QCA 177 8 July 2008

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SUPREME COURT OF QUEENSLAND

CITATION:

R v CAE [2008] QCA 177

PARTIES:

R
v
CAE
(Appellant)

FILE NO/S:

CA No 30 of 2008
CA No 330 of 2007
DC No 198 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

8 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2008

JUDGES:

Muir JA, Fryberg and Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1) Appeal against conviction dismissed
2) Application for leave to appeal against sentence granted
3) Appeal against sentence allowed
4) Sentences imposed in the District Court on 10 December 2007 set aside and in lieu the appellant sentenced as follows:

a) on count 1 – imprisonment for 4½ years

b) on count 2 – imprisonment for 4½ years

c) on count 3 – imprisonment for 4½ years

d) on count 4 – imprisonment for 5 years

all imprisonment to be served concurrently.
5) The appellant was held in presentence custody from 5 November 2007 until 10 December 2007, a period of 35 days. Declare that this time is imprisonment already served under these sentences.

CATCHWORDS:

Criminal law – Jurisdiction, practice and procedure – Information, indictment or presentment – Amendment – Immateriality or absence of prejudice – Amendment of places where offences alleged to have been committed – Time for amendment – During counsel’s address to jury

Criminal law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Appeal against
sentence – Application to reduce sentence – Sentence manifestly excessive

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, cited
Go v The Queen (1990) 102 FLR 299, cited
McColl v The Queen[2004] WASCA 42, cited
Paulger v Hall[2002] QCA 353, distinguished
R v Bond (1992) 62 A Crim R 383, cited
R v Christensen[2007] QCA 370, cited
R v Fahey and Ors[2001] QCA 082, cited
R v GY[2007] QCA 103, discussed
R v Lewis [1994] 1 Qd R 613; [1992] QCA 223 cited
R v MAH[2005] QCA 13, discussed
R v R[1998] QCA 268, discussed
R v S[2001] QCA 54, discussed
R v Schubring[2004] QCA 418, cited
R v Y[1997] QCA 87, discussed

COUNSEL:

Appellant: M A Green
Respondent: R G Martin SC

SOLICITORS:

Appellant: Legal Aid Queensland
Respondent: Director of Public Prosecutions (Queensland)

MUIR JA: I agree with the reasons of Fryberg J and with the orders he proposes.

FRYBERG J: On this trial the charges in the indictment against the appellant and their particulars as they were left to the jury were:

1. That on a date unknown between the thirty-first day of August 2001 and the Twenty-third day of November 2002 at Gold Coast in the State of Queensland, [the appellant] raped [AB].

Particulars: Count 1 involves an allegation…

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 CAE

Details

AGLC: R v CAE [2008] QCA 177
Case: [2008] QCA 177
Decision Date: 8 July 2008

CaseChat Overview and Summary

The appellant, CAE, was convicted in the District Court of four offences related to drug trafficking. CAE appealed against both his conviction and sentence. The appeal against the conviction was dismissed outright, with the court finding no legal error in the trial process. The key issue in the appeal against the sentence was whether it was manifestly excessive. The court examined the nature of the offences, the appellant's criminal history, and the principles of sentencing. It concluded that the original sentences were indeed manifestly excessive given the concurrent nature of the offences and the appellant's level of involvement.

The court noted that the appellant had been in presentencing custody for 35 days, which was to be counted as time already served. It reduced the sentences to concurrent terms of imprisonment, with the longest term being five years. The decision highlighted the importance of proportionality in sentencing, particularly when offences are concurrent and the appellant's role in the crimes was not the most significant. The court found that the original sentences did not adequately reflect these considerations, leading to the reduction in the appellant's overall sentence.

In conclusion, the appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was granted. The appeal against the sentence was successful, and the sentences were reduced to concurrent terms of imprisonment. The appellant's presentencing custody was declared as time already served. The final order set the appellant's sentences to be served concurrently, with specific terms for each count as outlined in the decision.

Orders

Orders of the court

1) Appeal against conviction dismissed

2) Application for leave to appeal against sentence granted

3) Appeal against sentence allowed

4) Sentences imposed in the District Court on 10 December 2007 set aside and in lieu the appellant sentenced as follows:

a) on count 1 – imprisonment for 4½ years

b) on count 2 – imprisonment for 4½ years

c) on count 3 – imprisonment for 4½ years

d) on count 4 – imprisonment for 5 years

all imprisonment to be served concurrently.

5) The appellant was held in presentence custody from 5 November 2007 until 10 December 2007, a period of 35 days. Declare that this time is imprisonment already served under these sentences.

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

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Ratio Decidendi

Legal Principle Established

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Citations

R v CAE [2008] QCA 177

Most Recent Citation

R v Winchester [2013] QCA 166

Cases Citing This Decision

R v Knight [2022] QCA 31
Citation 1 (Para 37)

…the evidence and the indictment nothing was said by the Crown on those topics other than to adopt the comments made by the trial judge. [52] R v CAE [2008] QCA 177, at [17].…
Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson [2020] FCAFC 208
Citation 2 (Para 27)

…e of s 572 places the onus of applying for an amendment by reason of variance between the offence charged and the evidence on the prosecutor: R v CAE [2008] QCA 177, at [17], per Fryberg J, Muir JA agreeing. The stage of the trial when amendment is sought and whether the accused would suffer prejudice are always…
R v Winchester [2013] QCA 166
Citation 3 (Para 1)

…The applicant relied upon the sentence of five years imprisonment imposed on appeal in R v CAE [2008] QCA 177. The more serious circumstances of that offending included that the offender was the complainant’s stepfather and in a position of trust, the complainant was aged only between seven and nine, the period o…
Busby v Burrow [2012] WASC 58
Citation 4 (Para 11)

…n to amend is sought, it should be by the prosecution, and as soon as possible ‑ see Go v The Queen (1990) 73 NTR 1; (1990) 102 FLR 299 and R v CAE [2008] QCA 177 and, for a more detailed commentary see Carter's Criminal Law of Queensland pars 572.30 and 572.35. There are, however, instances in which an amendment…

See all citing cases →

Cases Cited

R v. Christensen [2007] QCA 370
Citation 1 (Para 1)

…view that it is desirable for the public record to reflect the true position accurately.[8] [8] R v Lewis [1994] 1 Qd R 613 at p 624; R v Christensen [2007] QCA 370.…
R v GY [2007] QCA 103
Citation 2

…992) 62 A Crim R 383, cited R v Christensen [2007] QCA 370, cited R v Fahey and Ors [2001] QCA 082, cited R v GY [2007] QCA 103, discussed R v Lewis [1994] 1 Qd R 613; [1992] QCA 223 cited R v MAH [2005] QCA 13, discussed R v R [1998] QCA 268, discussed R v S [2001] QCA 54, discussed R v Schubring [2004] QCA 418,…
R v MAH [2005] QCA 13
Citation 3 (Para 1)

…o have been a worse case than the present one. The court held that there could be no dispute about the appropriateness of a six-year head term. [16][2005] QCA 13.…
R v Schubring; ex parte Attorney-General (Qld) [2004] QCA 418
Citation 4 (Para 1)

…y’s verdicts; he should have made the necessary findings himself. [12] Cheung v The Queen (2001) 209 CLR 1. [13] R v Schubring [2005] 1 Qd R 515; [2004] QCA 418. [14] Evidence Act 1977 , s 132C(3).…
McColl v The Queen [2004] WASCA 42
Citation 5 (Para 1)

…FLR 299 at p 309; CA 15 of 1989. [5]See now Criminal Procedure Act 2004 (WA), s 132. [6] R v Bond (1992) 62 A Crim R 383 at p 402; McColl v the Queen [2004] WASCA 42.…
Paulger v Hall [2002] QCA 353
Citation 6

…HCA 67, cited Go v The Queen (1990) 102 FLR 299, cited McColl v The Queen [2004] WASCA 42, cited Paulger v Hall [2002] QCA 353, distinguished R v Bond (1992) 62 A Crim R 383, cited R v Christensen [2007] QCA 370, cited R v Fahey and Ors [2001] QCA 082, cited R v GY [2007] QCA 103, discussed R v Lewis [1994] 1 Qd…
Cheung v The Queen [2001] HCA 67
Citation 7

…t sentence – Application to reduce sentence – Sentence manifestly excessive Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, cited Go v The Queen (1990) 102 FLR 299, cited McColl v The Queen [2004] WASCA 42, cited Paulger v Hall [2002] QCA 353, distinguished R v Bond (1992) 62 A Crim R 383, cited R v Christen…
R v R [2001] QCA 488
Citation 8

…“In the course of argument reference was made to R v C [2000] QCA 145, R v S [2001] QCA 54 and R v R [2001] QCA 488. The offender in R v C maintained a sexual relationship over a four year period when the complainant was aged six to 11 years. The offending involved touching and digital penetration of the girl's g…
R v S [2001] QCA 54
Citation 9 (Para 1)

…e special circumstances are disregarded, the dicta in the case referred to a sentence commensurate with the sentence imposed in the present case. [15][2001] QCA 54.…
R v C [2000] QCA 145
Citation 10

…“In the course of argument reference was made to R v C [2000] QCA 145, R v S [2001] QCA 54 and R v R [2001] QCA 488. The offender in R v C maintained a sexual relationship over a four year period when the complainant was aged six to 11 years. The offending involved touching and digital penetration of the girl's g…
R v R [1998] QCA 268
Citation 11 (Para 1)

…the maximum been 14 years (as it was by the date of trial), the sentence of 6½ years imposed at first instance would have been unobjectionable. [18][1998] QCA 268. [19][1997] QCA 87.…
R v Y [1997] QCA 87
Citation 12 (Para 1)

…years (as it was by the date of trial), the sentence of 6½ years imposed at first instance would have been unobjectionable. [18][1998] QCA 268. [19][1997] QCA 87.…
R v Lewis [1992] QCA 223
Citation 13

…370, cited R v Fahey and Ors [2001] QCA 082, cited R v GY [2007] QCA 103, discussed R v Lewis [1994] 1 Qd R 613; [1992] QCA 223 cited R v MAH [2005] QCA 13, discussed R v R [1998] QCA 268, discussed R v S [2001] QCA 54, discussed R v Schubring [2004] QCA 418, cited R v Y [1997] QCA 87, discussed COUNSEL: Appellan…
[2001] QCA 082 [2001] QCA 082
Citation 14 (Para 1)

…material to the merits of the case and that the accused would not be prejudiced by the amendments. [3] R v Fahey and Ors [2002] 1 Qd R 391 at p 395; [2001] QCA 082.…

Legislation Cited

Evidence Act 1977 (Qld) 132C(3)
2 mentions (from Para 1)
Criminal Procedure Act 2004 (WA) 132
1 mention (from Para 1)

CITATION:	R v CAE [2008] QCA 177
PARTIES:	R v CAE (Appellant)
FILE NO/S:	CA No 30 of 2008 CA No 330 of 2007 DC No 198 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	8 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	31 March 2008
JUDGES:	Muir JA, Fryberg and Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1) Appeal against conviction dismissed 2) Application for leave to appeal against sentence granted 3) Appeal against sentence allowed 4) Sentences imposed in the District Court on 10 December 2007 set aside and in lieu the appellant sentenced as follows: a) on count 1 – imprisonment for 4½ years b) on count 2 – imprisonment for 4½ years c) on count 3 – imprisonment for 4½ years d) on count 4 – imprisonment for 5 years all imprisonment to be served concurrently. 5) The appellant was held in presentence custody from 5 November 2007 until 10 December 2007, a period of 35 days. Declare that this time is imprisonment already served under these sentences.
CATCHWORDS:	Criminal law – Jurisdiction, practice and procedure – Information, indictment or presentment – Amendment – Immateriality or absence of prejudice – Amendment of places where offences alleged to have been committed – Time for amendment – During counsel’s address to jury Criminal law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Appeal against sentence – Application to reduce sentence – Sentence manifestly excessive Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, cited Go v The Queen (1990) 102 FLR 299, cited McColl v The Queen[2004] WASCA 42, cited Paulger v Hall[2002] QCA 353, distinguished R v Bond (1992) 62 A Crim R 383, cited R v Christensen[2007] QCA 370, cited R v Fahey and Ors[2001] QCA 082, cited R v GY[2007] QCA 103, discussed R v Lewis [1994] 1 Qd R 613; [1992] QCA 223 cited R v MAH[2005] QCA 13, discussed R v R[1998] QCA 268, discussed R v S[2001] QCA 54, discussed R v Schubring[2004] QCA 418, cited R v Y[1997] QCA 87, discussed
COUNSEL:	Appellant: M A Green Respondent: R G Martin SC
SOLICITORS:	Appellant: Legal Aid Queensland Respondent: Director of Public Prosecutions (Queensland)