R v EH - [2008] QCA 67

SUPREME COURT OF QUEENSLAND

CITATION:

R v EH [2008] QCA 67

PARTIES:

R
v
EH
(applicant/appellant)

FILE NO/S:

CA No 175 of 2007
DC No 302 of 2007
DC No 303 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

28 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

22 February 2008

JUDGES:

McMurdo P, Holmes JA and Mackenzie AJA
Separate reasons for each member of the court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal against sentence allowed

2.   Set aside the sentences imposed at first instance.

3.   Substitute a sentence of six months imprisonment on count 7 on Indictment 4428/07

4.   Substitute sentences of two years imprisonment on counts 1-6 and 8 on Indictment 4428/07

5.   Substitute a sentence of six years and nine months imprisonment on the maintaining count on Indictment 4429/07

6.   Fix the parole eligibility date at 20 December 2008

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – DISPARITY- GENERALLY – where applicant pleaded guilty to one count of maintaining an unlawful sexual relationship with a child under 16 years, two counts of indecent treatment of a child under 12 years, and six counts of indecent treatment of a child under 16 years – where indecent treatment counts accompanied by aggravating circumstance that the child was in his care – where applicant sentenced to seven years and nine months imprisonment, with eligibility for parole after three years –– where relevant acts in maintaining charge included the applicant sucking, rubbing lubricant on and masturbating the complainant’s penis, and procuring the complainant to sodomise the applicant – where six indecent treatment counts involved relatively brief incidents of touching the genitals or genital areas of two complainants – where two indecent treatment counts involved the applicant supplying alcohol to, and showing pornography to, three of the complainants – where victim impact statements demonstrated deleterious effects upon two of the complainants – where applicant had no criminal history – where applicant did not use violence – where offending, with the exception of the procuring of sodomy, was at the lower end of the scale – whether sentence manifestly excessive

Criminal Code Act 1899 (Qld), s 229B

R v BAO [2004] QCA 445, considered
R v Dillon [2003] QCA 305, considered
R v H [2003] QCA 392, considered
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered
R v SAG (2004) 147 A Crim R 301; [2004] QCA 286, considered
R v Souter [2002] QCA 516, considered
R v TWB [2001] QCA 111, considered

COUNSEL:

B W Farr SC for the applicant/appellant
S G Bain for the respondent

SOLICITORS:

Kelly & Thomas Lawyers for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: I agree with Holmes JA.

HOLMES JA: The applicant was convicted, on a plea of guilty, of…

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 EH

Details

AGLC: R v EH [2008] QCA 67
Case: [2008] QCA 67
Decision Date: 28 March 2008

CaseChat Overview and Summary

The case before the court was an appeal against sentence by the applicant, who had pleaded guilty to several counts of sexual offences against children. The applicant was convicted of maintaining an unlawful sexual relationship with a child under 16 years, two counts of indecent treatment of a child under 12 years, and six counts of indecent treatment of a child under 16 years. The court had to decide whether the sentence imposed was manifestly excessive. The applicant was sentenced to seven years and nine months imprisonment, with eligibility for parole after three years.

The legal issues before the court were whether the sentence was manifestly excessive and whether there were grounds for interference in the sentence. The court considered the nature and circumstances of the offences, the age of the victims, and the absence of any previous criminal history by the applicant. The court also considered the impact of the offences on the victims, as demonstrated in their victim impact statements.

The court found that the sentence imposed was manifestly excessive and that there were grounds for interference. The court took into account the fact that the applicant had no criminal history and did not use violence in the commission of the offences. The court also noted that the offending, with the exception of the procuring of sodomy, was at the lower end of the scale. The court substituted the sentence imposed at first instance with a sentence of six months imprisonment on count 7 on Indictment 4428/07, two years imprisonment on counts 1-6 and 8 on Indictment 4428/07, six years and nine months imprisonment on the maintaining count on Indictment 4429/07, and fixed the parole eligibility date at 20 December 2008.

Orders

Orders of the court

1. Application for leave to appeal against sentence allowed

2. Set aside the sentences imposed at first instance.

3. Substitute a sentence of six months imprisonment on count 7 on Indictment 4428/07

4. Substitute sentences of two years imprisonment on counts 1-6 and 8 on Indictment 4428/07

5. Substitute a sentence of six years and nine months imprisonment on the maintaining count on Indictment 4429/07

6. Fix the parole eligibility date at 20 December 2008

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 EH [2008] QCA 67
PARTIES:	R v EH (applicant/appellant)
FILE NO/S:	CA No 175 of 2007 DC No 302 of 2007 DC No 303 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	28 March 2008
DELIVERED AT:	Brisbane
HEARING DATE:	22 February 2008
JUDGES:	McMurdo P, Holmes JA and Mackenzie AJA Separate reasons for each member of the court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence allowed 2. Set aside the sentences imposed at first instance. 3. Substitute a sentence of six months imprisonment on count 7 on Indictment 4428/07 4. Substitute sentences of two years imprisonment on counts 1-6 and 8 on Indictment 4428/07 5. Substitute a sentence of six years and nine months imprisonment on the maintaining count on Indictment 4429/07 6. Fix the parole eligibility date at 20 December 2008
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – DISPARITY- GENERALLY – where applicant pleaded guilty to one count of maintaining an unlawful sexual relationship with a child under 16 years, two counts of indecent treatment of a child under 12 years, and six counts of indecent treatment of a child under 16 years – where indecent treatment counts accompanied by aggravating circumstance that the child was in his care – where applicant sentenced to seven years and nine months imprisonment, with eligibility for parole after three years –– where relevant acts in maintaining charge included the applicant sucking, rubbing lubricant on and masturbating the complainant’s penis, and procuring the complainant to sodomise the applicant – where six indecent treatment counts involved relatively brief incidents of touching the genitals or genital areas of two complainants – where two indecent treatment counts involved the applicant supplying alcohol to, and showing pornography to, three of the complainants – where victim impact statements demonstrated deleterious effects upon two of the complainants – where applicant had no criminal history – where applicant did not use violence – where offending, with the exception of the procuring of sodomy, was at the lower end of the scale – whether sentence manifestly excessive Criminal Code Act 1899 (Qld), s 229B R v BAO [2004] QCA 445, considered R v Dillon [2003] QCA 305, considered R v H [2003] QCA 392, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered R v SAG (2004) 147 A Crim R 301; [2004] QCA 286, considered R v Souter [2002] QCA 516, considered R v TWB [2001] QCA 111, considered
COUNSEL:	B W Farr SC for the applicant/appellant S G Bain for the respondent
SOLICITORS:	Kelly & Thomas Lawyers for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent