R v EK

Case [2013] QCA 278 27 September 2013

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SUPREME COURT OF QUEENSLAND

CITATION:

R v EK [2013] QCA 278

PARTIES:

R
v
EK
(applicant)

FILE NO/S:

CA No 225 of 2012
DC No 1043 of 2012
DC No 1044 of 2012
DC No 1045 of 2012
DC No 1263 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

27 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

20 September 2013

JUDGES:

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

ORDERS:

1.    Refuse leave to read and file:

a.   the affidavit of Andrew James Owens sworn on 6 September 2013;

b.   the affidavit of Dr Terence Frost sworn on 17 September 2013;

c.   the affidavit of Michael John Wilson sworn on 19 September 2013; and

d.   the affidavit of Michael John Wilson sworn on 23 September 2013.

2.    Grant leave to appeal.

3.    Allow the appeal.

4.    Set aside the sentences imposed in respect of counts 1 and 5 on indictment 1043 of 2012 at first instance and substitute sentences of nine years imprisonment to be served concurrently with each other and with the other sentences imposed on 20 August 2012.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to 10 years imprisonment in respect of each of two counts of maintaining a sexual relationship with his step‑daughter (complainant A) – where the applicant was also sentenced to terms of imprisonment for various sexual offences against his two step-daughters – where the applicant pleaded guilty to all offences at an early stage – where the applicant suffered from a variety of physical and psychological problems as a result of his military service – where the applicant employed emotional coercion and blackmail to sexually abuse both complainants over a lengthy period – where the complainants suffered substantial psychological harm – where the applicant contends that the sentences imposed for the maintaining offences in respect of complainant A were manifestly excessive and that sentences of eight to nine years imprisonment are appropriate – where the applicant relies on his early pleas of guilty, lack of criminal history and the fact that his ill health would render his imprisonment unusually onerous – whether the sentences were manifestly excessive

Criminal Code 1889 (Qld), s 668E(3)

R v BBM[2008] QCA 162, considered
R v CAM [2009] QCA 44, considered
R v Cornale [1993] 2 Qd R 294; (1993) 67 A Crim R 291; [1993] QCA 145, considered
R v D[2002] QCA 410, considered
R v GQ[2005] QCA 53, considered
R v H[2001] QCA 167, cited
R v HAA[2006] QCA 55, considered
R v Hughes [2004] 1 Qd R 541; [2003] QCA 460, cited
R v Irlam; ex parte A-G[2002] QCA 235, considered
R v K (1993) 69 A Crim R 236; [1993] QCA…

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 EK

Details

AGLC: R v EK [2013] QCA 278
Case: [2013] QCA 278
Decision Date: 27 September 2013

CaseChat Overview and Summary

The applicant, who had previously pleaded guilty to multiple sexual offences against his step-daughters, appealed against the sentence imposed on two counts of maintaining a sexual relationship with one of his step-daughters, referred to as complainant A. The applicant argued that the 10-year imprisonment terms for these counts were manifestly excessive, considering his early guilty pleas, lack of criminal history, and his health issues stemming from military service. The appeal was heard in the higher court.

The primary legal issue the court had to address was whether the sentences for maintaining the sexual relationship with complainant A were manifestly excessive. The court examined the applicant's arguments, which included the fact that the applicant had early guilty pleas, no criminal history, and the potential for his health issues to make imprisonment unusually onerous. The court also had to consider the substantial psychological harm suffered by the complainants and the applicant's use of emotional coercion and blackmail in the abuse.

The court found that while the sentences were severe, they were not manifestly excessive. However, it concluded that the sentences could be reduced to nine years imprisonment, to be served concurrently with each other and with the other sentences imposed. The court balanced the need for punishment and deterrence with the mitigating factors presented by the applicant. The court's decision was grounded in a detailed examination of the facts and circumstances of the case, as well as the broader principles of sentencing in similar cases.

The court granted leave to appeal, allowed the appeal in part, set aside the original sentences, and substituted them with sentences of nine years imprisonment for the specified counts. These new sentences were to be served concurrently with each other and with the other sentences imposed. The court also refused leave to read and file several affidavits submitted by the applicant and his supporters.

Orders

Orders of the court

1. Refuse leave to read and file:

a. the affidavit of Andrew James Owens sworn on 6 September 2013;

b. the affidavit of Dr Terence Frost sworn on 17 September 2013;

c. the affidavit of Michael John Wilson sworn on 19 September 2013; and

d. the affidavit of Michael John Wilson sworn on 23 September 2013.

2. Grant leave to appeal.

3. Allow the appeal.

4. Set aside the sentences imposed in respect of counts 1 and 5 on indictment 1043 of 2012 at first instance and substitute sentences of nine years imprisonment to be served concurrently with each other and with the other sentences imposed on 20 August 2012.

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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Citations

R v EK [2013] QCA 278

Most Recent Citation

R v WBG [2018] QCA 284

Cases Citing This Decision

Burton v The King [2024] NSWCCA 213
Citation 1 (Para 11)

…NSWCCA 125; R v Lavender [2002] NSWCCA 511; 37 MVR 491 at [8]; Kocer v R [2006] NSWCCA 328 at [1], [10], [15] and [18]; EK v R [2009] NSWCCA 4; 75 NSWLR 302 at [11]-[12] and [19]; and Gedeon v R [2009] NSWCCA 278 at [15]. [75] It is undoubted that in applications under s 5F substance, and not mere form, should…
R v DBV [2021] QCA 227
Citation 2 (Para 10)

…she was 19 (although he was not charged with conduct which occurred after she turned 16). He pleaded guilty to the offences at an early stage. [33][2013] QCA 278.…
R v RBC [2020] QCA 99
Citation 3 (Para 36)

…in the other, and a depressed immune system. He also suffered from Post-Traumatic Stress Disorder and had a history of cerebrovascular disease. [26][2013] QCA 278.…
R v CCK [2019] QCA 237
Citation 4 (Para 12)

…f maintaining a sexual relationship for a child under 16 years. The prosecution relied on the comparable authorities of R v HAA [2006] QCA 55, R v EK [2013] QCA 278 and R v WBG [2018] QCA 284. The prosecutor’s submission was that the applicant should be sentenced on count 14 to no less than 10 years’ imprisonment…
R v WBG [2018] QCA 284
Citation 5 (Para 9)

…R v EK [7] and R v BBM .[8] [4]RB, page 2. [5]Transcript of application, 1-3, lines 19 to 28. [6]Transcript of application, 1-4, line 26. [7][2013] QCA 278. [8][2008] QCA 162.…
AF v R [2015] NSWCCA 35
Citation 6 (Para 1)

…n interlocutory judgment or order given or made in the proceedings”. It relied in part upon the decision of this Court in EK v R [2009] NSWCCA 4; 75 NSWLR 302 which was concerned with a decision about the admissibility of a complainant’s evidence at a “re-trial” (in fact, it was a special hearing under the Ment…
Ingham v R [2014] NSWCCA 123
Citation 7 (Para 11)

…t amount to aggravation for the purposes of s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act adopting the reasoning in EK v R [2010] NSWCCA 199; 79 NSWLR 740, 208 A Crim R 157 at [79] per RA Hulme J (McClellan CJ at CL and Simpson J agreeing). I note that more recently in Montero v R [2013] NSWCCA 214, RA…
LS v Director of Public Prosecutions (NSW) [2011] NSWSC 1016
Citation 8 (Para 1)

…ry proceedings. It has been held that a ruling on evidence is not an "interlocutory order" : R v Steffan (1993) 30 NSWLR 633; R v EK [2009] NSWCCA 4; 75 NSWLR 302 at 304-306. It has also been observed that s.53(3)(b) does not confer jurisdiction on the Supreme Court to grant leave to appeal against an "interloc…
Dao v The Queen [2011] NSWCCA 63
Citation 9 (Para 1)

…2002] NSWCCA 125; R v Lavender [2002] NSWCCA 511; 37 MVR 491 at [8]; Kocer v R [2006] NSWCCA 328 at [1], [10], [15] and [18]; EK v R [2009] NSWCCA 4; 75 NSWLR 302 at [11]-[12] and [19]; and Gedeon v R [2009] NSWCCA 278 at [15].…
EK v The Queen [2009] NSWCCA 4
Citation 10

…Reported Decision: 75 NSWLR 302…

See all citing cases →

Cases Cited

R v Smith [2017] SASCFC 153
Citation 1

…42, considered R v Pope; ex parte Attorney-General (Qld) [1996] QCA 318, considered R v R [2000] QCA 279, cited R v Smith (1987) 44 SASR 587; (1987) 27 A Crim R 315, considered COUNSEL: A J Edwards for the applicant P J McCarthy for the respondent SOLICITORS: Bell Miller Solicitors for the applicant Director of Publi…
R v CAM [2009] QCA 44
Citation 2 (Para 1)

…nsel for the applicant placed particular reliance on R v K ,[1] R v CAM ,[2] R v KN ,[3] R v D [4] and R v KAI .[5] [1](1993) 69 A Crim R 236. [2][2009] QCA 44. [3][2005] QCA 74. [4][2002] QCA 410. [5][2002] QCA 378.…
R v BBM [2008] QCA 162
Citation 3 (Para 1)

…Counsel for the respondent placed particular reliance on R v BBM ,[16] R v HAA [17] and R v GQ .[18] [16][2008] QCA 162. [17][2006] QCA 55. [18][2005] QCA 53.…
R v LS [2006] QCA 354
Citation 4

…] QCA 74, considered R v Krieger unreported, Court of Criminal Appeal, Qld, CA No 13 of 1991, 28 March 1991, cited R v LS [2006] QCA 354, considered R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, considered R v Pope; ex parte Attorney-General (Qld) [1996] QCA 318, considered R v R [2000] QCA 279, cited R v Smith…
R v HAA [2006] QCA 55
Citation 5 (Para 1)

…Counsel for the respondent placed particular reliance on R v BBM ,[16] R v HAA [17] and R v GQ .[18] [16][2008] QCA 162. [17][2006] QCA 55. [18][2005] QCA 53.…
R v KN [2005] QCA 74
Citation 6 (Para 1)

…cant placed particular reliance on R v K ,[1] R v CAM ,[2] R v KN ,[3] R v D [4] and R v KAI .[5] [1](1993) 69 A Crim R 236. [2][2009] QCA 44. [3][2005] QCA 74. [4][2002] QCA 410. [5][2002] QCA 378.…
R v GQ [2005] QCA 53
Citation 7 (Para 1)

…Counsel for the respondent placed particular reliance on R v BBM ,[16] R v HAA [17] and R v GQ .[18] [16][2008] QCA 162. [17][2006] QCA 55. [18][2005] QCA 53.…
R v Hughes [2003] QCA 460
Citation 8

…GQ [2005] QCA 53, considered R v H [2001] QCA 167, cited R v HAA [2006] QCA 55, considered R v Hughes [2004] 1 Qd R 541; [2003] QCA 460, cited R v Irlam; ex parte A-G [2002] QCA 235, considered R v K (1993) 69 A Crim R 236; [1993] QCA 352, considered R v KAI [2002] QCA 378, considered R v KN [2005] QCA 74, consi…
R v D [2002] QCA 410
Citation 9 (Para 1)

…ular reliance on R v K ,[1] R v CAM ,[2] R v KN ,[3] R v D [4] and R v KAI .[5] [1](1993) 69 A Crim R 236. [2][2009] QCA 44. [3][2005] QCA 74. [4][2002] QCA 410. [5][2002] QCA 378.…
R v KAI [2002] QCA 378
Citation 10 (Para 1)

…v K ,[1] R v CAM ,[2] R v KN ,[3] R v D [4] and R v KAI .[5] [1](1993) 69 A Crim R 236. [2][2009] QCA 44. [3][2005] QCA 74. [4][2002] QCA 410. [5][2002] QCA 378.…
R v Irlam; ex parte A-G [2002] QCA 235
Citation 11 (Para 1)

…a “feature must not be allowed to overwhelm appropriate reflection of the grave nature of offences like these”.[15] [15] R v Irlam; ex parte A-G [2002] QCA 235 at [76].…
R v H [2001] QCA 167
Citation 12 (Para 1)

…, rape and oral sex. [9] R v D [2002] QCA 410 at 3. [10]Unreported, Court of Criminal Appeal, Qld, CA No 13 of 1991, 28 March 1991. [11][2001] QCA 167. [12][2000] QCA 279.…
R v R [2000] QCA 279
Citation 13 (Para 1)

…[9] R v D [2002] QCA 410 at 3. [10]Unreported, Court of Criminal Appeal, Qld, CA No 13 of 1991, 28 March 1991. [11][2001] QCA 167. [12][2000] QCA 279.…
R v Pope; Ex parte Attorney-General (Qld) [1996] QCA 318
Citation 14

…QCA 354, considered R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, considered R v Pope; ex parte Attorney-General (Qld) [1996] QCA 318, considered R v R [2000] QCA 279, cited R v Smith (1987) 44 SASR 587; (1987) 27 A Crim R 315, considered COUNSEL: A J Edwards for the applicant P J McCarthy for the respondent S…
R v Maniadis [1996] QCA 242
Citation 15

…nal Appeal, Qld, CA No 13 of 1991, 28 March 1991, cited R v LS [2006] QCA 354, considered R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, considered R v Pope; ex parte Attorney-General (Qld) [1996] QCA 318, considered R v R [2000] QCA 279, cited R v Smith (1987) 44 SASR 587; (1987) 27 A Crim R 315, considered COU…
Bailey v Director of Public Prosecutions [1988] HCA 19
Citation 16

…or when there is a serious risk of imprisonment having a gravely adverse effect on his health ( R v. Smith (1987) 44 SASR 587, 589; Bailey v. DPP (1988) 62 ALJR 319).”…
[1993] QCA 145 [1993] QCA 145
Citation 17

…v BBM [2008] QCA 162, considered R v CAM [2009] QCA 44, considered R v Cornale [1993] 2 Qd R 294; (1993) 67 A Crim R 291; [1993] QCA 145, considered R v D [2002] QCA 410, considered R v GQ [2005] QCA 53, considered R v H [2001] QCA 167, cited R v HAA [2006] QCA 55, considered R v Hughes [2004] 1 Qd R 541; [2003]…
[1993] QCA 352 [1993] QCA 352
Citation 18

…[2004] 1 Qd R 541; [2003] QCA 460, cited R v Irlam; ex parte A-G [2002] QCA 235, considered R v K (1993) 69 A Crim R 236; [1993] QCA 352, considered R v KAI [2002] QCA 378, considered R v KN [2005] QCA 74, considered R v Krieger unreported, Court of Criminal Appeal, Qld, CA No 13 of 1991, 28 March 1991, cited R v…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v EK [2013] QCA 278
PARTIES:	R v EK (applicant)
FILE NO/S:	CA No 225 of 2012 DC No 1043 of 2012 DC No 1044 of 2012 DC No 1045 of 2012 DC No 1263 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	27 September 2013
DELIVERED AT:	Brisbane
HEARING DATE:	20 September 2013
JUDGES:	Muir JA and Philippides and Henry JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Refuse leave to read and file: a. the affidavit of Andrew James Owens sworn on 6 September 2013; b. the affidavit of Dr Terence Frost sworn on 17 September 2013; c. the affidavit of Michael John Wilson sworn on 19 September 2013; and d. the affidavit of Michael John Wilson sworn on 23 September 2013. 2. Grant leave to appeal. 3. Allow the appeal. 4. Set aside the sentences imposed in respect of counts 1 and 5 on indictment 1043 of 2012 at first instance and substitute sentences of nine years imprisonment to be served concurrently with each other and with the other sentences imposed on 20 August 2012.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to 10 years imprisonment in respect of each of two counts of maintaining a sexual relationship with his step‑daughter (complainant A) – where the applicant was also sentenced to terms of imprisonment for various sexual offences against his two step-daughters – where the applicant pleaded guilty to all offences at an early stage – where the applicant suffered from a variety of physical and psychological problems as a result of his military service – where the applicant employed emotional coercion and blackmail to sexually abuse both complainants over a lengthy period – where the complainants suffered substantial psychological harm – where the applicant contends that the sentences imposed for the maintaining offences in respect of complainant A were manifestly excessive and that sentences of eight to nine years imprisonment are appropriate – where the applicant relies on his early pleas of guilty, lack of criminal history and the fact that his ill health would render his imprisonment unusually onerous – whether the sentences were manifestly excessive Criminal Code 1889 (Qld), s 668E(3) R v BBM[2008] QCA 162, considered R v CAM [2009] QCA 44, considered R v Cornale [1993] 2 Qd R 294; (1993) 67 A Crim R 291; [1993] QCA 145, considered R v D[2002] QCA 410, considered R v GQ[2005] QCA 53, considered R v H[2001] QCA 167, cited R v HAA[2006] QCA 55, considered R v Hughes [2004] 1 Qd R 541; [2003] QCA 460, cited R v Irlam; ex parte A-G[2002] QCA 235, considered R v K (1993) 69 A Crim R 236; [1993] QCA…