R v FAI - [2016] QCA 150

SUPREME COURT OF QUEENSLAND

CITATION:

R v FAI [2016] QCA 150

PARTIES:

R
v
FAI
(applicant)

FILE NO/S:

CA No 203 of 2015
DC No 59 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Mackay – Date of Sentence: 7 August 2015

DELIVERED ON:

10 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

30 May 2016

JUDGE:

Morrison and Philippides JJA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own plea of guilty to one count of burglary and three counts of rape – where the applicant was sentenced to eight years imprisonment with a serious violent offence declaration – where the court held the offending was very serious involving violence and premeditation – whether the sentencing judge erred in making a serious violent offence declaration – whether the sentence imposed was manifestly excessive

Corrective Services Act 2006 (Qld), s 182, s 184
Penalties and Sentences Act 1992 (Qld), s 161A, s 161B
Penalties and Sentences Act (Serious Violent Offences) Amendment Act 1997 (Qld)

R v Benjamin (2012) 224 A Crim R 40; [2012] QCA 188, cited
R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, cited
R v Mallie[2000] QCA 188, cited
R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, explained
R v Q[1994] QCA 390, cited
R v Richards[2008] QCA 211, explained
R v Rix[2014] QCA 278, cited

COUNSEL:

G Lynham for the applicant
N Crane for the respondent

SOLICITORS:

Purcell Taylor Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I have had the advantage of reading the reasons of Henry J. I agree with those reasons and the order his Honour proposes.
PHILIPPIDES JA: I agree with the order proposed by Henry J for the reasons given by his Honour.
HENRY J: A masked and gloved man broke into the home of a 63 year old woman, bound her wrists behind her back and committed penile and digital rape upon her. He now complains his sentence of eight years’ imprisonment with a serious violent offence declaration is manifestly excessive.
Facts
The offences
The complainant lived on a farm. On the Friday morning of the offence her husband left home to begin his farm work shortly before 7 o’clock, as was his habit. At 7.50 am the complainant was sitting in the lounge, still in her nightdress, when she heard the unlocked back screen door open and someone walk in. She assumed it was her husband but soon saw it was an apparently younger man wearing a black hoodie, black gloves and a cotton mask with eye holes…

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 FAI

Details

AGLC: R v FAI [2016] QCA 150
Case: [2016] QCA 150
Decision Date: 10 June 2016

CaseChat Overview and Summary

In this case, the applicant, convicted on his own plea of guilty to one count of burglary and three counts of rape, appealed against his sentence of eight years imprisonment, which was accompanied by a serious violent offence declaration. The applicant contended that the sentence was manifestly excessive, and that the sentencing judge erred in making the serious violent offence declaration. The appeal was heard in the Court of Appeal.

The legal issues at hand were whether the sentencing judge erred in making a serious violent offence declaration and whether the sentence imposed was manifestly excessive. The applicant argued that the range adopted by the sentencing judge was too high, but the court found that the authorities cited by the applicant did not support this contention. Instead, the court found that the sentencing judge had exercised his discretion soundly, particularly in light of the 1997 amendments to the Penalties and Sentences Act, which emphasised community protection and safety when sentencing offenders for violent offences.

In reaching its decision, the court considered the seriousness of the offending, which involved violence and premeditation. The court also noted the relevance of the 1994 case of R v Q, although it found that case to be of limited utility due to the subsequent legislative changes. The court concluded that the sentence imposed was not manifestly excessive, and that the application for leave to appeal sentence should be refused.

Accordingly, the court ordered that the application for leave to appeal sentence is refused. This decision brings to a close the applicant's appeal against his sentence, with the original sentence and serious violent offence declaration standing.

Orders

Orders of the court

The application for leave to appeal sentence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The above discussed cases[13] provide no support for the applicant’s argument that the learned sentencing judge adopted a range which was too high. To the contrary, they suggest a sound exercise of the sentencing discretion was undertaken in this case.[13]The applicant also referred to R v Q [1994] QCA 390 in oral submissions but it is of limited utility because it was determined in 1994, before the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 (Qld) amended s 9 Penalties and Sentences Act to require that primary regard be had to the community protection and safety when sentencing an offender for offences of violence (the same amending act also introduced the regime for serious violent offence declarations).Conclusion The sentence imposed was not manifestly excessive. The application for leave to appeal sentence should be refused.Order I would order:1.The application for leave to appeal sentence is refused.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v FAI [2016] QCA 150
PARTIES:	R v FAI (applicant)
FILE NO/S:	CA No 203 of 2015 DC No 59 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Mackay – Date of Sentence: 7 August 2015
DELIVERED ON:	10 June 2016
DELIVERED AT:	Brisbane
HEARING DATE:	30 May 2016
JUDGE:	Morrison and Philippides JJA and Henry J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own plea of guilty to one count of burglary and three counts of rape – where the applicant was sentenced to eight years imprisonment with a serious violent offence declaration – where the court held the offending was very serious involving violence and premeditation – whether the sentencing judge erred in making a serious violent offence declaration – whether the sentence imposed was manifestly excessive Corrective Services Act 2006 (Qld), s 182, s 184 Penalties and Sentences Act 1992 (Qld), s 161A, s 161B Penalties and Sentences Act (Serious Violent Offences) Amendment Act 1997 (Qld) R v Benjamin (2012) 224 A Crim R 40; [2012] QCA 188, cited R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, cited R v Mallie[2000] QCA 188, cited R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, explained R v Q[1994] QCA 390, cited R v Richards[2008] QCA 211, explained R v Rix[2014] QCA 278, cited
COUNSEL:	G Lynham for the applicant N Crane for the respondent
SOLICITORS:	Purcell Taylor Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent