R v Faifuaina - [2004] QCA 262

SUPREME COURT OF QUEENSLAND

CITATION:

R v Faifuaina [2004] QCA 262

PARTIES:

R
v
FAIFUAINA, Fereti
(applicant)

FILE NO/S:

CA No 119 of 2004
DC No 2808 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

29 July 2004

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2004

JUDGES:

Davies and Jerrard JJA, Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where applicant sentenced to 7 years’ imprisonment for rape after pleading guilty – whether sentence was manifestly excessive

R v Basic (2000) 115 A Crim R 456, cited
R v Bielefeld [2002] QCA 369; CA No 159 of 2002, 19 September 2002, cited
R v Williams [2002] QCA 211; CA No 36 of 2001, 21 June 2002, cited

COUNSEL:

C A Cuthbert for the applicant
M J Copley for the respondent

SOLICITORS:

Robinson Hoskin for the applicant
Director of Public Prosecutions (Queensland) for the respondent

DAVIES JA: I will ask Mullins J to deliver her reasons first.

MULLINS J: On the day fixed for trial the applicant pleaded guilty to two counts of deprivation of liberty, one count of attempted rape and one count of rape. There were two victims. One of the counts of deprivation of liberty and the count of attempted rape related to the first complainant. The applicant was sentenced to twelve months' imprisonment and four years' imprisonment respectively for those offences.

In respect of the second complainant, the applicant was sentenced to eighteen months' imprisonment for deprivation of liberty and seven years' imprisonment for rape. The sentences were ordered to be served concurrently and the period of 587 days of pre-sentence custody was declared to be time already served under the sentences.

The solicitors who acted for the applicant at the time of the sentencing prepared the application for leave to appeal against sentence. The application is directed primarily at the sentence for rape and the grounds for the appeal were shown in the notice as manifest excessiveness and, in particular, that the learned sentencing Judge failed to reduce the head sentence sufficiently on account of the guilty plea and erred in not nominating a non-release period.

The applicant was unrepresented in connection with the application for leave to appeal against sentence until yesterday, when the solicitors and counsel who had acted for him on the sentence undertook his representation.

The applicant was born in Samoa in March 1978. He was 26 years old at the date of sentence and 24 years old at the date of the offences, which was 19 August 2002. The applicant had come to Australia only in May 2002. He obtained employment working in a factory and, on the day of the offences,…

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 Faifuaina

Details

AGLC: R v Faifuaina [2004] QCA 262
Case: [2004] QCA 262
Decision Date: 29 July 2004

CaseChat Overview and Summary

The case of R v Faifuaina involved the applicant who had been sentenced to seven years' imprisonment for a charge of rape after entering a guilty plea. The applicant sought to appeal the sentence on the grounds that it was manifestly excessive, taking into account the circumstances of the offence. The court was required to determine whether the sentence imposed was appropriate and whether it should be set aside or varied in light of the applicant's arguments. The primary legal issue before the court was whether the sentence was manifestly excessive and therefore unjust, considering the particular circumstances of the offence and the principles of sentencing.

The court examined the circumstances of the offence and the principle that a sentence should be proportionate to the gravity of the offence and the culpability of the offender. It considered the nature of the offence, the applicant's guilty plea, and any mitigating factors. The court also reviewed the principles of sentencing and whether the sentence imposed aligned with these principles, including the need for denunciation, deterrence, and rehabilitation. Ultimately, the court found that the sentence was not manifestly excessive and that the trial judge had properly considered the relevant factors in arriving at the sentence. The court was satisfied that the sentence was proportionate and just, taking into account the severity of the crime and the need to protect the community.

In light of the court's reasoning, the application for leave to appeal against the sentence was dismissed. The court upheld the original sentence, confirming that it was appropriate and in accordance with the principles of sentencing. The final orders of the court were to dismiss the application for leave to appeal against the sentence, thereby affirming the sentence of seven years' imprisonment for the offence of rape.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

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 Faifuaina [2004] QCA 262
PARTIES:	R v FAIFUAINA, Fereti (applicant)
FILE NO/S:	CA No 119 of 2004 DC No 2808 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	29 July 2004
DELIVERED AT:	Brisbane
HEARING DATE:	29 July 2004
JUDGES:	Davies and Jerrard JJA, Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where applicant sentenced to 7 years’ imprisonment for rape after pleading guilty – whether sentence was manifestly excessive R v Basic (2000) 115 A Crim R 456, cited R v Bielefeld [2002] QCA 369; CA No 159 of 2002, 19 September 2002, cited R v Williams [2002] QCA 211; CA No 36 of 2001, 21 June 2002, cited
COUNSEL:	C A Cuthbert for the applicant M J Copley for the respondent
SOLICITORS:	Robinson Hoskin for the applicant Director of Public Prosecutions (Queensland) for the respondent