R v. GAE; ex parte A-G (Qld) - [2008] QCA 128

SUPREME COURT OF QUEENSLAND

CITATION:

R v GAE; ex parte A-G (Qld) [2008] QCA 128

PARTIES:

R
v
GAE
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 334 of 2007
DC No 2494 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

30 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

28 April 2008

JUDGES:

Holmes and Fraser JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where defendant sentenced to six and a half years on a plea of guilty for one count of rape, five counts of indecent treatment of a child under 16 with aggravating circumstances, and four counts relating to child exploitation material – where aggravating circumstances were that the two victims were under 12 years, and were the lineal descendants and under the care of the defendant – whether sentence was manifestly inadequate

R v Bielefeld [2002] QCA 369, considered
R v C unreported, Queensland Court of Appeal, CA No 262 of 1991, 3 March 1992, considered
R v D [2003] QCA 88, considered
R v H; ex parte Attorney-General [1993] QCA 240; CA No 144 of 1993, 23 June 1993, considered
R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24, considered
R v Wharley [2007] QCA 295, considered

COUNSEL:

M J Copley for the appellant
A P Gundelach for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Agnew D’Arcy Legal for the respondent

HOLMES JA: On 6 November 2007, the respondent was convicted on pleas of guilty of one count of rape of his granddaughter, L; four counts of indecent dealing with the child, with aggravating circumstances (that she was under 12 years, was his lineal descendant and was under his care); one count of indecent dealing with another granddaughter, J, with the same aggravating circumstances; and four counts relating to child exploitation material: one of making it, two of distributing it and one of possessing it. He was sentenced to imprisonment for six and a half years for the rape, three years imprisonment in respect of the indecent treatment counts, two years imprisonment in respect of the making and distribution of child exploitation material counts and one year’s imprisonment for the possession of child exploitation material. All sentences were concurrent, and a parole eligibility date was fixed at 6 January 2010 (after two years and two months). The Attorney-General appeals against the sentence on the ground that it is manifestly inadequate.

The offences

The respondent was aged between 64 and 67 at the time of the offences, which were charged as occurring…

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.

Keep reading for free

Create a free CaseChat account to read R v. GAE; ex parte A-G (Qld) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] QCA 128
Decision Date: 30 May 2008

CaseChat Overview and Summary

The case involved an application by the Attorney-General of Queensland for an increase in the sentence of the defendant, GAE, who had been convicted of multiple serious sexual offences involving minors. The defendant pleaded guilty to one count of rape, five counts of indecent treatment of a child under 16 with aggravating circumstances, and four counts relating to child exploitation material. The aggravating circumstances included that the victims were under 12 years of age and were the lineal descendants and under the care of the defendant. The primary judge had sentenced GAE to a total of six and a half years imprisonment. The Attorney-General sought to have the sentence increased, arguing it was manifestly inadequate.

The court was required to determine whether the sentence imposed by the primary judge was manifestly inadequate. This involved considering the severity of the crimes committed, the aggravating circumstances, and whether the sentence was sufficient to meet the purposes of punishment, deterrence, and denunciation. The court had to assess if there was an error in the primary judge's consideration of the relevant factors and whether the sentence was palpably insufficient.

The court found that the primary judge had correctly considered the severity of the crimes and the aggravating circumstances. The court held that the sentence of six and a half years was not manifestly inadequate and that the primary judge had exercised proper discretion in arriving at the sentence. The appeal was dismissed, affirming the sentence imposed by the primary judge. The court concluded that the sentence was proportionate to the gravity of the offences and adequately fulfilled the objectives of punishment.

Orders

Orders of the court

Appeal dismissed

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v GAE; ex parte A-G (Qld) [2008] QCA 128
PARTIES:	R v GAE (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 334 of 2007 DC No 2494 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	30 May 2008
DELIVERED AT:	Brisbane
HEARING DATE:	28 April 2008
JUDGES:	Holmes and Fraser JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where defendant sentenced to six and a half years on a plea of guilty for one count of rape, five counts of indecent treatment of a child under 16 with aggravating circumstances, and four counts relating to child exploitation material – where aggravating circumstances were that the two victims were under 12 years, and were the lineal descendants and under the care of the defendant – whether sentence was manifestly inadequate R v Bielefeld [2002] QCA 369, considered R v C unreported, Queensland Court of Appeal, CA No 262 of 1991, 3 March 1992, considered R v D [2003] QCA 88, considered R v H; ex parte Attorney-General [1993] QCA 240; CA No 144 of 1993, 23 June 1993, considered R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24, considered R v Wharley [2007] QCA 295, considered
COUNSEL:	M J Copley for the appellant A P Gundelach for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Agnew D’Arcy Legal for the respondent