R v Gai; ex parte - [2009] QCA 298

SUPREME COURT OF QUEENSLAND

CITATION:

R v GAI; ex parte A-G (Qld) [2009] QCA 298

PARTIES:

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

FILE NO/S:

CA No 156 of 2009
DC No 298 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

9 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

18 September 2009

JUDGES:

Keane, Holmes and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES – INCEST – GENERALLY – where respondent convicted on plea of guilty of two counts of incest with his daughter who was intellectually impaired – where respondent previously convicted of numerous sexual offences with children, including his granddaughter – where respondent sentenced to concurrent terms of nine years imprisonment – where Attorney-General appealed against sentence and urged proper sentence was 10 years imprisonment with an automatic serious violent offence declaration – where Attorney-General argued that risk posed to community by respondent warranted longer period in custody – where respondent not charged with offence relating to an intellectually impaired person – whether sentence imposed a proper sentence

Child Protection (Offender Reporting) Act 2004 (Qld)
Criminal Code 1899 (Qld), s 208, s 669A
Penalties and Sentences Act 1992 (Qld), s 9, s 161A

R v Aston (No 2) [1991] 1 Qd R 375, considered
R v B (2000) 111 A Crim R 302; [2000] QCA 42, considered
R v Boney, ex parte Attorney-General [1986] 1 Qd R 190, cited
The Queen vDe Simoni (1981) 147 CLR 383; [1981] HCA 31, applied
R v NJ [2008] QCA 331, cited
R v WN [2005] QCA 359, distinguished
Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7, cited
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14, cited

COUNSEL:

A W Moynihan SC, with L P Brisick, for the appellant
C W Heaton for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Legal Aid Queensland for the respondent

KEANE JA: On 1 December 2008 the respondent was convicted on his own plea of two counts of incest with his daughter. He was also convicted of two offences involving contravention of the Child Protection (Offender Reporting) Act 2004 (Qld) ("the CPORA").

On 25 May 2009 the respondent was sentenced to concurrent terms of nine years imprisonment in respect of the offences of incest. A period of 411 days

pre-sentence custody was declared to be time served under the sentences. The respondent was sentenced to concurrent terms of three months imprisonment in respect of the summary offences. The respondent's parole eligibility date was fixed at 9 April 2012.

The learned sentencing judge directed that a pre-sentence report dated 28 January 2009 and a psychiatric pre-sentence report by Dr R J Moyle be made available to…

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 Gai; ex parte

Details

AGLC: R v Gai; ex parte [2009] QCA 298
Case: [2009] QCA 298
Decision Date: 9 October 2009

CaseChat Overview and Summary

The appeal involved the respondent, Gai, who had been convicted on a plea of guilty of two counts of incest with his intellectually impaired daughter. This was not the first time Gai had been convicted of sexual offences involving children; he had a history of such crimes, including previous convictions for offences with his granddaughter. Gai was sentenced to concurrent terms of nine years imprisonment. The Attorney-General appealed the sentence, arguing that a longer period of imprisonment was warranted due to the risk Gai posed to the community. The appeal specifically focused on whether the sentence imposed was appropriate given the nature of the crimes and Gai's previous history.

The central legal issue before the court was whether the sentence of nine years imprisonment was proper, considering the severity of the offences and the risk Gai posed to the community. The Attorney-General contended that the sentence was insufficient and that a term of 10 years imprisonment, with a declaration of a serious violent offence, would be more appropriate. The court had to weigh the seriousness of the crimes, Gai's history of offending, and the potential risk to the community in determining whether the original sentence was adequate.

The court examined the severity of the crimes, noting that incest with an intellectually impaired person is a particularly heinous offence. It also considered Gai's extensive history of sexual offending involving children, which underscored the risk he posed to the community. Despite these factors, the court found that the original sentence of nine years imprisonment was appropriate. It took into account the principle of proportionality and the fact that Gai was not charged with a specific offence relating to an intellectually impaired person. The court concluded that the original sentence reflected a proper balance between punishment, deterrence, and the circumstances of the case. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

Appeal 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 GAI; ex parte A-G (Qld) [2009] QCA 298
PARTIES:	R v GAI (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 156 of 2009 DC No 298 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	9 October 2009
DELIVERED AT:	Brisbane
HEARING DATE:	18 September 2009
JUDGES:	Keane, Holmes and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES – INCEST – GENERALLY – where respondent convicted on plea of guilty of two counts of incest with his daughter who was intellectually impaired – where respondent previously convicted of numerous sexual offences with children, including his granddaughter – where respondent sentenced to concurrent terms of nine years imprisonment – where Attorney-General appealed against sentence and urged proper sentence was 10 years imprisonment with an automatic serious violent offence declaration – where Attorney-General argued that risk posed to community by respondent warranted longer period in custody – where respondent not charged with offence relating to an intellectually impaired person – whether sentence imposed a proper sentence Child Protection (Offender Reporting) Act 2004 (Qld) Criminal Code 1899 (Qld), s 208, s 669A Penalties and Sentences Act 1992 (Qld), s 9, s 161A R v Aston (No 2) [1991] 1 Qd R 375, considered R v B (2000) 111 A Crim R 302; [2000] QCA 42, considered R v Boney, ex parte Attorney-General [1986] 1 Qd R 190, cited The Queen vDe Simoni (1981) 147 CLR 383; [1981] HCA 31, applied R v NJ [2008] QCA 331, cited R v WN [2005] QCA 359, distinguished Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7, cited Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14, cited
COUNSEL:	A W Moynihan SC, with L P Brisick, for the appellant C W Heaton for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent