R v GAR

Case [2014] QCA 30 28 February 2014

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SUPREME COURT OF QUEENSLAND

CITATION:

R v GAR [2014] QCA 30

PARTIES:

R
v
GAR
(applicant)

FILE NO/S:

CA No 240 of 2013
DC No 441 of 2012
DC No 272 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

28 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2014

JUDGES:

Muir and Fraser and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.     Leave to appeal against sentence is granted.

2.     The appeal be allowed.

3.     The sentences imposed on 4 September 2013 in respect of counts 5, 6, 7 and 8 on the indictment be set aside and that for each such offence the applicant be sentenced to 10 years imprisonment.

4.     Each such offence be declared a serious violent offence.

5. The other sentences imposed on 4 September 2013 be affirmed and that all sentences be served concurrently except for the summary offence referred to as Charge 9 on the Court order sheet and described as “the Bail Act offence” in the sentencing remarks, the term of which remains cumulative.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of two counts of attempted indecent treatment of a child under 16, one count of unlawfully exposing a child under 16 to an indecent act, one count of assault occasioning bodily harm and four counts of rape – where the applicant pleaded not guilty – where the applicant was sentenced to 12 years imprisonment for each of the rape offences and to five years imprisonment for each of the other offences – where a serious violent offence declaration was made – where the applicant was also sentenced for 20 summary offences – where all of the sentences imposed, other than a one month term of imprisonment imposed for a Bail Act 1980 (Qld) offence, were ordered to be served concurrently – where the applicant was 19 years of age at the time of offending – where the applicant had an extensive criminal history – where the applicant’s victim was his 15 year old aunty – where the applicant penetrated his victim’s vagina digitally before having vaginal and anal intercourse with her – where the assaults where accompanied by actual and threatened violence – where the applicant demonstrated no remorse – where the applicant had a troubled childhood – where the applicant was a heavy user of drugs and alcohol – whether in all the circumstances the sentence was manifestly excessive

Bail Act 1980 (Qld)

Bugmy v The Queen (2013) 87 ALJR 1022; [2013] HCA 37, considered
R v Basic (2000) 115 A Crim R 456; [2000] QCA 155, followed
R v Benjamin (2012) 224 A Crim R 40; [2012] QCA 188, distinguished
R v Bolton[2005] QCA 335, considered
R v Dowden[2010] QCA 125, distinguished

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 GAR

Details

AGLC: R v GAR [2014] QCA 30
Case: [2014] QCA 30
Decision Date: 28 February 2014

CaseChat Overview and Summary

In the matter of R v GAR, the applicant appealed against his sentence imposed by the District Court of Queensland. The applicant was convicted of multiple serious sexual offences against his 15-year-old aunty, including four counts of rape. He was sentenced to 12 years imprisonment for each of the rape offences and five years imprisonment for each of the other offences. The applicant’s appeal was centred on the contention that his sentence was manifestly excessive. The applicant also contended that the sentence did not accord with the principle of parity, as the sentence for the offences of rape was less than that which would have been imposed for the equivalent offences if they had been charged as aggravated sexual assault under the previous legislation.

The court considered the principles of sentencing for serious violent offences, the need to ensure that the punishment reflects the seriousness of the crime, and the principle of parity. The court noted the gravity of the offences and the applicant’s lack of remorse, as well as the need for general and specific deterrence. The court also took into account the applicant's age at the time of offending, his troubled background, and his substance abuse issues. The court concluded that while the sentence for the rape offences was within the range of sentences that could be imposed, it was not manifestly excessive. However, the court found that the sentences for the other offences were inadequate in light of the principle of parity. The court also found that the sentence for the rape offences did not reflect the principle of parity with the previous legislation.

Accordingly, the appeal was allowed in part. The sentences imposed for the rape offences were affirmed, but the sentences for the other offences were set aside and replaced with sentences of 10 years imprisonment for each offence. These offences were also declared to be serious violent offences. The other sentences were affirmed, with all sentences to be served concurrently, except for the sentence for the Bail Act offence, which was to remain cumulative. The applicant was granted leave to appeal against his sentence, and the appeal was allowed in part as outlined above.

Orders

Orders of the court

1. Leave to appeal against sentence is granted.

2. The appeal be allowed.

3. The sentences imposed on 4 September 2013 in respect of counts 5, 6, 7 and 8 on the indictment be set aside and that for each such offence the applicant be sentenced to 10 years imprisonment.

4. Each such offence be declared a serious violent offence.

5. The other sentences imposed on 4 September 2013 be affirmed and that all sentences be served concurrently except for the summary offence referred to as Charge 9 on the Court order sheet and described as “the Bail Act offence” in the sentencing remarks, the term of which remains cumulative.

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.

Citations

AGLC Citation

R v GAR [2014] QCA 30

Most Recent Citation

R v Williams; ex parte Attorney-General (Qld) [2014] QCA 346

Cases citing this decision · 4 of 4 shown

R v Tory
[2022] QCA 276 Para 16

…entence of less than 10 years is the norm. No rule of thumb, of course, can be applied. The circumstances of each case must be addressed”. [145][2014] QCA 30. [146][2014] QCA 30 [33].…
R v Dendle
[2019] QCA 194 Para 7

…Attorney-General (Qld) ,[30] and R v SCQ .[31] [24][2004] QCA 445. [25][2009] QCA 100. [26][2010] QCA 236. [27][2011] QCA 36. [28][2012] QCA 41. [29][2014] QCA 30. [30][2014] QCA 346. [31][2017] QCA 49.…
R v Brown; Ex parte
[2016] QCA 156 Para 35

…fore the court. [19] R v Kahu [2006] QCA 413; R v Dowden [2010] QCA 125; R v Purcell [2010] QCA 285; R v Benjamin (2012) 224 A Crim R 40; R v GAR [2014] QCA 30. [20] R v Williams; Ex parte Attorney-General (Qld) [2014] QCA 346, [47]-[49]. [21] R v Williams; Ex parte Attorney-General (Qld) [2014] QCA 346, [50]-[5…
R v Williams; Ex parte
[2014] QCA 346

…155, applied R v Benjamin (2012) 224 A Crim R 40; [2012] QCA 188, considered R v Dowden [2010] QCA 125, considered R v GAR [2014] QCA 30, applied R v Harris [1998] 4 VR 21, applied R v Kahu [2006] QCA 413, considered R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, applied R v O’Brien [1998] QCA 80, c…

View all 4 citing cases →

Cases cited in this decision · 14 of 14 shown

Bugmy v The Queen
[2013] HCA 37

…tances the sentence was manifestly excessive Bail Act 1980 (Qld) Bugmy v The Queen (2013) 87 ALJR 1022; [2013] HCA 37, considered R v Basic (2000) 115 A Crim R 456; [2000] QCA 155, followed R v Benjamin (2012) 224 A Crim R 40; [2012] QCA 188, distinguished R v Bolton [2005] QCA 335, considered R v Dowden [2010]…
R v Benjamin
[2012] QCA 188

…idered R v Basic (2000) 115 A Crim R 456; [2000] QCA 155, followed R v Benjamin (2012) 224 A Crim R 40; [2012] QCA 188, distinguished R v Bolton [2005] QCA 335, considered R v Dowden [2010] QCA 125, distinguished R v Flew [2008] QCA 290, considered R v George (unreported, Court of Criminal Appeal, Qld, No 26 of 1…
R v Purcell
[2010] QCA 285 Para 1

…Counsel for the respondent referred the Court to R v Benjamin [1] and R v Purcell .[2] [1](2012) 224 A Crim R 40. [2][2010] QCA 285.…
R v Dowden
[2010] QCA 125 Para 1

…In his reasons in Purcell , with which the other members of the Court agreed, Cullinane J referred to R v Dowden [3] and R v Kahu .[4] [3][2010] QCA 125. [4][2006] QCA 413.…
R v Flew
[2008] QCA 290 Para 1

…reatly in excess of that employed by the applicant. A knife was used in Bolton and Flew . [6][2000] QCA 188. [7][2005] QCA 335. [8][2008] QCA 172. [9][2008] QCA 290.…
R v Wark
[2008] QCA 172 Para 1

…all used violence greatly in excess of that employed by the applicant. A knife was used in Bolton and Flew . [6][2000] QCA 188. [7][2005] QCA 335. [8][2008] QCA 172. [9][2008] QCA 290.…
R v Kahu
[2006] QCA 413 Para 1

…reasons in Purcell , with which the other members of the Court agreed, Cullinane J referred to R v Dowden [3] and R v Kahu .[4] [3][2010] QCA 125. [4][2006] QCA 413.…
R v Bolton
[2005] QCA 335 Para 1

…e perpetrators had all used violence greatly in excess of that employed by the applicant. A knife was used in Bolton and Flew . [6][2000] QCA 188. [7][2005] QCA 335. [8][2008] QCA 172. [9][2008] QCA 290.…
R v Mallie
[2000] QCA 188 Para 1

…these cases and the perpetrators had all used violence greatly in excess of that employed by the applicant. A knife was used in Bolton and Flew . [6][2000] QCA 188. [7][2005] QCA 335. [8][2008] QCA 172. [9][2008] QCA 290.…
R v Basic
[2000] QCA 155

…ld) Bugmy v The Queen (2013) 87 ALJR 1022; [2013] HCA 37, considered R v Basic (2000) 115 A Crim R 456; [2000] QCA 155, followed R v Benjamin (2012) 224 A Crim R 40; [2012] QCA 188, distinguished R v Bolton [2005] QCA 335, considered R v Dowden [2010] QCA 125, distinguished R v Flew [2008] QCA 290, considered R v…
R v O'Brien
[1998] QCA 80 Para 1

…1981, 21 September 1981). [14](unreported, Court of Criminal Appeal, Qld, No 26 of 1991, 13 June 1991). [15][1995] QCA 251. [16][1994] QCA 390. [17][1998] QCA 80.…
R v Sorby
[1995] QCA 251 Para 1

…of Criminal Appeal, Qld, No 67, 196 of 1981, 21 September 1981). [14](unreported, Court of Criminal Appeal, Qld, No 26 of 1991, 13 June 1991). [15][1995] QCA 251. [16][1994] QCA 390. [17][1998] QCA 80.…
R v Q
[1994] QCA 390 Para 1

…Qld, No 67, 196 of 1981, 21 September 1981). [14](unreported, Court of Criminal Appeal, Qld, No 26 of 1991, 13 June 1991). [15][1995] QCA 251. [16][1994] QCA 390. [17][1998] QCA 80.…
R v Soper
[1994] QCA 254 Para 1

…] R v Sorby ,[15] R v Q [16] and R v O’Brien [17] demonstrated that the sentence imposed was within the appropriate range of seven to 10 years. [12][1994] QCA 254. [13](unreported, Court of Criminal Appeal, Qld, No 67, 196 of 1981, 21 September 1981). [14](unreported, Court of Criminal Appeal, Qld, No 26 of 1991,…

Legislation cited in this decision · 1

Bail Act 1980 (Qld)
1 mention (from Para 1)

CITATION:	R v GAR [2014] QCA 30
PARTIES:	R v GAR (applicant)
FILE NO/S:	CA No 240 of 2013 DC No 441 of 2012 DC No 272 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	28 February 2014
DELIVERED AT:	Brisbane
HEARING DATE:	13 February 2014
JUDGES:	Muir and Fraser and Morrison JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave to appeal against sentence is granted. 2. The appeal be allowed. 3. The sentences imposed on 4 September 2013 in respect of counts 5, 6, 7 and 8 on the indictment be set aside and that for each such offence the applicant be sentenced to 10 years imprisonment. 4. Each such offence be declared a serious violent offence. 5. The other sentences imposed on 4 September 2013 be affirmed and that all sentences be served concurrently except for the summary offence referred to as Charge 9 on the Court order sheet and described as “the Bail Act offence” in the sentencing remarks, the term of which remains cumulative.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of two counts of attempted indecent treatment of a child under 16, one count of unlawfully exposing a child under 16 to an indecent act, one count of assault occasioning bodily harm and four counts of rape – where the applicant pleaded not guilty – where the applicant was sentenced to 12 years imprisonment for each of the rape offences and to five years imprisonment for each of the other offences – where a serious violent offence declaration was made – where the applicant was also sentenced for 20 summary offences – where all of the sentences imposed, other than a one month term of imprisonment imposed for a Bail Act 1980 (Qld) offence, were ordered to be served concurrently – where the applicant was 19 years of age at the time of offending – where the applicant had an extensive criminal history – where the applicant’s victim was his 15 year old aunty – where the applicant penetrated his victim’s vagina digitally before having vaginal and anal intercourse with her – where the assaults where accompanied by actual and threatened violence – where the applicant demonstrated no remorse – where the applicant had a troubled childhood – where the applicant was a heavy user of drugs and alcohol – whether in all the circumstances the sentence was manifestly excessive Bail Act 1980 (Qld) Bugmy v The Queen (2013) 87 ALJR 1022; [2013] HCA 37, considered R v Basic (2000) 115 A Crim R 456; [2000] QCA 155, followed R v Benjamin (2012) 224 A Crim R 40; [2012] QCA 188, distinguished R v Bolton[2005] QCA 335, considered R v Dowden[2010] QCA 125, distinguished