R v HAA - [2006] QCA 55

SUPREME COURT OF QUEENSLAND

CITATION: R v HAA [2006] QCA 55
PARTIES: R
v
HAA
(applicant)
FILE NO/S: CA No 230 of 2005
DC No 2104 of 2004
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING
COURT: District Court at Brisbane
DELIVERED EX 6 March 2006
TEMPORE ON:
DELIVERED AT: Brisbane
HEARING DATE: 6 March 2006
JUDGES: Williams and Jerrard JA and McMurdo J
Separate reasons for judgment of each member of the Court,
each concurring as to the order made
ORDER: Application for leave to appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where applicant convicted of maintaining an unlawful sexual relationship with a child under 16 and one count of rape and 15 counts of unlawful carnal knowledge – where unlawful sexual relationship with child was over a prolonged period – where applicant had a protective relationship with the child – where threats and emotional blackmail occurred – where applicant sentenced to 12 years imprisonment on first charge – where applicant argued that too few of the aggravating circumstances identified in R v SAG [2004] QCA 286 were present – whether sentence was manifestly excessive – whether the sentence should have been moderated to reflect the impact of the automatic serious violent offender declaration – whether leave to appeal should be granted

R v Cowie [2005] QCA 223; CA No 42 of 2005, 24 June
2005, discussed
R v Herford [2001] QCA 177; CA No 335 of 2000, 11 May
2001, cited
R v SAG [2004] QCA 286; CA No 55 of 2004, 6 August
2004, discussed
R v Shillingsworth [2001] QCA 172; [2002] 1 Qd R 527,
cited
Criminal Code 1899 (Qld), s 229B(3)
Penalties and Sentences Act 1992 (Qld), s 9(1)

COUNSEL: C L Morgan for the applicant
M J Copley for the respondent
SOLICITORS: Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the
respondent

WILLIAMS JA: I will ask Justice McMurdo to give his reasons first.

McMURDO J: After a five day trial, the applicant was convicted by the jury of maintaining an unlawful sexual relationship and one count of rape and 15 counts of unlawful carnal knowledge in the course of that relationship. He was sentenced to 12 years imprisonment on the first charge and on the others a conviction was recorded but no further penalty was imposed. He applies for leave to appeal against that sentence on the ground that it is manifestly excessive. He has abandoned his appeal against conviction.

The complainant was a granddaughter of the applicant's de facto partner. She was born in 1991 and the unlawful sexual relationship was found to have occurred between 1 January 2000

and 7 January 2004. Her evidence was that she was probably
nine…

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 HAA

Details

AGLC: R v HAA [2006] QCA 55
Case: [2006] QCA 55
Decision Date: 6/03/2006

CaseChat Overview and Summary

In the matter of R v HAA, the applicant appealed against his conviction for maintaining an unlawful sexual relationship with a child under 16, one count of rape, and 15 counts of unlawful carnal knowledge. The court was tasked with determining whether the applicant's sentence was manifestly excessive and if it should have been moderated in light of the impact of the automatic serious violent offender declaration. The applicant argued that too few of the aggravating circumstances identified in R v SAG [2004] QCA 286 were present to justify the severity of the sentence.

The court considered whether the sentence was manifestly excessive and if it should have been moderated to reflect the impact of the automatic serious violent offender declaration. The applicant argued that the court had not adequately considered the impact of the declaration. The court found that the sentence was not manifestly excessive, as it took into account the severity of the offences, the vulnerability of the victim, and the applicant's position of trust. The court also found that the impact of the declaration had been appropriately considered.

The appeal was dismissed as the court found that the sentence was not manifestly excessive, and the applicant's arguments did not warrant the grant of leave to appeal. The court found that the sentence appropriately reflected the gravity of the offences and the applicant's position of trust. The impact of the automatic serious violent offender declaration had been adequately considered, and the sentence was not manifestly excessive.

Orders

Orders of the court

Application for leave to appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

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 HAA [2006] QCA 55
PARTIES:	R v HAA (applicant)
FILE NO/S:	CA No 230 of 2005 DC No 2104 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX	6 March 2006
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	6 March 2006
JUDGES:	Williams and Jerrard JA and McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where applicant convicted of maintaining an unlawful sexual relationship with a child under 16 and one count of rape and 15 counts of unlawful carnal knowledge – where unlawful sexual relationship with child was over a prolonged period – where applicant had a protective relationship with the child – where threats and emotional blackmail occurred – where applicant sentenced to 12 years imprisonment on first charge – where applicant argued that too few of the aggravating circumstances identified in R v SAG [2004] QCA 286 were present – whether sentence was manifestly excessive – whether the sentence should have been moderated to reflect the impact of the automatic serious violent offender declaration – whether leave to appeal should be granted

COUNSEL:	C L Morgan for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent