R v HAN

Case [2008] QCA 106 2 May 2008

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SUPREME COURT OF QUEENSLAND

CITATION:

R v HAN [2008] QCA 106

PARTIES:

R
v
HAN
(applicant/appellant)

FILE NOS:

CA No 76 of 2008
DC No 105 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

2 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

18 April 2008

JUDGES:

Muir JA, White and Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Application for leave to appeal against sentence granted

2.    Set aside the sentences imposed and in lieu thereof order that a period of imprisonment of six years be imposed for count 1; a period of imprisonment of three years be imposed for count 3; and a period of imprisonment of two years be imposed for each of counts 2, 4, 5, and 6

3.    All sentences to be served concurrently

4.    The applicant be eligible for parole at 10 March 2010

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – applicant pleaded guilty to one count of maintaining a sexual relationship with his daughter with circumstances of aggravation – head sentence of seven years imprisonment – parole eligibility date not fixed – the complainant was between 13 and 17 when the offences occurred – the applicant procured the complainant to perform fellatio upon him ‘daily’ for a period of three years – where relevant mitigating factors – sentence was manifestly excessive

Corrective Services Act 2006 (Qld), s 184(2)

R v A, (unreported, District Court of Queensland, Shanahan DCJ, 17 October 2007), distinguished
R v BAT [2005] QCA 82, considered
R v C [2000] QCA 145, considered
R v GY[2007] QCA 103, considered
R v H[2003] QCA 392, distinguished
R v MAH [2005] QCA 13, considered
R v PAD[2006] QCA 398, considered
R v R [2001] QCA 488, considered
R v S [2001] QCA 54, considered
R v SAG [2004] QCA 286, considered
R v SAH [2004] QCA 329, considered
R v Schneider; ex parte A-G (Qld) [2008] QCA 25, considered

COUNSEL:

J R Hunter for the applicant/appellant
M J Copley for the respondent

SOLICITORS:

Ben Miller Solicitors for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree with the reasons of Lyons J and the orders she proposes.

WHITE J: I agree with the reasons of Lyons J and the orders she proposes.

LYONS J: On 10 March 2008 the applicant pleaded guilty on a six count indictment which charged one count of maintaining a sexual relationship with a child with circumstances of aggravation, two counts of indecent treatment of a child under 16 who was a lineal descendant, one count of rape,…

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 HAN

Details

AGLC: R v HAN [2008] QCA 106
Case: [2008] QCA 106
Decision Date: 2 May 2008

CaseChat Overview and Summary

In the case of R v Han, the applicant appealed against his sentence following his guilty plea to multiple counts of maintaining a sexual relationship with his daughter, with circumstances of aggravation. The court was tasked with determining whether the original sentences were appropriate, given the nature of the offences and the mitigating factors presented. The applicant was convicted on six counts, with a head sentence of seven years imprisonment, with parole eligibility not fixed. The offences involved the applicant procuring his daughter to perform sexual acts upon him on a daily basis over a three-year period, while she was between the ages of 13 and 17.

The legal issues before the court included whether the original sentence was manifestly excessive and whether the applicant's mitigating circumstances warranted a reduction in sentence. The court needed to balance the severity of the crimes against the applicant's personal circumstances and any mitigating factors to determine an appropriate sentence. The court also considered the principles of sentencing for such serious offences and the need to ensure the sentence reflects the gravity of the crimes while also considering the applicant's potential for rehabilitation.

The court found that the original sentences were indeed manifestly excessive and did not adequately reflect the seriousness of the offences or the need to protect the community. After considering the mitigating factors and the principles of sentencing, the court set aside the original sentences and imposed new sentences that it deemed more appropriate. The new sentences included a period of imprisonment of six years for the first count, three years for the third count, and two years for each of the remaining counts, to be served concurrently. The court also set a parole eligibility date of 10 March 2010. This decision aimed to ensure that the sentence was both proportionate to the crimes committed and reflective of the mitigating factors present in the case.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Set aside the sentences imposed and in lieu thereof order that a period of imprisonment of six years be imposed for count 1; a period of imprisonment of three years be imposed for count 3; and a period of imprisonment of two years be imposed for each of counts 2, 4, 5, and 6

3. All sentences to be served concurrently

4. The applicant be eligible for parole at 10 March 2010

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 HAN [2008] QCA 106

Most Recent Citation

R v CAM [2009] QCA 44

Cases citing this decision · 10 of 10 shown

R v CCY
[2023] QCA 49 Para 24

…2014] QCA 159; R v MDG [2020] QCA 113; R v Miller [2021] QCA 126; R v Johnsone (a pseudonym) [2020] QCA 243; R v Margaritis [2013] QCA 401; R v HAN [2008] QCA 106; R v WAH [2009] QCA 263.…
R v SDR
[2022] QCA 93 Para 23

…to reflect the applicant’s criminality on a global basis with parole eligibility fixed at the one third mark. [8] R v WBL [2020] QCA 88; R v HAN [2008] QCA 106; and R v CBI [2013] QCA 186.…
R v BDN
[2021] QCA 130

…CA 231, cited R v FAK (2016) 263 A Crim R 322; [2016] QCA 306, cited R v HAN (2008) 184 A Crim R 153; [2008] QCA 106, considered R v Kemp (No 2) [1998] 2 Qd R 510; [1996] QCA 514, cited R v TY [2011] QCA 261, cited COUNSEL: M L Longhurst for the appellant/applicant C W Wallis for the respondent SOLICITORS: Mellic…
R v Bouttell
[2018] QCA 52

…A 114, cited R v Breckenridge [1998] QCA 136, cited R v FAK [2016] QCA 306, considered R v HAN (2008) 184 A Crim R 153; [2008] QCA 106, considered R v Kinersen-Smith & Connor; Ex parte Attorney-General (Qld) [2009] QCA 153, considered R v L; ex parte Attorney-General [1996] 2 Qd R 63; [1995] QCA 444, considered R…
R v FAK
[2016] QCA 306 Para 28

…The learned sentencing judge referred to R v HAN ,[137] describing it as the most useful of those cases which had been referred to the court. [137][2008] QCA 106.…
R v Margaritis
[2013] QCA 401 Para 1

…ncreased the maximum penalty to life imprisonment. The offender’s sentence of seven years for the maintaining offence was reduced to six years. [23][2008] QCA 106.…
R v TY
[2011] QCA 261 Para 1

…d a timely plea. However, the fact that the offender was the complainant’s natural father made the offending conduct particularly culpable. [10][2008] QCA 106.…
R v PAM
[2011] QCA 36 Para 1

…outweighed those personal circumstances. It was appropriate to set parole eligibility at one-third of the total sentence. [1](2008) 184 A Crim R 153; [2008] QCA 106.…
R v BBS
[2009] QCA 205 Para 1

…the complainant girls were, again, substantially older, 12-13 years) and R v T (2000) 113 A Crim R 439; and for the applicant, in addition, R v HAN [2008] QCA 106, R v GY [2007] QCA 103, R v MAH [2005] QCA 13 and R v BAT [2005] QCA 82. Mr Hoare submitted that a sentence of four and a half years would have been ap…
R v CAM
[2009] QCA 44 Para 1

…Mr Kissick, who appeared for the applicant, relied particularly on the cases of R v HAN [2008] QCA 106, R v BAT [2005] QCA 82 and R v SAU [2006] QCA 192.…

View all 10 citing cases →

Cases cited in this decision · 13 of 13 shown

R v. Schneider; ex parte A-G(Qld)
[2008] QCA 25 Para 1

…In R v Schneider; ex parte A-G (Qld) [2008] QCA 25 the offender, a school teacher, pleaded guilty to one count of maintaining, three counts of rape, one count of indecent treatment of a child under 16 and seven counts of indecent treatment of a child under 16 whilst in his care. All the offences related to stude…
R v GY
[2007] QCA 103 Para 1

…A number of authorities were referred to the sentencing Judge at the hearing including R v GY [2007] QCA 103, R v SAG [2004] QCA 286, R v MAH [2005] QCA 13, R v L [2002] QCA 268, R v SAH [2004] QCA 329 and R v M [2003] QCA 443 many of which discussed the distinction between digital and penile rape where more seve…
R v PAD
[2006] QCA 398 Para 1

…In R v SAG [2004] QCA 286 [1] Jerrard JA identified the factors that would lead to an increased sentence in cases of maintaining as: [1] See R v PAD [2006] QCA 398.…
R v BAT
[2005] QCA 82 Para 1

…In R v BAT [2005] QCA 82 an effective term of six years imprisonment was imposed with respect to a maintaining charge which involved indecent dealing and unlawful carnal knowledge and many acts of sexual intercourse over a three year period when the complainant was between the ages of 12 and 15. The sentence was…
R v MAH
[2005] QCA 13 Para 1

…A number of authorities were referred to the sentencing Judge at the hearing including R v GY [2007] QCA 103, R v SAG [2004] QCA 286, R v MAH [2005] QCA 13, R v L [2002] QCA 268, R v SAH [2004] QCA 329 and R v M [2003] QCA 443 many of which discussed the distinction between digital and penile rape where more sev…
R v SAH
[2004] QCA 329 Para 1

…to the sentencing Judge at the hearing including R v GY [2007] QCA 103, R v SAG [2004] QCA 286, R v MAH [2005] QCA 13, R v L [2002] QCA 268, R v SAH [2004] QCA 329 and R v M [2003] QCA 443 many of which discussed the distinction between digital and penile rape where more severe sentences were imposed for penile…
R v SAG
[2004] QCA 286 Para 1

…A number of authorities were referred to the sentencing Judge at the hearing including R v GY [2007] QCA 103, R v SAG [2004] QCA 286, R v MAH [2005] QCA 13, R v L [2002] QCA 268, R v SAH [2004] QCA 329 and R v M [2003] QCA 443 many of which discussed the distinction between digital and penile rape where more seve…
R v M
[2003] QCA 443 Para 1

…at the hearing including R v GY [2007] QCA 103, R v SAG [2004] QCA 286, R v MAH [2005] QCA 13, R v L [2002] QCA 268, R v SAH [2004] QCA 329 and R v M [2003] QCA 443 many of which discussed the distinction between digital and penile rape where more severe sentences were imposed for penile rape. It was also clear t…
R v H
[2003] QCA 392 Para 1

…in range. That case however involved a much longer period of offending of seven years with a much younger complainant. The Crown also relies on R v H [2003] QCA 392 where a sentence of eight years was imposed however that case involved not just regular and prolonged sexual interference over a two year period but…
R v L
[2002] QCA 268 Para 1

…uthorities were referred to the sentencing Judge at the hearing including R v GY [2007] QCA 103, R v SAG [2004] QCA 286, R v MAH [2005] QCA 13, R v L [2002] QCA 268, R v SAH [2004] QCA 329 and R v M [2003] QCA 443 many of which discussed the distinction between digital and penile rape where more severe sentences…
R v R
[2001] QCA 488 Para 1

…In R v R [2001] QCA 488 the offender was sentenced after a trial to four years imprisonment for maintaining a sexual relationship with his step daughter over a three year period. The offending involved having the complainant masturbate the offender and rubbing his penis against her genitals without penetration. O…
R v S
[2001] QCA 54 Para 1

…In R v S [2001] QCA 54 the offender was initially sentenced to six years imprisonment with a parole recommendation at two years. This was reduced on appeal to four and a half years with a recommendation after 18 months because the offender had voluntarily disclosed his offending to police. In that case the condu…
R v C
[2000] QCA 145 Para 1

…In R v C [2000] QCA 145 the offender who was sentenced to five years imprisonment had maintained a sexual relationship over a four year period when the complainant was aged six to 11 years and involved touching and digital penetration as well as fellatio.…

Legislation cited in this decision · 1

Corrective Services Act 2006 (Qld)
184(2) 2 mentions (from Para 2)

CITATION:	R v HAN [2008] QCA 106
PARTIES:	R v HAN (applicant/appellant)
FILE NOS:	CA No 76 of 2008 DC No 105 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	2 May 2008
DELIVERED AT:	Brisbane
HEARING DATE:	18 April 2008
JUDGES:	Muir JA, White and Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted 2. Set aside the sentences imposed and in lieu thereof order that a period of imprisonment of six years be imposed for count 1; a period of imprisonment of three years be imposed for count 3; and a period of imprisonment of two years be imposed for each of counts 2, 4, 5, and 6 3. All sentences to be served concurrently 4. The applicant be eligible for parole at 10 March 2010
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – applicant pleaded guilty to one count of maintaining a sexual relationship with his daughter with circumstances of aggravation – head sentence of seven years imprisonment – parole eligibility date not fixed – the complainant was between 13 and 17 when the offences occurred – the applicant procured the complainant to perform fellatio upon him ‘daily’ for a period of three years – where relevant mitigating factors – sentence was manifestly excessive Corrective Services Act 2006 (Qld), s 184(2) R v A, (unreported, District Court of Queensland, Shanahan DCJ, 17 October 2007), distinguished R v BAT [2005] QCA 82, considered R v C [2000] QCA 145, considered R v GY[2007] QCA 103, considered R v H[2003] QCA 392, distinguished R v MAH [2005] QCA 13, considered R v PAD[2006] QCA 398, considered R v R [2001] QCA 488, considered R v S [2001] QCA 54, considered R v SAG [2004] QCA 286, considered R v SAH [2004] QCA 329, considered R v Schneider; ex parte A-G (Qld) [2008] QCA 25, considered
COUNSEL:	J R Hunter for the applicant/appellant M J Copley for the respondent
SOLICITORS:	Ben Miller Solicitors for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent