R v HAP

Case [2008] QCA 137 27 May 2008

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SUPREME COURT OF QUEENSLAND

CITATION:

R v HAP [2008] QCA 137

PARTIES:

R
v
HAP
(applicant/appellant)

FILE NO/S:

CA No 40 of 2008
DC No 599 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

27 May 2008

DELIVERED AT:

Townsville

HEARING DATE:

27 May 2008

JUDGES:

McMurdo P, Muir JA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Application for leave to appeal granted

2.    Appeal allowed

3.    Sentences imposed at first instance set aside

4.    In respect of each of counts 1 and 2, the applicant is sentenced to 11 years imprisonment. These offences are declared to be serious violent offences.

5.     In respect of each of counts 3, 4 and 5, the applicant is sentenced to 7 years imprisonment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – appellant pleaded guilty to two counts of maintaining a sexual relationship with a child under 16 and three counts of rape – single sentence of 13 years imprisonment was imposed for all five offences – whether the sentencing judge erred in not imposing separate sentences for each offence

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 – appellant pleaded guilty to two counts of maintaining a sexual relationship with a child under 16 and three counts of rape – appellant had regular sexual intercourse with his step-daughter from when she was aged 5 to 16 – appellant pleaded guilty to ex officio indictment – appellant suffered from post traumatic stress disorder caused by his difficult childhood – appellant is affected by drug and alcohol abuse – whether sentence of 13 years for maintaining offences was appropriate

Criminal Code 1899 (Qld), s 229B

R v C; ex parte A-G (Qld) [2003] QCA 134, considered
R v Crofts [1999] 1 Qd R 386, applied
R v Dolan [2008] QCA 41, applied
R v PAD [2006] QCA 398, considered
R v Robinson [2007] QCA 99, considered

COUNSEL:

J D Henry SC, with J C Trevino, for the applicant/appellant
V P Keegan for the respondent

SOLICITORS:

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

THE PRESIDENT: The applicant pleaded guilty to an ex-officio indictment on 12 December 2007, charging two counts of maintaining a sexual relationship with a child under the age of 16 with circumstances of aggravation and three counts of rape. He was sentenced in the Townsville District Court on 7 February 2008 for a single term of 13 years imprisonment with respect to all 5 offences.

He applies for leave to appeal against his sentence contending that it was manifestly excessive and that the judge erred…

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 HAP

Details

AGLC: R v HAP [2008] QCA 137
Case: [2008] QCA 137
Decision Date: 27 May 2008

CaseChat Overview and Summary

The applicant, who is the appellant in this case, pleaded guilty to five counts of sexual offences against his step-daughter, including two counts of maintaining a sexual relationship with a child under 16 and three counts of rape. The High Court of Australia heard the appeal against the sentence imposed by the lower court, which was a single sentence of 13 years imprisonment for all five offences. The appellant argued that the sentencing judge erred in not imposing separate sentences for each offence. The court had to determine whether the appellant's sentence was appropriate given the circumstances of the case.

The legal issues before the court were whether the sentencing judge erred in imposing a single sentence for all five offences and whether the sentence imposed was appropriate in the circumstances. The appellant argued that the sentencing judge did not adequately consider the nature and circumstances of each offence when imposing a single sentence. The appellant also argued that the sentence was not appropriate given his difficult background, including post-traumatic stress disorder and drug and alcohol abuse.

The court found that the sentencing judge erred in imposing a single sentence for all five offences. The court held that the sentencing judge did not adequately consider the nature and circumstances of each offence when imposing the sentence. The court also found that the sentence imposed was not appropriate given the appellant's difficult background. The court held that the sentence should have been more severe given the gravity of the offences committed by the appellant. The court allowed the appeal and set aside the sentences imposed at first instance.

The court imposed new sentences for each of the offences committed by the appellant. The appellant was sentenced to 11 years imprisonment for each of the two counts of maintaining a sexual relationship with a child under 16, and 7 years imprisonment for each of the three counts of rape. The court declared each of the offences to be serious violent offences. The court granted the appellant leave to appeal and allowed the appeal.

Orders

Orders of the court

1. Application for leave to appeal granted

2. Appeal allowed

3. Sentences imposed at first instance set aside

4. In respect of each of counts 1 and 2, the applicant is sentenced to 11 years imprisonment. These offences are declared to be serious violent offences.

5. In respect of each of counts 3, 4 and 5, the applicant is sentenced to 7 years imprisonment.

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

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

R v HAP [2008] QCA 137

Most Recent Citation

R v TS [2008] QCA 370

Cases Citing This Decision

R v HBT [2018] QCA 227
Citation 1 (Para 31)

…nce imposed. In the result, both support the imposition of a higher sentence in cases where little or no remorse is shown. [86][2005] QCA 53. [87][2008] QCA 137.…
R v MCT [2018] QCA 189
Citation 2 (Para 12)

…R v Pont ,[245] R v CC ,[246] R v K [247] and R v HAP .[248] [244][2009] QCA 174. [245][2002] QCA 456. [246][2004] QCA 187. [247][1998] QCA 193. [248][2008] QCA 137.…
Meiers v Commissioner of Police Queensland [2018] QDC 30
Citation 3 (Para 1)

…That approach has been followed in a number of subsequent decisions of the Court of Appeal – see, for example, R v Dolan [2008] QCA 41; R v HAP [2008] QCA 137 and R v SBJ [2009] QCA 100.…
Rhodes v Commonwealth Director of Public Prosecutions [2017] QDC 165
Citation 4 (Para 1)

…n appeal and re-exercising the sentencing discretion. There was reference by the parties to R v Crofts [1999] 1 Qd R 386, Dolan [2008] QCA 41 and HAP [2008] QCA 137.…
Wu v Queensland Police Service [2012] QDC 102
Citation 5 (Para 1)

…387. [17] R v Croft [1999] 1 Qd R 386, 387. See also R v Nagy [2004] 1 Qd R 63 per Williams JA at p. 72 para 39; R v HAP [2008] QCA 137; R v Doolan [2008] QCA 41; R v SBJ [2009] QCA 100; R v Re Riera [2011] QCA 77.…
R v MBG and mbH [2009] QCA 252
Citation 6 (Para 1)

…ual circumstances, citing R v C; ex parte A-G (Qld) [2003] QCA 134; R v TR & FV; ex parte A-G (Qld) [2008] QCA 221; R v BBM [2008] QCA 162; R v HAP [2008] QCA 137; R v DAF [2004] QCA 368; R v BAX [2005] QCA 365; R v BAY [2005] QCA 427; R v BAO [2004] QCA 445; and R v R [2000] QCA 279. All involved offenders who h…
R v SBJ [2009] QCA 100
Citation 7

…, cited R v Crofts [1999] 1 Qd R 386; [1998] QCA 60, distinguished R v Dolan [2008] QCA 41, distinguished R v HAP [2008] QCA 137, distinguished R v Lowrie and Ross [2000] 2 Qd R 529; [1999] QCA 305, cited R v Shillingsworth [1985] 1 Qd R 537, cited COUNSEL: The applicant appeared on his own behalf M B Lehane for…
R v SBI [2009] QCA 73
Citation 8 (Para 1)

…appeal allowed; the Court must now re-sentence the applicant: R v Crofts ,[1] R v Dolan [2] and R v HAP .[3] [1][1998] QCA 060. [2][2008] QCA 41. [3][2008] QCA 137.…
R v. Pratt [2008] QCA 402
Citation 9 (Para 2)

…re-sentencing the applicant, should record a conviction on all or any of the offences. [1] [1999] 1 Qd R 386; [1998] QCA 060. [2] [2008] QCA 41. [3] [2008] QCA 137. The sentencing proceeding…
R v TS [2008] QCA 370
Citation 10 (Para 1)

…oadly comparable cases, leads to the conclusion that the sentence imposed for maintaining was manifestly excessive. [5] R v GQ [2005] QCA 53; R v HAP [2008] QCA 137 ; R v C ; ex parte A-G (Qld) [2003] QCA 134; R v BAY [2005] QCA 427; R v AP [2003] QCA 445; R v PAD [2006] QCA 398 ; R v S [1993] QCA 367.…

See all citing cases →

Cases Cited

R v Dolan [2008] QCA 41
Citation 1

…d), s 229B R v C; ex parte A-G (Qld) [2003] QCA 134, considered R v Crofts [1999] 1 Qd R 386, applied R v Dolan [2008] QCA 41, applied R v PAD [2006] QCA 398, considered R v Robinson [2007] QCA 99, considered COUNSEL: J D Henry SC, with J C Trevino, for the applicant/appellant V P Keegan for the respondent SOLIC…
R v Robinson [2007] QCA 99
Citation 2

…fts [1999] 1 Qd R 386, applied R v Dolan [2008] QCA 41, applied R v PAD [2006] QCA 398, considered R v Robinson [2007] QCA 99, considered COUNSEL: J D Henry SC, with J C Trevino, for the applicant/appellant V P Keegan for the respondent SOLICITORS: Legal Aid Queensland for the applicant/appellant Director of Pub…
R v PAD [2006] QCA 398
Citation 3

…(Qld) [2003] QCA 134, considered R v Crofts [1999] 1 Qd R 386, applied R v Dolan [2008] QCA 41, applied R v PAD [2006] QCA 398, considered R v Robinson [2007] QCA 99, considered COUNSEL: J D Henry SC, with J C Trevino, for the applicant/appellant V P Keegan for the respondent SOLICITORS: Legal Aid Queensland for…
R v BAY [2005] QCA 427
Citation 4

…C and PAD , considered together with the two other cases to which we have been referred, R v SAG [2004] (2004) 147 A Crim R 301; QCA 286 and R v BAY [2005] QCA 427, support a sentence in the present case on each of the charges of maintaining of 11 years imprisonment and sentences in respect of each of the counts…
R v C; ex parte [2003] QCA 134
Citation 5

…of 13 years for maintaining offences was appropriate Criminal Code 1899 (Qld), s 229B R v C; ex parte A-G (Qld) [2003] QCA 134, considered R v Crofts [1999] 1 Qd R 386, applied R v Dolan [2008] QCA 41, applied R v PAD [2006] QCA 398, considered R v Robinson [2007] QCA 99, considered COUNSEL: J D Henry SC, with J…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v HAP [2008] QCA 137
PARTIES:	R v HAP (applicant/appellant)
FILE NO/S:	CA No 40 of 2008 DC No 599 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	27 May 2008
DELIVERED AT:	Townsville
HEARING DATE:	27 May 2008
JUDGES:	McMurdo P, Muir JA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal granted 2. Appeal allowed 3. Sentences imposed at first instance set aside 4. In respect of each of counts 1 and 2, the applicant is sentenced to 11 years imprisonment. These offences are declared to be serious violent offences. 5. In respect of each of counts 3, 4 and 5, the applicant is sentenced to 7 years imprisonment.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – appellant pleaded guilty to two counts of maintaining a sexual relationship with a child under 16 and three counts of rape – single sentence of 13 years imprisonment was imposed for all five offences – whether the sentencing judge erred in not imposing separate sentences for each offence 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 – appellant pleaded guilty to two counts of maintaining a sexual relationship with a child under 16 and three counts of rape – appellant had regular sexual intercourse with his step-daughter from when she was aged 5 to 16 – appellant pleaded guilty to ex officio indictment – appellant suffered from post traumatic stress disorder caused by his difficult childhood – appellant is affected by drug and alcohol abuse – whether sentence of 13 years for maintaining offences was appropriate Criminal Code 1899 (Qld), s 229B R v C; ex parte A-G (Qld) [2003] QCA 134, considered R v Crofts [1999] 1 Qd R 386, applied R v Dolan [2008] QCA 41, applied R v PAD [2006] QCA 398, considered R v Robinson [2007] QCA 99, considered
COUNSEL:	J D Henry SC, with J C Trevino, for the applicant/appellant V P Keegan for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent