R v HAP

Case [2008] QCA 137


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…

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Details
AGLC
R v HAP [2008] QCA 137
Case
[2008] QCA 137
Decision Date

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

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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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