R v Hav - [2009] QCA 259

SUPREME COURT OF QUEENSLAND

CITATION:

R v HAV [2009] QCA 259

PARTIES:

R
v
HAV
(applicant/appellant)

FILE NO/S:

CA No 6 of 2009
DC No 3290 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2009

JUDGES:

Keane and Muir JJA and White J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal against conviction dismissed.

2.   Application for leave to appeal against sentence allowed.

3.   Appeal against sentence allowed.

4.   The sentences imposed in respect of counts 1 and 9 be set aside and the appellant be sentenced to a term of imprisonment of 12 years for count 1.

5.   The declaration made by the primary judge under s 161B of the Penalties and Sentences Act 1992 (Qld) be set aside.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant convicted, after trial, of one count of maintaining a sexual relationship with a child under 16 (count 1), six counts of indecent treatment of a child under 16 and one count of rape (count 9) – where appellant acquitted of one count of indecent treatment of a child under 16 and four counts of rape – where count 1 was accompanied by circumstances of aggravation including rape – where appellant submitted that the jury’s verdict in relation to count 9 and the circumstance of aggravation of rape in relation to count 1 was insupportable as there was no evidence that the conduct complained of was non-consensual and that the verdict was inconsistent with the acquittals on the other counts of rape – whether convictions unsafe and unsatisfactory in all the circumstances

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant sentenced to 14 years imprisonment for counts 1 and 9 and to five years imprisonment for each of the other counts – where, in relation to count 1, a serious violent offence declaration was made in accordance with Part 9A Penalties and Sentences Act 1992 (Qld) – where majority of charges occurred before the commencement of Part 9A – whether serious violent offence declaration appropriate – whether sentence manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 161B, Part 9A

R v AP [2003] QCA 445, considered
R v BAO [2004] QCA 445, cited
R v BAY (2005) 157 A Crim R 309; [2005] QCA 427, distinguished
R v KAI [2002] QCA 378, cited
R v KN [2005] QCA 74, distinguished
R v Mason and Saunders [1998] 2 Qd R 186; [1997] QCA 421, cited
R v S[1999] QCA 311, distinguished
R v SAG (2004) 147 A Crim R 301; [2004] QCA 286, distinguished
R v SAK [2004]…

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 Hav

Details

AGLC: R v Hav [2009] QCA 259
Case: [2009] QCA 259
Decision Date: 4 September 2009

CaseChat Overview and Summary

In the matter of R v Hav, the appellant was convicted, following a trial, of maintaining a sexual relationship with a child under 16, six counts of indecent treatment of a child under 16, and one count of rape. The appellant was acquitted on one count of indecent treatment of a child under 16 and four counts of rape. The appellant appealed against his conviction and sentence, arguing that the jury's verdict was unreasonable and inconsistent, and that the sentence was excessive. The appeal against conviction focused on the jury's verdict regarding count 9, the rape charge, and the circumstance of aggravation of rape in relation to count 1, which included rape. The appellant submitted that the verdict was insupportable as there was no evidence that the conduct complained of was non-consensual and that the verdict was inconsistent with the acquittals on the other counts of rape.

The legal issues before the court were whether the convictions were unsafe and unsatisfactory in all the circumstances, and whether the sentence was manifestly excessive or inadequate. The court considered the evidence presented at trial and the appellant's arguments regarding the verdict and sentence. In relation to the appeal against conviction, the court found that the jury's verdict was not unreasonable or inconsistent, and that there was sufficient evidence to support the convictions. The court found that the jury was entitled to find that the appellant's conduct was non-consensual and that the verdict was consistent with the evidence presented at trial. In relation to the appeal against sentence, the court found that the sentence was manifestly excessive and that a sentence of 12 years imprisonment for count 1 was appropriate.

The court dismissed the appeal against conviction, finding that the convictions were safe and satisfactory in all the circumstances. The court allowed the appeal against sentence, finding that the sentence was manifestly excessive and that a sentence of 12 years imprisonment for count 1 was appropriate. The court set aside the declaration made by the primary judge under s 161B of the Penalties and Sentences Act 1992 (Qld) and ordered that the sentences imposed in respect of counts 1 and 9 be set aside and the appellant be sentenced to a term of imprisonment of 12 years for count 1. The court found that the serious violent offence declaration was not appropriate in this case, as the majority of the charges occurred before the commencement of Part 9A of the Penalties and Sentences Act 1992 (Qld).

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence allowed.

3. Appeal against sentence allowed.

4. The sentences imposed in respect of counts 1 and 9 be set aside and the appellant be sentenced to a term of imprisonment of 12 years for count 1.

5. The declaration made by the primary judge under s 161B of the Penalties and Sentences Act 1992 (Qld) be set aside.

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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CITATION:	R v HAV [2009] QCA 259
PARTIES:	R v HAV (applicant/appellant)
FILE NO/S:	CA No 6 of 2009 DC No 3290 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	4 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	21 August 2009
JUDGES:	Keane and Muir JJA and White J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence allowed. 3. Appeal against sentence allowed. 4. The sentences imposed in respect of counts 1 and 9 be set aside and the appellant be sentenced to a term of imprisonment of 12 years for count 1. 5. *The declaration made by the primary judge under s 161B of the Penalties and Sentences Act* 1992 (Qld) be set aside.**
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant convicted, after trial, of one count of maintaining a sexual relationship with a child under 16 (count 1), six counts of indecent treatment of a child under 16 and one count of rape (count 9) – where appellant acquitted of one count of indecent treatment of a child under 16 and four counts of rape – where count 1 was accompanied by circumstances of aggravation including rape – where appellant submitted that the jury’s verdict in relation to count 9 and the circumstance of aggravation of rape in relation to count 1 was insupportable as there was no evidence that the conduct complained of was non-consensual and that the verdict was inconsistent with the acquittals on the other counts of rape – whether convictions unsafe and unsatisfactory in all the circumstances CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant sentenced to 14 years imprisonment for counts 1 and 9 and to five years imprisonment for each of the other counts – where, in relation to count 1, a serious violent offence declaration was made in accordance with Part 9A Penalties and Sentences Act 1992 (Qld) – where majority of charges occurred before the commencement of Part 9A – whether serious violent offence declaration appropriate – whether sentence manifestly excessive Penalties and Sentences Act 1992 (Qld), s 161B, Part 9A R v AP [2003] QCA 445, considered R v BAO [2004] QCA 445, cited R v BAY (2005) 157 A Crim R 309; [2005] QCA 427, distinguished R v KAI [2002] QCA 378, cited R v KN [2005] QCA 74, distinguished R v Mason and Saunders [1998] 2 Qd R 186; [1997] QCA 421, cited R v S[1999] QCA 311, distinguished R v SAG (2004) 147 A Crim R 301; [2004] QCA 286, distinguished R v SAK [2004]…