R v Hci

Case [2022] QCA 2 1 February 2022

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SUPREME COURT OF QUEENSLAND

CITATION:

R v HCI [2022] QCA 2

PARTIES:

R
v
HCI
(applicant)

FILE NO/S:

CA No 137 of 2021
DC No 2259 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 24 May 2021 (Smith DCJ)

DELIVERED ON:

1 February 2022

DELIVERED AT:

Brisbane

HEARING DATE:

18 November 2021

JUDGES:

Fraser and Bond JJA and Daubney J

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of maintaining an unlawful relationship with a child and seven counts of indecent treatment of a child under 16 who was under 12 – where the applicant was sentenced to concurrent terms of imprisonment of four years and six months – where the sentencing judge fixed 22 September 2022 as the parole eligibility date – where the applicant applies for leave to appeal against sentence upon the ground that the sentence was manifestly excessive in that the Judge erred in various respects described in five paragraphs – where the applicant was sentenced upon an agreed statement of facts – where the applicant contended that the sentencing judge did not give sufficient weight to specified matters – where the circumstance that the sentence imposed accorded with the sentence for which the applicant contended makes it difficult to accept that the subject sentence was “manifestly” excessive or “plainly” unjust – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v Auer; Ex parte Attorney-General (Qld)[2011] QCA 222, cited
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
R v Pike[2021] QCA 285, cited
R v UC[2008] QCA 194, considered
R v WAH[2009] QCA 263, considered
R v Walsh[2008] QCA 391, considered

COUNSEL:

K M Hillard and A Mason for the applicant
S J Muir for the respondent

SOLICITORS:

Mulcahy Ryan Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: Upon the applicant’s pleas of guilty entered in February 2021, on 24 May 2021 the applicant was sentenced to concurrent terms of imprisonment of four years and six months for maintaining an unlawful relationship with a child (count 1) and 18 months for each of seven counts of indecent treatment of a child under 16 who was under 12 (counts 2 – 8). The sentencing judge fixed 22 September 2022 (16 months after the date of sentence) as the parole eligibility date. The applicant applies for leave to appeal against sentence upon the ground that the sentence was manifestly excessive in that the Judge erred in various respects described in five paragraphs.
The applicant was sentenced upon an agreed statement of facts. The complainants were…

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 Hci

Details

AGLC: R v Hci [2022] QCA 2
Case: [2022] QCA 2
Decision Date: 1 February 2022

CaseChat Overview and Summary

In the case of R v Hci, the applicant sought leave to appeal against his sentence, arguing that it was manifestly excessive. The applicant had pleaded guilty to maintaining an unlawful relationship with a child under 12 and seven counts of indecent treatment of a child under 16. He was sentenced to concurrent terms of imprisonment of four years and six months with a parole eligibility date of 22 September 2022. The applicant contended that the sentencing judge did not give sufficient weight to specified matters in determining the sentence.

The legal issue before the court was whether the sentence was manifestly excessive. The court examined the applicant's contentions that the sentencing judge did not give sufficient weight to the applicant's rehabilitation, the length of time since the subject offending, and the evidence of treatment and rehabilitation regarding the applicant's old reported sexual fantasies. The court found that the sentencing judge did take into account the evidence upon each of those topics and that the applicant's contentions were not viable grounds for appellate interference in the sentence.

The court held that the sentencing judge addressed the issue of totality and considered what sentence the applicant might have been given if on the same occasion he had been sentenced for the subject offending and the offending for which the applicant was sentenced in the two preceding sentences. The court observed that the sentence imposed accorded with the sentence for which the applicant contended and that it was difficult to accept that the sentence was "manifestly" excessive or "plainly" unjust.

The court refused the applicant's application for leave to appeal against his sentence.

Orders

Orders of the court

Application for leave to appeal refused.

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

The sentencing judge addressed the issue of totality, accepting the need to consider what sentence the applicant might have been given if on the same occasion he had been sentenced for the subject offending and the offending for which the applicant was sentenced in the two preceding sentences. The sentencing judge considered the applicant probably would have received a sentence in the order of nine years, or perhaps eight to nine years, perhaps with an altered parole eligibility date, to reflect the pleas of guilty and to avoid the impacts of a serious violent offence declaration. After identifying the terms of imprisonment that would be imposed the sentencing judge observed that the applicant had already served two years and eight months of “that total term” (the notional total term of imprisonment of 8.5 years under the two preceding sentences and the subject sentence) and a further 16 months (before parole eligibility) was appropriate.Consideration The ground of the application conveys that the contention that the sentence is manifestly excessive is established by identifiable errors in the exercise of the sentencing discretion. That is inconsistent with the established distinction between an identifiable error (a “specific error”) in the exercise of the sentencing discretion (acting upon a wrong principle, taking into account an irrelevant consideration, mistaking the facts, or failing to take into account a material consideration) and a conclusion that upon the facts the sentence is “unreasonable or plainly unjust” from which it may be inferred that there must have been some unidentifiable failure properly to exercise the sentencing discretion.[9] The expression “manifestly excessive” connotes an error of the second kind. As the High Court more recently put it, the second kind of error will be established only if, “having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle”.[10] In argument, the applicant’s counsel contended for both kinds of error.[9]House v The King (1936) 55 CLR 499 at 504 - 505.[10]R v Pham (2015) 256 CLR 550 at [28]. I will refer first to each of the specific errors alleged in the five paragraphs of the ground of the application and at the same time make some observations that relate to the contention that the sentence is manifestly excessive.(i): Considering the Applicant’s old reported sexual fantasies was an issue on sentence, when the Applicant was not required to adduce any evidence as to recovery from same and where the Judge failed to have proper regard to other evidence of treatment and/or rehabilitation as to same(ii): Failing to give proper regard and weight to the Applicant’s rehabilitation and the length of time since the subject offending. The applicant’s argument revealed that “failed to have proper regard to” in the second part of paragraph (i) and “give proper regard and weight to” in paragraph (ii) were intended to convey no more than “did not give sufficient weight to”. That is not a contention that the sentencing judge did not take into account the relevant evidence of treatment and rehabilitation or the associated topic of the length of time since the subject offending. These contentions are not viable grounds for appellate interference in the sentence.[11] The sentencing judge took into account the evidence upon each of those topics.[11]See R v Pike [2021] QCA 285 at [38] and the cases there cited.

Citations

AGLC Citation

R v Hci [2022] QCA 2

Most Recent Citation

R v RBG [2022] QCA 143

Cases citing this decision · 1 of 1 shown

R v RBG
[2022] QCA 143 Para 27

…son who had otherwise established good character over a long period.[8] [8] R v L; Ex parte Attorney-General [1996] 2 Qd R 63 approved in R v HCI [2022] QCA 2 at [6].…

View all 1 citing cases →

Cases cited in this decision · 17 of 17 shown

R v Pike
[2021] QCA 285 Para 4

…llate interference in the sentence.[11] The sentencing judge took into account the evidence upon each of those topics. [11]See R v Pike [2021] QCA 285 at [38] and the cases there cited.…
R v McCoy
[2020] QCA 59 Para 23

…R v KAJ, Ex parte Attorney-General (Qld) ,[25] and R v BCW .[26] [16][2004] QCA 286. [17][2009] QCA 263. [18][2011] QCA 222. [19][2008] QCA 67. [20][2020] QCA 59. [21][2008] QCA 194. [22][2003] QCA 305. [23][2011] QCA 36. [24][1999] QCA 448. [25][2013] QCA 118. [26][2014] QCA 340.…
Strbak v The Queen
[2020] HCA 10 Para 9

…is a conventional approach. Neither passage evidences any error in the exercise of the sentencing discretion. [12]Contrast Strbak v The Queen (2020) 267 CLR 494 at [31]-[33], [44] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).…
R v Pham
[2015] HCA 39

…; [1936] HCA 40, cited R v Auer; Ex parte Attorney-General (Qld) [2011] QCA 222, cited R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited R v Pike [2021] QCA 285, cited R v UC [2008] QCA 194, considered R v WAH [2009] QCA 263, considered R v Walsh [2008] QCA 391, considered COUNSEL: K M Hillard and A Mason for th…
R v BCW
[2014] QCA 340 Para 23

…A 222. [19][2008] QCA 67. [20][2020] QCA 59. [21][2008] QCA 194. [22][2003] QCA 305. [23][2011] QCA 36. [24][1999] QCA 448. [25][2013] QCA 118. [26][2014] QCA 340.…
R v KAJ; Ex parte Attorney-General (Qld)
[2013] QCA 118 Para 23

…A 263. [18][2011] QCA 222. [19][2008] QCA 67. [20][2020] QCA 59. [21][2008] QCA 194. [22][2003] QCA 305. [23][2011] QCA 36. [24][1999] QCA 448. [25][2013] QCA 118. [26][2014] QCA 340.…
R v Auer; ex parte
[2011] QCA 222 Para 23

…Ex parte Attorney-General (Qld) ,[24] R v KAJ, Ex parte Attorney-General (Qld) ,[25] and R v BCW .[26] [16][2004] QCA 286. [17][2009] QCA 263. [18][2011] QCA 222. [19][2008] QCA 67. [20][2020] QCA 59. [21][2008] QCA 194. [22][2003] QCA 305. [23][2011] QCA 36. [24][1999] QCA 448. [25][2013] QCA 118. [26][2014] QC…
R v PAM
[2011] QCA 36 Para 23

….[26] [16][2004] QCA 286. [17][2009] QCA 263. [18][2011] QCA 222. [19][2008] QCA 67. [20][2020] QCA 59. [21][2008] QCA 194. [22][2003] QCA 305. [23][2011] QCA 36. [24][1999] QCA 448. [25][2013] QCA 118. [26][2014] QCA 340.…
R v WAH
[2009] QCA 263 Para 23

…AM ,[23] R v Levack; Ex parte Attorney-General (Qld) ,[24] R v KAJ, Ex parte Attorney-General (Qld) ,[25] and R v BCW .[26] [16][2004] QCA 286. [17][2009] QCA 263. [18][2011] QCA 222. [19][2008] QCA 67. [20][2020] QCA 59. [21][2008] QCA 194. [22][2003] QCA 305. [23][2011] QCA 36. [24][1999] QCA 448. [25][2013] QC…
R v Walsh
[2008] QCA 391 Para 20

…ent’s submission that, having regard to the circumstances already described, the sentence is not manifestly excessive. [15] R v Walsh [2008] QCA 391 at [17] – [18] and [22] – [23].…
R v UC
[2008] QCA 194 Para 23

…ttorney-General (Qld) ,[25] and R v BCW .[26] [16][2004] QCA 286. [17][2009] QCA 263. [18][2011] QCA 222. [19][2008] QCA 67. [20][2020] QCA 59. [21][2008] QCA 194. [22][2003] QCA 305. [23][2011] QCA 36. [24][1999] QCA 448. [25][2013] QCA 118. [26][2014] QCA 340.…
R v EH
[2008] QCA 67 Para 23

…eneral (Qld) ,[24] R v KAJ, Ex parte Attorney-General (Qld) ,[25] and R v BCW .[26] [16][2004] QCA 286. [17][2009] QCA 263. [18][2011] QCA 222. [19][2008] QCA 67. [20][2020] QCA 59. [21][2008] QCA 194. [22][2003] QCA 305. [23][2011] QCA 36. [24][1999] QCA 448. [25][2013] QCA 118. [26][2014] QCA 340.…
R v SAG
[2004] QCA 286 Para 23

…el relies upon R v PAM ,[23] R v Levack; Ex parte Attorney-General (Qld) ,[24] R v KAJ, Ex parte Attorney-General (Qld) ,[25] and R v BCW .[26] [16][2004] QCA 286. [17][2009] QCA 263. [18][2011] QCA 222. [19][2008] QCA 67. [20][2020] QCA 59. [21][2008] QCA 194. [22][2003] QCA 305. [23][2011] QCA 36. [24][1999] QC…
R v Dillon
[2003] QCA 305 Para 23

…) ,[25] and R v BCW .[26] [16][2004] QCA 286. [17][2009] QCA 263. [18][2011] QCA 222. [19][2008] QCA 67. [20][2020] QCA 59. [21][2008] QCA 194. [22][2003] QCA 305. [23][2011] QCA 36. [24][1999] QCA 448. [25][2013] QCA 118. [26][2014] QCA 340.…
R v Levack; ex parte
[1999] QCA 448 Para 23

…A 286. [17][2009] QCA 263. [18][2011] QCA 222. [19][2008] QCA 67. [20][2020] QCA 59. [21][2008] QCA 194. [22][2003] QCA 305. [23][2011] QCA 36. [24][1999] QCA 448. [25][2013] QCA 118. [26][2014] QCA 340.…
House v R
[1936] HCA 40

…e sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9 House v The King (1936) 55 CLR 499; [1936] HCA 40, cited R v Auer; Ex parte Attorney-General (Qld) [2011] QCA 222, cited R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited R v Pike [2021] QCA 285, cited R v UC [2008] QCA 194, consider…
House v The King
63 WN 176 Para 2

…e must have been some misapplication of principle”.[10] In argument, the applicant’s counsel contended for both kinds of error. [9] House v The King (1936) 55 CLR 499 at 504 - 505. [10] R v Pham (2015) 256 CLR 550 at [28].…

Legislation cited in this decision · 2

Penalties and Sentences Act 1992 (Qld)
9 2 mentions (from Para 21)
Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld)
1 mention (from Para 16)

CITATION:	R v HCI [2022] QCA 2
PARTIES:	R v HCI (applicant)
FILE NO/S:	CA No 137 of 2021 DC No 2259 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 24 May 2021 (Smith DCJ)
DELIVERED ON:	1 February 2022
DELIVERED AT:	Brisbane
HEARING DATE:	18 November 2021
JUDGES:	Fraser and Bond JJA and Daubney J
ORDER:	Application for leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of maintaining an unlawful relationship with a child and seven counts of indecent treatment of a child under 16 who was under 12 – where the applicant was sentenced to concurrent terms of imprisonment of four years and six months – where the sentencing judge fixed 22 September 2022 as the parole eligibility date – where the applicant applies for leave to appeal against sentence upon the ground that the sentence was manifestly excessive in that the Judge erred in various respects described in five paragraphs – where the applicant was sentenced upon an agreed statement of facts – where the applicant contended that the sentencing judge did not give sufficient weight to specified matters – where the circumstance that the sentence imposed accorded with the sentence for which the applicant contended makes it difficult to accept that the subject sentence was “manifestly” excessive or “plainly” unjust – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9 House v The King (1936) 55 CLR 499; [1936] HCA 40, cited R v Auer; Ex parte Attorney-General (Qld)[2011] QCA 222, cited R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited R v Pike[2021] QCA 285, cited R v UC[2008] QCA 194, considered R v WAH[2009] QCA 263, considered R v Walsh[2008] QCA 391, considered
COUNSEL:	K M Hillard and A Mason for the applicant S J Muir for the respondent
SOLICITORS:	Mulcahy Ryan Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent