R v HCL - [2023] QCA 68

SUPREME COURT OF QUEENSLAND

CITATION:

R v HCL [2023] QCA 68

PARTIES:

R
v
HCL
(applicant)

FILE NO/S:

CA No 29 of 2023
DC No 495 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh – Date of Sentence: 27 January 2023 (Chowdhury DCJ)

DELIVERED ON:

Date of Orders: 24 March 2023
Date of Publication of Reasons: 18 April 2023

DELIVERED AT:

Brisbane

HEARING DATE:

24 March 2023

JUDGES:

Mullins P and Bond JA and Gotterson AJA

ORDERS:

Date of Orders: 24 March 2023

1.   Application for leave to appeal granted.

2.   Appeal allowed.

3.   Set aside the sentences imposed and the orders made by the sentencing judge in the District Court at Beenleigh on 27 January 2023 and in lieu the Applicant is sentenced as follows for all counts:

(a) The Applicant is released under the supervision of an authorised Corrective Services officer for a period of two years and he must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 (Qld) and report within two business days of his release from custody to an authorised Corrective Services officer at the Inala Probation and Parole Office, 141 Boundary Road, Oxley;

(b)     No convictions recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the Applicant, who was a minor at the time of the offending, pleaded guilty to four counts of rape and five counts of indecent treatment of a child under 16 years of age who was under 12 years of age at the time of the offending – where the complainant was the Applicant’s younger sister – where the Applicant was sentenced to two years imprisonment on each count of rape and 12 months imprisonment for each count of indecent treatment, with all sentences to be served concurrently – where the sentences were to be suspended after five months for an operational period for two years – where the Schedule of Facts before the sentencing judge included details of uncharged offending by the Applicant – where the sentencing judge sentenced the Applicant for uncharged acts – whether a specific error was made by the sentencing judge – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(4)(c)
Youth Justice Act 1992 (Qld), s 140(1), s 144(3)

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, followed
R v AAQ[2012] QCA 335, distinguished
R v D [1996] 1 Qd R 363; [1995] QCA 329, cited
R v L; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63; [1995] QCA 444, cited
R v LAL [2019] 2 Qd R 115; [2018] QCA 179, cited
R v OQ[2011] QCA 348, distinguished
R v PGW (2002) 134 A Crim R 593; [2002] QCA 462, cited

COUNSEL:

S L Kissick for the applicant
S J Muir for…

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 HCL

Details

AGLC: R v HCL [2023] QCA 68
Case: [2023] QCA 68
Decision Date: 18 April 2023

CaseChat Overview and Summary

In the case of R v HCL, the applicant appealed against his sentence, arguing that it was manifestly excessive or inadequate. The applicant, a minor at the time of the offending, pleaded guilty to four counts of rape and five counts of indecent treatment of his younger sister, who was under 12 years of age at the time. The sentencing judge imposed concurrent sentences of two years imprisonment for each count of rape and 12 months imprisonment for each count of indecent treatment, with the sentences to be suspended after five months for an operational period of two years. The applicant argued that a specific error was made by the sentencing judge and that the sentence was manifestly excessive.

The court considered the legal issues regarding the sentence imposed by the sentencing judge. The court noted that the sentencing judge had considered the circumstances of the charged offending, the Victim Impact Statement, the psychologist's report, and the applicant's personal circumstances and family support. The sentencing judge also observed that the applicant must be sentenced as an adult under s 140(1) of the Youth Justice Act 1992 (Qld), and that had the applicant been sentenced as a 16 or 17 year old, detention would have been the only appropriate sentence. The court also noted that s 9(4)(c) of the Penalties and Sentences Act 1992 (Qld) required that an offender who was sentenced for any offence of a sexual nature committed in relation to a child under 16 years must serve an actual term of imprisonment unless there were exceptional circumstances.

The court found that the sentencing judge had erred in sentencing the applicant for uncharged acts and that the sentence was manifestly excessive. The court noted that the sentencing judge had considered the uncharged acts in sentencing the applicant, which was not appropriate. The court also found that the sentence imposed by the sentencing judge was manifestly excessive, as it was disproportionate to the severity of the offending and did not take into account the applicant's age and personal circumstances.

The court allowed the appeal and set aside the sentences imposed and the orders made by the sentencing judge. In lieu of the original sentence, the applicant was sentenced to be released under the supervision of an authorised Corrective Services officer for a period of two years, with no convictions recorded. The applicant must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 (Qld) and report within two business days of his release from custody to an authorised Corrective Services officer at the Inala Probation and Parole Office, 141 Boundary Road, Oxley.

Orders

Orders of the court

Date of Orders: 24 March 2023

1. Application for leave to appeal granted.

2. Appeal allowed.

3. Set aside the sentences imposed and the orders made by the sentencing judge in the District Court at Beenleigh on 27 January 2023 and in lieu the Applicant is sentenced as follows for all counts:

(a) The Applicant is released under the supervision of an authorised Corrective Services officer for a period of two years and he must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 (Qld) and report within two business days of his release from custody to an authorised Corrective Services officer at the Inala Probation and Parole Office, 141 Boundary Road, Oxley;

(b) No convictions recorded.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The complainant decided not to make a formal complaint at that point for fear of getting her older brother into trouble. Her complaint was withdrawn. However, in January 2022, the complainant attended the Logan Central Police Station and made a formal complaint. The Applicant participated in a record of interview on 22 February 2022. In light of extensive admissions then made by him, he was formally charged and released on bail.The evidence before the learned sentencing judge and the sentencing remarks The learned sentencing judge had before him a Schedule of Facts[3] which described the charged offending in the terms that I have set out above. His Honour also had a Victim Impact Statement[4] in which the complainant described the guilt, shame, anxiety, anger and hopelessness that has consumed her life as a result of the Applicant’s offending. There was a report prepared by Ms Amanda Akers, clinical psychologist, who interviewed the Applicant on 15 October 2022[5], a number of emails from the Applicant’s mother, grandmother, partner and partner’s grandmother[6], and an apology sent by the Applicant to the complainant by email several days before the sentence hearing.[7][3]Exhibit 1; AB 35 – 36.[4]Exhibit 2; AB 37.[5]Exhibit 3; AB 38 – 43.[6]Exhibit 4; AB 44 – 51.[7]Exhibit 5; AB 52. In his sentencing remarks, his Honour referred to the circumstances of the charged offending, other information in the Schedule of Facts, and the traumatisation described in the Victim Impact Statement. He noted to the extensive admissions and pleas of guilty, the “great” assistance provided to him by the psychologist’s report, the Applicant’s remorse, his personal circumstances and family support, and the absence of subsequent offending by him. His Honour observed that s 140(1) of the Youth Justice Act 1992 (Qld) (“YJA”) required the Applicant to be sentenced as an adult. In having regard to s 144(3) YJA, he expressed the view that had the Applicant been sentenced as a 16 or 17 year old, detention would have been the only appropriate sentence in the circumstances and that the Applicant would have been required to serve some time in youth detention.[8] That provision prohibits a court when sentencing an offender as an adult, from ordering the offender to serve a term of imprisonment longer than the period of detention that the court could have imposed had the offender been sentenced as a child.[8]Sentencing Transcript 1 – 4 ll4 – 8; AB 31. His Honour also adverted to the provisions of s 9(4)(c) of the Penalties and Sentences Act 1992 (Qld) (“PSA”) which require that an offender who is sentenced for any offence of a sexual nature committed in relation to a child under 16 years must serve an actual term of imprisonment unless there are exceptional circumstances. He said that he was not satisfied that there were such circumstances in the Applicant’s case.[9][9]Ibid 1 – 5 ll29 – 32; AB 32. In the absence of being so satisfied, the learned sentencing judge acknowledged that he was required to sentence the Applicant to actual imprisonment. He stated, however, that for all the factors in the Applicant’s favour, he would reduce the time to be served to the bare minimum that he considered appropriate.[10][10]Ibid ll33 – 35.The grounds of appeal

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v HCL [2023] QCA 68
PARTIES:	R v HCL (applicant)
FILE NO/S:	CA No 29 of 2023 DC No 495 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh – Date of Sentence: 27 January 2023 (Chowdhury DCJ)
DELIVERED ON:	Date of Orders: 24 March 2023 Date of Publication of Reasons: 18 April 2023
DELIVERED AT:	Brisbane
HEARING DATE:	24 March 2023
JUDGES:	Mullins P and Bond JA and Gotterson AJA
ORDERS:	Date of Orders: 24 March 2023 1. Application for leave to appeal granted. 2. Appeal allowed. 3. Set aside the sentences imposed and the orders made by the sentencing judge in the District Court at Beenleigh on 27 January 2023 and in lieu the Applicant is sentenced as follows for all counts: (a) The Applicant is released under the supervision of an authorised Corrective Services officer for a period of two years and he must comply with the requirements set out in s 93(1) of the *Penalties and Sentences Act 1992* (Qld) and report within two business days of his release from custody to an authorised Corrective Services officer at the Inala Probation and Parole Office, 141 Boundary Road, Oxley; (b) No convictions recorded.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the Applicant, who was a minor at the time of the offending, pleaded guilty to four counts of rape and five counts of indecent treatment of a child under 16 years of age who was under 12 years of age at the time of the offending – where the complainant was the Applicant’s younger sister – where the Applicant was sentenced to two years imprisonment on each count of rape and 12 months imprisonment for each count of indecent treatment, with all sentences to be served concurrently – where the sentences were to be suspended after five months for an operational period for two years – where the Schedule of Facts before the sentencing judge included details of uncharged offending by the Applicant – where the sentencing judge sentenced the Applicant for uncharged acts – whether a specific error was made by the sentencing judge – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9(4)(c) Youth Justice Act 1992 (Qld), s 140(1), s 144(3) Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, followed R v AAQ[2012] QCA 335, distinguished R v D [1996] 1 Qd R 363; [1995] QCA 329, cited R v L; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63; [1995] QCA 444, cited R v LAL [2019] 2 Qd R 115; [2018] QCA 179, cited R v OQ[2011] QCA 348, distinguished R v PGW (2002) 134 A Crim R 593; [2002] QCA 462, cited
COUNSEL:	S L Kissick for the applicant S J Muir for…