R v JAF

Case [2022] QCA 105

SUPREME COURT OF QUEENSLAND

CITATION:

R v JAF [2022] QCA 105

PARTIES:

R
v
JAF
(applicant)

FILE NO/S:

CA No 117 of 2021
DC No 97 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Rockhampton – Date of Sentence: 30 April 2021 (Clarke DCJ)

DELIVERED ON:

14 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

11 May 2022

JUDGES:

McMurdo JA and Boddice and Crow JJ

ORDER:

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 17 counts of attempt to procure rape, nine counts of distributing intimate images and three counts of supplying a dangerous drug – where the applicant was sentenced to four years for each count of attempt to procure rape, nine months for each count of distributing intimate images and three months imprisonment for each count of supplying dangerous drugs – where those sentences were to be served concurrently – where the applicant seeks leave to appeal against the sentences imposed for each count of attempt to procure rape – where the conduct involved a significant breach of trust in a domestic violence context – whether the sentencing judge appropriately balanced aggravating and mitigating features – whether the sentence was manifestly excessive

Penalties and Sentences Act1992 (Qld), s 9

R v Gill, Ex parte Attorney-General (Qld) (2004) 146 A Crim R 12; [2004] QCA 139, cited
R v Goodwin; Ex parte Attorney-General (Qld) (2014) 247 A Crim R 582; [2014] QCA 345, cited
R v Hughes[2000] QCA 16, cited
R v J[2002] QCA 48, cited
R v Kanaveilomani [1995] 2 Qd R 642; [1994] QCA 193, cited
R v McNamara[1996] QCA 433, cited
R v Parks; Ex parte Attorney-General (Qld) (2002) 136 A Crim R 141; [2002] QCA 533, cited
R v Savins[1996] QCA 513, cited

COUNSEL:

K M Hillard for the applicant (pro bono)
P J McCarthy QC for the respondent

SOLICITORS:

Ashworth Lawyers for the applicant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

  1. McMURDO JA:  I agree with Boddice J.

  2. BODDICE J:  On 30 April 2021, the applicant pleaded guilty to 17 counts of attempt to procure rape, nine counts of distributing intimate images and three counts of supplying a dangerous drug.  All but the supplying a dangerous drug counts were domestic violence offences.

  3. The applicant was sentenced to four years imprisonment for each count of attempt to procure rape, nine months imprisonment for each count of distributing intimate images and three months imprisonment for each count of supplying a dangerous drug.

  4. All sentences were to be served concurrently.  Three days in pre-sentence custody was declared as time served for those sentences.  A parole eligibility date was set at 27 August 2022, some 16 months from the date the applicant went into custody.

  5. The applicant seeks leave to appeal the sentences…

Continue reading R v JAF

Sign in free to access the full text

Details
AGLC
R v JAF [2022] QCA 105
Case
[2022] QCA 105
Decision Date

CaseChat Overview and Summary

In R v JAF, the applicant sought leave to appeal against the sentences imposed for each count of attempt to procure rape. The applicant was convicted and sentenced to four years imprisonment for each count of attempt to procure rape, nine months for each count of distributing intimate images, and three months imprisonment for each count of supplying a dangerous drug, with all sentences to be served concurrently. The applicant argued that the sentence was manifestly excessive and that the sentencing judge failed to appropriately consider several mitigating factors.

The legal issues before the court were whether the sentence was manifestly excessive and whether the sentencing judge had appropriately balanced the aggravating and mitigating features of the case. The court considered the nature and extent of the offending, the applicant's history of drug use and addiction, the break in the offending period, the applicant's remorse, and the impact of the offences on the complainant and her family. The court also evaluated whether the sentencing judge had correctly applied relevant sentencing principles.

The court found that the sentence was not manifestly excessive, as the offending was protracted over several months and involved a significant breach of trust in a domestic violence context. The court acknowledged the applicant's mitigating factors but held that they did not outweigh the severity of the crimes. The court concluded that the sentencing judge appropriately balanced the aggravating and mitigating features and exercised the sentencing discretion in accordance with relevant principles.

ORDERS:
Leave to appeal refused.

Orders

Orders of the court

Leave to appeal refused.

Background

Background to the litigation

The applicant seeks leave to appeal the sentences of imprisonment imposed for each count of attempt to procure rape. Should leave be granted, the applicant relies on the following grounds:“1.The sentence imposed was manifestly excessive in all the circumstances.2.The sentencing judge erred in failing to have regard to:a.The principles set out in R v Parks.b.The comparable cases relied on at sentence as being applicable wrongly distinguishing them as not applying.c.The Applicant’s drug use and addiction in mitigation of sentence.d.The Applicant prospects of rehabilitation.e.The Applicant’s plea of guilty to counts where the offence pleaded was not strong one.f.The break in the period of the offending.g.That the Applicant desisted the conduct before the complainant was aware of same.h.The Applicant’s remorse.i.The Applicant plea of guilty to the circumstance of aggravation of being a domestic violence offence when not readily established on the offence as pleaded.j.The complainant’s inability to work was not attributed solely to the Applicant she having had period of inability to work prior to the offending.k.The presentence custody period to be declared failed to include the time that the Applicant was held prior to his release on bail.3.The sentencing judge erred in taking into account that the children were at risk of harm.4.The sentencing judge made an error of fact in:a.Considering the conduct was sustained when there was break in same.b.The presentence custody period to be declared failed to included the Applicant time held prior to his release on bail.c.That the complainants inability to work was attributed to the Applicant.”Background The applicant was born in 1984. He was aged between 35 and 37 years at the time of the commission of the offences. The applicant had a past criminal history. It contained entries for drug and other offending. The applicant had no prior convictions for sexual offences, or for offences involving violence. Each count of attempt to procure rape related to the same female complainant. The applicant had been in a relationship with that complainant during the period of the offending, although for a time their relationship had broken down.Offences During the period between May to September 2019, the applicant contacted 11 males[1] via messaging apps in an attempt to arrange for that male to come to the house to have sex with the complainant. On each occasion, the applicant was aware the complainant had not, and would not, consent to the proposed arrangement.[1]The Statement of Facts nominates 13 separate contacts. Each attempt involved specific reference to sexual acts. On many occasions, there was reference to tying the complainant up and a continuation of the act notwithstanding resistance by the complainant. On one occasion, there was specific reference to the use of violence on the complainant. On several occasions, the applicant provided details of the complainant’s street address. On one occasion, he provided the full address. One male advised the applicant he had attended the complainant’s house and masturbated whilst he spied on the complainant. The applicant’s response was to state that the male should have “gone in, covered the complainant’s mouth and had sex with her”.

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 respondent further submits there was no error in the exercise of the sentencing discretion. The sentencing judge properly recognised that the applicant’s use of illicit drugs provided context but did not excuse the offending. Further, a break in the relationship during the offending period did not detract from the offending properly being described as protracted over a period of months. The fact that the applicant attempted to procure strangers to enter the complainant’s family home also raised the potential for the complainant’s children to be at risk and there was no proper basis to conclude there had been a voluntary desistance from the offending behaviour. The sentencing judge also properly had regard to the impact of the complainant’s fear on her ability to work; to the applicant’s initial response to the complainant’s accusations and to the fact that the offences were domestic violence offences.Consideration An effective head sentence of four years imprisonment for multiple counts of attempting to procure rape, committed over a protracted period, in the context of multiple counts of distributing intimate images of the same female complainant, was not manifestly excessive. The applicant was a mature man who engaged in abhorrent behaviour over a period of months. His criminality involved contacting strangers in an attempt to procure them to engage in sexual acts with his then partner, knowing she would not consent to those acts. The applicant encouraged persistence in the sexual activity, notwithstanding resistance. He also encouraged the use of restraints and, on one occasion, violence. The applicant sent explicit images of the complainant to these men. Such conduct was properly described by the sentencing judge as involving an appalling breach of trust. It impacted adversely on the complainant. It also placed her and others in her household at risk. There was the potential that one or more of these men may carry out the applicant’s request. Some of the applicant’s messaging included an acknowledgement that children may be in the house at the time the male stranger attended the complainant’s residence. The sentencing judge correctly acknowledged that there were no comparable yardsticks. The authorities relied upon by the applicant are materially different, both as to the offence and in involving single incidents. They were also dated and did not concern domestic violence offences. The sentencing judge properly recognised that an exercise of the sentencing discretion, therefore, was to be undertaken having regard to relevant sentencing principles. The sentencing judge did so, balancing the aggravating and mitigating features. Such an approach was consistent with authority.[3][3]R v Goodwin; Ex parte Attorney-General (Qld) [2014] QCA 345 at [37]. A consideration of the applicant’s criminality, including the multiplicity of contacts with multiple male strangers and the nature of the suggested sexual acts with the use of restraints and violence to overcome any resistance, was such that notwithstanding the applicant’s pleas of guilty and other mitigating factors, an effective head sentence of four years imprisonment was neither plainly unjust nor unreasonable.