R v Kaisara

[2022] QDC 270

DISTRICT COURT OF QUEENSLAND

CITATION:	R v Kaisara [2022] QDC 270
PARTIES:	THE KING (Applicant)
v
NICKLAUS KAISARA (Respondent)
FILE NO/S:	BD 2380/2021
DIVISION:	Criminal
DELIVERED ON:	14 December 2022
DELIVERED AT:	Brisbane
HEARING DATE:	25 November 2022
JUDGE:	Barlow KC, DCJ
ORDERS:	The application be dismissed.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE - the respondent was found guilty at trial of four counts of carnal knowledge and two counts of rape – the respondent is a non-citizen whose visa must be cancelled upon his conviction – the Court sentenced the respondent to imprisonment for five years, suspended after serving two years and ten months - the applicant seeks to reopen the sentence on the basis that the sentencing judge had decided it on a clear factual error of substance - whether the sentence was decided on a clear factual error of substance sufficient to invoke the reopening of sentence – whether the respondent’s circumstances, including that he would go from prison to immigration detention and then be deported, so that he would not serve any effective parole in Queensland, were proper matters to take into account in sentencing
Penalties and Sentences Act 1992, s 188(1)(c) Returning Offenders (Management and Information) Act 2015 (NZ)
R v Abdi (2016) 263 A Crim R 38, applied R v Cassar; ex parte Attorney-General (Queensland) [2002] 1 Qd R 386, applied R v Davis (1999) 109 A Crim R 314, applied
R v Norris, ex parte Attorney-General [2018] 3 Qd R 420, applied R v UE [2016] QCA 58, applied
COUNSEL:	C Wilkins for the Crown K Hillard, for the Respondent
SOLICITORS:	The Office of the Director of Public Prosecutions Brisbane Criminal Lawyers

Contents

Introduction ...........................................................................................................................2
The defendant’s background .................................................................................................2
Submissions on sentence .......................................................................................................3
Sentencing remarks ...............................................................................................................3
Principles ...............................................................................................................................4
Evidence on reopening ..........................................................................................................5
Was there a factual error? ......................................................................................................6

Was the error one “of substance”? ........................................................................................7

Does the error call for a material alteration of the sentence? ............................................7

Consideration .....................................................................................................................8

Conclusions .........................................................................................................................10

Introduction

1. On 1 December 2021, the defendant was convicted after a trial before a jury of four counts of carnal knowledge of a child under 16 and two counts of rape. On 21 October 2022, I sentenced him to five years’ imprisonment on one count of rape and to lesser terms for the other offences. I ordered that his sentence be suspended for an operational period of five years after serving two years and 10 months.

2. The Crown has now applied to re-open the sentence on the ground that I decided the sentence based on a clear factual error of substance.[1] The asserted error, in essence, was that I accepted a submission on behalf of the defendant to the effect that, if he were given a parole eligibility date instead of having the sentence suspended, he would never be granted parole. Counsel for the defendant accepts that I made that error…