SUPREME COURT OF QUEENSLAND
CITATION:
R v KAK [2013] QCA 310
PARTIES:
R
v
KAK
(applicant)FILE NO/S:
CA No 116 of 2013
SC No 43 of 2013DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
18 October 2013
DELIVERED AT:
Brisbane
HEARING DATE:
2 August 2013
JUDGES:
Holmes, Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. The application for leave to appeal against sentence be granted.
2. The appeal be allowed.
3. The sentence imposed for count 1 be set aside and a sentence of seven years imprisonment with a non‑parole period of three years and six months from 16 April 2013 be substituted therefor.
4. The sentence imposed for count 2 be set aside and a sentence of seven years imprisonment with a parole eligibility date fixed at three years and six months from 16 April 2013 be substituted therefor.
5. A parole eligibility date fixed at three years and six months from 16 April 2013 be substituted for the parole eligibility date of four years fixed in respect of counts 5, 8, 10 and 11.
6. The terms of imprisonment imposed on 16 April 2013 in respect of counts 3 to 20 inclusive are otherwise confirmed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to one count of trafficking in a child (count 1); one count of procuring a young person to engage in prostitution (count 2); four counts of maintaining a sexual relationship with a child; and 14 counts of procuring a child to commit an indecent act, with the aggravating circumstance that the child was the applicant’s lineal descendent – where the applicant was sentenced to nine years imprisonment for each of counts 1 and 2 and lesser sentences in respect of counts 3 to 20 inclusive – where the sentencing judge imposed a non-parole period of four years in respect of count 1 and fixed a parole eligibility date after serving four years in respect of the remaining counts – where the applicant operated a Thai massage business and provided additional sexual services to customers on request – where the applicant brought her daughter, the complainant, to Australia for the purpose of use in the applicant’s prostitution – where the applicant “corrupted and sexualised the complainant” and required the complainant to provide sexual services to clients – where the applicant had no prior criminal history and had a low risk of recidivism – where the applicant expressed remorse, entered early pleas of guilty and cooperated extensively with authorities – where the applicant contends that the sentencing judge erred in applying s 9, s 13 and s 13A of the Penalties and Sentences Act 1992 (Qld) and s 21E of the Crimes Act 1914 (Cth) – where the applicant submits that the sentencing…
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- AGLC
- R v KAK [2013] QCA 310
- Case
- [2013] QCA 310
- Decision Date
CaseChat Overview and Summary
The court found that the sentencing judge erred in applying the relevant legislation and in not considering the indicial nature of count 1 in relation to the overall culpability for the offending, which was encapsulated in count 2. The court noted that the applicant had no prior criminal history, a low risk of recidivism, expressed remorse, and cooperated extensively with authorities. The court found that the sentencing discretion miscarried due to the judge's errors in applying the law and not considering the indicial nature of count 1. The sentences and parole orders were deemed manifestly excessive, leading to the appeal being allowed.
The court granted the application for leave to appeal against the sentence and allowed the appeal. The sentence for count 1 was set aside, and a sentence of seven years imprisonment with a non-parole period of three years and six months was substituted. Similarly, the sentence for count 2 was set aside, and a sentence of seven years imprisonment with a parole eligibility date fixed at three years and six months was substituted. The parole eligibility date for counts 5, 8, 10, and 11 was also substituted to three years and six months. The terms of imprisonment for counts 3 to 20 inclusive were otherwise confirmed. The court's decision recognised the errors in the original sentencing and adjusted the sentences to better reflect the applicant's circumstances and culpability.
Orders
Orders of the court
1. The application for leave to appeal against sentence be granted.
2. The appeal be allowed.
3. The sentence imposed for count 1 be set aside and a sentence of seven years imprisonment with a non‑parole period of three years and six months from 16 April 2013 be substituted therefor.
4. The sentence imposed for count 2 be set aside and a sentence of seven years imprisonment with a parole eligibility date fixed at three years and six months from 16 April 2013 be substituted therefor.
5. A parole eligibility date fixed at three years and six months from 16 April 2013 be substituted for the parole eligibility date of four years fixed in respect of counts 5, 8, 10 and 11.
6. The terms of imprisonment imposed on 16 April 2013 in respect of counts 3 to 20 inclusive are otherwise confirmed.
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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