R v Kao; R v TAF - [2016] QCA 283

SUPREME COURT OF QUEENSLAND

CITATION:

R v KAO; R v TAF [2016] QCA 283

PARTIES:

In CA No 120 of 2016:
R
v
KAO
(appellant/applicant)

In CA No 121 of 2016:
R
v
TAF
(appellant/applicant)

FILE NO/S:

CA No 120 of 2016
CA No 121 of 2016
DC No 259 of 2015
DC No 81 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeals against Conviction & Sentence

ORIGINATING COURT:

District Court at Rockhampton – Date of Convictions: 19 April 2016; Date of Sentences: 20 April 2016

DELIVERED ON:

4 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

20 September 2016

JUDGES:

Fraser and Philip McMurdo JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In CA No 120 of 2016:

1.   The appeal against conviction is dismissed.

2.   Leave to appeal against the sentence is refused.

In CA No 121 of 2016:

1.   The appeal against conviction is dismissed.

2.   Leave to appeal against the sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO ALL THE EVIDENCE – where the appellants were each convicted of two counts of raping the complainant – where the complainant is the daughter of the female appellant – where the appellants were in a relationship – where, at the time of the offences, the complainant resided at the same address as the appellants – where the offences of rape occurred late on the evening of 30 April 2014 – where the complainant left that residence in August 2014 – where the complainant first told somebody of the incident in February 2015 – whether the verdict is unreasonable or insupportable having regard to all the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where each applicant was sentenced to three years on the first count of rape (digital penetration of the complainant) and seven years on the second count of rape (penile penetration) – where those sentences were ordered to be served concurrently with parole being in accordance with the statutory entitlements – where the male applicant was also ordered to serve activated suspended sentences of imprisonment, to be served cumulatively on his sentences of imprisonment for the rapes – where one applicant submits the sentences were excessive having regard to there being no proper evidence to support the conviction – where the other applicant submits the sentences were excessive having regard to all of the circumstances, including his past criminal history – whether the sentences imposed on either applicant were manifestly excessive

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v BBP[2009] QCA 114, cited
R v H[2003] QCA 147, cited
R v P[2001] QCA 25, cited
R v RAU[2015] QCA 217

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.

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Details

Case: [2016] QCA 283
Decision Date: 4 November 2016

CaseChat Overview and Summary

KAO and TAF appealed their convictions and sentences for the rape of KAO's 14-year-old daughter, who stayed at the residence where KAO and TAF were living. The appellants sought to appeal their convictions on the basis that the jury's verdict was unreasonable or insupportable having regard to all the evidence. The appellants also sought to appeal their sentences on the basis that they were manifestly excessive. The court examined the evidence presented at trial, including the complainant's testimony and the circumstances of the offences, to determine whether the verdict was unreasonable or insupportable. The court also considered the appellants' arguments regarding the severity of their sentences in light of the circumstances of the case and the appellants' criminal histories. The court concluded that the verdict was not unreasonable or insupportable, and that the sentences imposed were not manifestly excessive.

The primary legal issues in this case were whether the appellants' convictions for the rape of KAO's daughter were unreasonable or insupportable having regard to all the evidence, and whether the sentences imposed on the appellants were manifestly excessive. The court considered the evidence presented at trial, including the complainant's testimony and the circumstances of the offences, to determine whether the jury's verdict was supported by the evidence. The court also considered the appellants' arguments regarding the severity of their sentences in light of the circumstances of the case and the appellants' criminal histories. The court concluded that the verdict was not unreasonable or insupportable, and that the sentences imposed were not manifestly excessive.

The court found that the evidence presented at trial was sufficient to support the jury's verdict that the appellants were guilty of raping KAO's daughter. The court noted that the complainant's testimony was clear and consistent, and that the circumstances of the offences were such that the jury could reasonably have concluded that the appellants were guilty beyond a reasonable doubt. The court also found that the sentences imposed on the appellants were appropriate in light of the seriousness of the offences and the appellants' criminal histories. The court noted that the appellants had previous convictions for other serious offences, and that the sentences imposed reflected the gravity of the current offences.

The appeal against conviction was dismissed, and leave to appeal against the sentence was refused. The appellants' convictions for the rape of KAO's daughter were upheld, and the sentences imposed on the appellants were affirmed.

Orders

Orders of the court

In CA No 120 of 2016:

1. The appeal against conviction is dismissed.

2. Leave to appeal against the sentence is refused.

In CA No 121 of 2016:

1. The appeal against conviction is dismissed.

2. Leave to appeal against the sentence is refused.

Background

Background to the litigation

KAO and TAF also seek leave to appeal their sentences. The only ground for those appeals is that the sentences are manifestly excessive in all the circumstances.Background The offences of rape occurred during one incident late on the evening of 30 April 2014. Both offences concerned the same female complainant. She is KAO’s natural daughter. The complainant was aged 14 years at the time of the offences. KAO was aged 34 years and TAF 22 years. KAO and TAF were in a relationship and residing at a residence in Rockhampton with TAF’s parents and sister.Evidence The complainant was born on 1 May 1999. Prior to Christmas 2013, she was residing at Noosa with her aunty. At Christmas time that year, the complainant travelled to Rockhampton to visit her siblings. She stayed at the residence at which KAO and TAF were residing at the time of the offences. She remained in Rockhampton until August 2014. The complainant said KAO would not send her back to her aunty in Noosa. The complainant said when she first came down at Christmas time, she shared a room with her siblings. Soon after arriving, the living arrangements changed and she commenced sharing a bedroom with KAO and TAF.[1] Those sleeping arrangements continued after the incident, up until she left in August 2014.[1]AB173/45. At the time of the offences the bedroom the complainant was sharing with KAO and TAF contained two beds. KAO and TAF slept in a large bed. The complainant slept in a smaller bed on one side of the bedroom. The night of the incident was the only time anything of a sexual nature happened to her in that house.[2][2]AB174/15. On 30 April 2014, the night before her 15th birthday, the complainant watched television in the lounge room with KAO, TAF and TAF’s mother and father. It was a school night. The complainant was wearing a pair of shorts and top. She also had on a bra and underpants. At about 9.30 pm, KAO told the complainant to go to bed. The complainant lay down on the single bed in the room she was sharing with KAO and TAF. The complainant believed she fell asleep by 10 o’clock. The complainant said KAO woke her around 11.30 pm. KAO said it was almost her birthday. KAO said “come down here, I want to know what you want for your birthday”. The complainant left her bed and lay on KAO and TAF’s bed. She told KAO she wanted a telephone for her birthday. Initially, the complainant lay on one side of the bed, with KAO beside her and TAF on the other side of KAO. KAO told her to move to her other side. When the complainant moved to that position, TAF lent over and kissed the complainant on the side of the face. At that point, KAO whispered in the complainant’s ear “TAF wants to fuck you”. KAO and TAF then pulled down her pants and underpants. The complainant was kicking her legs and pushing away. The complainant said no. The complainant said KAO held her down by her arms and belly. KAO had her arm over the complainant’s body and was pressing her weight on her to keep her pinned to the mattress. Whilst doing so, KAO and TAF pulled down her pants and underpants. KAO grabbed her by one arm and used the other arm over to pull down her pants with TAF. The complainant could not use her arms to push away as her arms were underneath KAO’s arms.

Evidence

Evidence Before The Court

The offences of rape occurred during one incident late on the evening of 30 April 2014. Both offences concerned the same female complainant. She is KAO’s natural daughter. The complainant was aged 14 years at the time of the offences. KAO was aged 34 years and TAF 22 years. KAO and TAF were in a relationship and residing at a residence in Rockhampton with TAF’s parents and sister.Evidence The complainant was born on 1 May 1999. Prior to Christmas 2013, she was residing at Noosa with her aunty. At Christmas time that year, the complainant travelled to Rockhampton to visit her siblings. She stayed at the residence at which KAO and TAF were residing at the time of the offences. She remained in Rockhampton until August 2014. The complainant said KAO would not send her back to her aunty in Noosa. The complainant said when she first came down at Christmas time, she shared a room with her siblings. Soon after arriving, the living arrangements changed and she commenced sharing a bedroom with KAO and TAF.[1] Those sleeping arrangements continued after the incident, up until she left in August 2014.[1]AB173/45. At the time of the offences the bedroom the complainant was sharing with KAO and TAF contained two beds. KAO and TAF slept in a large bed. The complainant slept in a smaller bed on one side of the bedroom. The night of the incident was the only time anything of a sexual nature happened to her in that house.[2][2]AB174/15. On 30 April 2014, the night before her 15th birthday, the complainant watched television in the lounge room with KAO, TAF and TAF’s mother and father. It was a school night. The complainant was wearing a pair of shorts and top. She also had on a bra and underpants. At about 9.30 pm, KAO told the complainant to go to bed. The complainant lay down on the single bed in the room she was sharing with KAO and TAF. The complainant believed she fell asleep by 10 o’clock. The complainant said KAO woke her around 11.30 pm. KAO said it was almost her birthday. KAO said “come down here, I want to know what you want for your birthday”. The complainant left her bed and lay on KAO and TAF’s bed. She told KAO she wanted a telephone for her birthday. Initially, the complainant lay on one side of the bed, with KAO beside her and TAF on the other side of KAO. KAO told her to move to her other side. When the complainant moved to that position, TAF lent over and kissed the complainant on the side of the face. At that point, KAO whispered in the complainant’s ear “TAF wants to fuck you”. KAO and TAF then pulled down her pants and underpants. The complainant was kicking her legs and pushing away. The complainant said no. The complainant said KAO held her down by her arms and belly. KAO had her arm over the complainant’s body and was pressing her weight on her to keep her pinned to the mattress. Whilst doing so, KAO and TAF pulled down her pants and underpants. KAO grabbed her by one arm and used the other arm over to pull down her pants with TAF. The complainant could not use her arms to push away as her arms were underneath KAO’s arms.

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 KAO; R v TAF [2016] QCA 283
PARTIES:	In CA No 120 of 2016: R v KAO (appellant/applicant) In CA No 121 of 2016: R v TAF (appellant/applicant)
FILE NO/S:	CA No 120 of 2016 CA No 121 of 2016 DC No 259 of 2015 DC No 81 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeals against Conviction & Sentence
ORIGINATING COURT:	District Court at Rockhampton – Date of Convictions: 19 April 2016; Date of Sentences: 20 April 2016
DELIVERED ON:	4 November 2016
DELIVERED AT:	Brisbane
HEARING DATE:	20 September 2016
JUDGES:	Fraser and Philip McMurdo JJA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	In CA No 120 of 2016: 1. The appeal against conviction is dismissed. 2. Leave to appeal against the sentence is refused. In CA No 121 of 2016: 1. The appeal against conviction is dismissed. 2. Leave to appeal against the sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO ALL THE EVIDENCE – where the appellants were each convicted of two counts of raping the complainant – where the complainant is the daughter of the female appellant – where the appellants were in a relationship – where, at the time of the offences, the complainant resided at the same address as the appellants – where the offences of rape occurred late on the evening of 30 April 2014 – where the complainant left that residence in August 2014 – where the complainant first told somebody of the incident in February 2015 – whether the verdict is unreasonable or insupportable having regard to all the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where each applicant was sentenced to three years on the first count of rape (digital penetration of the complainant) and seven years on the second count of rape (penile penetration) – where those sentences were ordered to be served concurrently with parole being in accordance with the statutory entitlements – where the male applicant was also ordered to serve activated suspended sentences of imprisonment, to be served cumulatively on his sentences of imprisonment for the rapes – where one applicant submits the sentences were excessive having regard to there being no proper evidence to support the conviction – where the other applicant submits the sentences were excessive having regard to all of the circumstances, including his past criminal history – whether the sentences imposed on either applicant were manifestly excessive M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v BBP[2009] QCA 114, cited R v H[2003] QCA 147, cited R v P[2001] QCA 25, cited R v RAU[2015] QCA 217