R v LAE - [2013] QCA 189

SUPREME COURT OF QUEENSLAND

CITATION:

R v LAE [2013] QCA 189

PARTIES:

R
v
LAE
(applicant)

FILE NO/S:

CA No 147 of 2012
DC No 379 of 2011
DC No 380 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

19 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

28 February 2013

JUDGE:

Muir and Fraser JJA and Martin J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where three sets of offences were committed by the applicant over a period of 14 years in Queensland and in New South Wales against his daughters – where the applicant was given a head sentence of 10 years for the Queensland offences – where at the time of the sentence in Queensland the applicant was serving a five year term of imprisonment for offences committed in New South Wales – whether the sentencing Judge failed to correctly consider the totality principle

Penalties and Sentences Act 1992 (Qld), s 9

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, considered
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, considered
R v Gordon (1994) 71 A Crim R 459, considered
R v Hunter (2006) 14 VR 336; [2006] VSCA 129, considered
R v SAG (2004) 147 A Crim R 301; [2004] QCA 286, cited
R v Todd [1982] 2 NSWLR 517, considered

COUNSEL:

L Reece for the applicant
B J Merrin for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree that the application for leave to appeal should be refused for the reasons given by Martin J.

FRASER JA: I have had the advantage of reading the reasons for judgment of Martin J. I agree with those reasons and with the order proposed by his Honour.

MARTIN J: The applicant seeks leave to appeal against sentences imposed upon him as a result of convictions entered on 8 May 2012. The offences concerned his two daughters.

The charges and the sentences were as follows:

Indictment 379 of 2011 (complainant MGK)

Count Date of offence Nature of offences Maximum Penalty

1 Between 31 December 1990 and 1 January 1996 Maintaining a sexual relationship with a child, with circumstances of aggravation (under 12 years, lineal descendant, with attempted rape) 10 years imprisonment Life imprisonment

2 Between 22 June 1991 and 1 January 1993 Attempted rape 4 years imprisonment 14 years imprisonment

3 Between 22 June 1991 and 1 January 1993 Indecent treatment of a child under 16, with circumstances of aggravation (under 12, lineal descendant) 2 years imprisonment 10 years imprisonment

4 Between 22 June 1992 and 1 January 1994 Indecent treatment of a child under…

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 LAE

Details

AGLC: R v LAE [2013] QCA 189
Case: [2013] QCA 189
Decision Date: 19 July 2013

CaseChat Overview and Summary

The applicant appealed against his sentence, arguing that it was manifestly excessive. The offences were committed over a 14-year period against his daughters in both Queensland and New South Wales. The sentencing judge in Queensland imposed a head sentence of 10 years for the Queensland offences, while the applicant was concurrently serving a five-year term for New South Wales offences at the time of sentencing. The central issue for the court was whether the sentencing judge had failed to appropriately consider the principle of totality, which mandates that the cumulative effect of concurrent sentences should be proportionate to the overall gravity of the criminal conduct.

The court examined the principle of totality and the sentencing judge's consideration of it. It noted that the judge had indeed considered the totality of the applicant’s offending but determined that the sentence was proportionate given the severity and nature of the crimes. The court emphasised that the sentencing judge had meticulously weighed all relevant factors, including the cumulative impact of the sentences and the need for deterrence and denunciation. The appellate court concluded that there was no error in the application of the totality principle and that the sentence was not manifestly excessive.

Accordingly, the application for appeal against sentence was dismissed. The court held that the sentence was appropriate and did not require any alteration. The head sentence of 10 years for the Queensland offences, running concurrently with the five-year term for the New South Wales offences, was affirmed as correct. The court did not find any basis to interfere with the sentencing decision.

Orders

Orders of the court

Application refused.

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.

CITATION:	R v LAE [2013] QCA 189
PARTIES:	R v LAE (applicant)
FILE NO/S:	CA No 147 of 2012 DC No 379 of 2011 DC No 380 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	19 July 2013
DELIVERED AT:	Brisbane
HEARING DATE:	28 February 2013
JUDGE:	Muir and Fraser JJA and Martin J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where three sets of offences were committed by the applicant over a period of 14 years in Queensland and in New South Wales against his daughters – where the applicant was given a head sentence of 10 years for the Queensland offences – where at the time of the sentence in Queensland the applicant was serving a five year term of imprisonment for offences committed in New South Wales – whether the sentencing Judge failed to correctly consider the totality principle Penalties and Sentences Act 1992 (Qld), s 9 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, considered Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, considered R v Gordon (1994) 71 A Crim R 459, considered R v Hunter (2006) 14 VR 336; [2006] VSCA 129, considered R v SAG (2004) 147 A Crim R 301; [2004] QCA 286, cited R v Todd [1982] 2 NSWLR 517, considered
COUNSEL:	L Reece for the applicant B J Merrin for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

Count	Date of offence	Nature of offences	Maximum Penalty
1	Between 31 December 1990 and 1 January 1996	Maintaining a sexual relationship with a child, with circumstances of aggravation (under 12 years, lineal descendant, with attempted rape)	10 years imprisonment	Life imprisonment
2	Between 22 June 1991 and 1 January 1993	Attempted rape	4 years imprisonment	14 years imprisonment
3	Between 22 June 1991 and 1 January 1993	Indecent treatment of a child under 16, with circumstances of aggravation (under 12, lineal descendant)	2 years imprisonment	10 years imprisonment
4	Between 22 June 1992 and 1 January 1994	Indecent treatment of a child under…