SUPREME COURT OF QUEENSLAND
CITATION:
R v MAI [2005] QCA 36
PARTIES:
R
v
MAI
(applicant)FILE NO/S:
CA No 257 of 2004
DC No 24 of 2003DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Southport
DELIVERED ON:
25 February 2005
DELIVERED AT:
Brisbane
HEARING DATE:
8 February 2005
JUDGES:
McMurdo P, Williams JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Application for leave to appeal against sentence refused
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – PARTICULAR OFFENCES – SEXUAL OFFENCES – where applicant convicted after trial of three counts of indecent dealing with his 15 year old daughter and sentenced to three years imprisonment on each count concurrently – where maximum penalty for offence 14 years – where offences a single isolated incident without force or threats – where digital penetration – where applicant phoned police a day after the incident on complainant's behalf – where applicant denied complaints in record of interview and showed no remorse – whether sentence manifestly excessive
R v Griinke [1992] 1 Qd R 196, cited
R v Hamstead [1999] QCA 33; CA No 433 of 1998, 23 February 1999, followed
R v K [2003] QCA 521; CA No 290 of 2003, 20 November 2003, distinguished
R v M [2003] QCA 556; CA No 359 of 2003, 11 December 2003, distinguishedCOUNSEL:
A J Glynn SC for the applicant
R G Martin SC for the respondentSOLICITORS:
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
McMURDO P: The applicant was convicted on 14 July 2004 after a two day trial of three counts of indecently dealing with his 15 year old daughter whilst she was in his care on 6 April 2002. He was sentenced to three years imprisonment concurrently on each count. He was acquitted of four other similar counts. The maximum penalty on each count was 14 years imprisonment.
The applicant's counsel submits that the sentence was manifestly excessive in that it was outside the proper range and that the learned sentencing judge placed too much weight on the seriousness and prevalence of the offence and the need for general deterrence and gave insufficient weight to matters of mitigation.
The complainant had lived with older relatives without contact with her father for many years until May 2001. In October that year she commenced to live with him and her adult step-sister and family. In February 2002 she shared an apartment with her father alone and this is where the offences were said to have occurred. The record shows he knew she was a troubled and vulnerable young person when she came to live with him.
The learned sentencing judge rightly treated the three offences as a single incident without physical force or articulated threats.…
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- R v MAI [2005] QCA 36
- Case
- [2005] QCA 36
- Decision Date
CaseChat Overview and Summary
The legal issues that the court had to address were primarily concerned with the severity of the sentence imposed on the appellant. Specifically, the court needed to determine if the sentence was manifestly excessive in light of the circumstances of the offence and the appellant's conduct both during and after the incident. The court had to consider whether the sentence imposed was proportionate to the gravity of the offence and whether any mitigating factors should have been considered.
In evaluating the sentence, the court took into account the nature of the offence, the lack of force or threats, and the fact that the appellant contacted the police on his daughter's behalf. However, the court also noted that the appellant denied the complaints during the record of interview and showed no remorse, which were significant factors in the court's decision. Ultimately, the court found that while the sentence was severe, it was not manifestly excessive and was within the appropriate range for the offence committed. Consequently, the application for leave to appeal against the sentence was refused.
Orders
Orders of the court
Application for leave to appeal against sentence refused
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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