R v MAI - [2005] QCA 36

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 2003

DIVISION:

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 made

ORDER:

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, distinguished

COUNSEL:

A J Glynn SC for the applicant
R G Martin SC for the respondent

SOLICITORS:

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.…

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 MAI

Details

AGLC: R v MAI [2005] QCA 36
Case: [2005] QCA 36
Decision Date: 25 February 2005

CaseChat Overview and Summary

The case of R v MAI involved the appellant who was convicted following a trial for three counts of indecent dealing with his 15-year-old daughter. The appellant was sentenced to three years imprisonment on each count, to be served concurrently, despite the maximum penalty for each offence being 14 years. The incidents in question were deemed to be a single isolated event without the use of force or threats, and involved digital penetration. Notably, the appellant contacted the police a day after the incident on his daughter's behalf, and during a record of interview, he denied the allegations and showed no remorse.

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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CITATION:	R v MAI [2005] QCA 36
PARTIES:	R v MAI (applicant)
FILE NO/S:	CA No 257 of 2004 DC No 24 of 2003
DIVISION:	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 made
ORDER:	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, distinguished
COUNSEL:	A J Glynn SC for the applicant R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent