R v MAN

[2005] QCA 413

SUPREME COURT OF QUEENSLAND

CITATION: 

R v MAN [2005] QCA 413

PARTIES: 

R v MAN

(applicant/appellant)

FILE NO/S: 

CA No 109 of 2005 DC No 496 of 2005

DIVISION: 

Court of Appeal

PROCEEDING: 

Sentence Application

ORIGINATING 
COURT: 

District Court at Brisbane

DELIVERED ON: 

11 November 2005

DELIVERED AT: 

Brisbane

HEARING DATE: 

2 November 2005

JUDGES: 

McMurdo P, Keane JA and Atkinson J
Judgment of the Court

ORDER: 

1.	Application for leave to appeal against sentence granted
2.	Appeal allowed
3.	Set aside the sentence imposed at first instance and instead impose a sentence of five years imprisonment with a recommendation for post-prison community based release after 18 months

CATCHWORDS: 

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – SEXUAL OFFENCES – applicant pleaded

guilty to ex officio indictment containing two counts of aggravated maintaining a sexual relationship with a child

under 16 years – sentenced to nine years imprisonment –

complainants twin girls aged between 12 and 15 at time of

offending – applicant aged between 19 and 22 at time of offending and 29 at sentence – applicant had been homeless

and moved into the house the complainants lived in with their mother, older brothers and sisters and some young adults

when aged 18 – complainants willing participants in offending – each complainant considered herself the

applicant's girlfriend and competed for the applicant's

attention – relationships carried out openly and with the

apparent consent of adults who had care of the complainants

– no violence or intimidation used by applicant to further

relationships – applicant fathered two children to each complainant – three of the children born while complainants aged under 16 – one child born outside offending period when complainant aged 18 – applicant has maintained a

healthy and responsible father-child relationship with all the

children whom he has also financially supported – applicant given legal custody of two of the children in 2003 – applicant at sentence had full-time custody of one of the children – co- operation with police and full admissions made – applicant

contends the relationships just developed and stated in his police interview "we were all just kids and we didn't really

think about it" – good work history – no like criminal history – evidence of rehabilitation – circumstances suggesting

applicant unlikely to reoffend – whether sentencing process affected by errors of fact – whether sentence manifestly

excessive

30 September 2005, cited
R v KAI [2002] QCA 378; CA No 201 of 2002,
24 September 2002, distinguished
R v Le [1995] QCA 479; [1996] 2 Qd R 516, cited

R v BAX [2005] QCA 365; CA No 162 of 2005, distinguished

COUNSEL: 

S T Courtney for applicant/appellant
R G Martin SC for respondent

SOLICITORS: 

Butler McDermott & Egan (Nambour) for the
applicant/appellant
Director of Public Prosecutions (Queensland) for the
respondent

1. THE…