R v Misi; Ex parte - [2023] QCA 34

SUPREME COURT OF QUEENSLAND

CITATION:

R v Misi; Ex parte Attorney-General (Qld) [2023] QCA 34

PARTIES:

R
v
MISI, Samuel Gaulai
(respondent)
EX PARTE
ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 8 of 2022
DC No 214 of 2021
DC No 215 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:

District Court at Mackay – Date of Sentence: 30 November 2021 (Dick SC DCJ)

DELIVERED ON:

10 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

17 November 2022

JUDGES:

Mullins P, Dalton and Flanagan JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to taking a child under 12 for immoral purposes (count 1), two counts of indecent treatment of a child under 16, under 12 (counts 2 and 4) and rape (count 3) – where the respondent was sentenced to seven years’ imprisonment for count 1 with a serious violent offence declaration and lesser concurrent sentences for each of the other counts – where the Attorney-General appeals against the sentence – where the respondent had prior convictions for sexual offences against children and was in breach of his reporting obligations under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 – where for counts 1 and 3 the respondent waited until a nine year old girl was alone when she was playing hide and seek with friends at a caravan park where she lived, told her to follow him behind a building and digitally penetrated her – whether the sentence imposed is manifestly inadequate

Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 50
Criminal Code (Qld), s 219, s 349

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
R v AAD[2008] QCA 4, cited
R v Choomwantha[2014] QCA 115, considered
R v D[2003] QCA 88, considered
R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80; [2020] QCA 58, considered
R v Green; Ex parte Attorney-General (Qld)[2021] QCA 153, cited
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited
R v Stoian[2012] QCA 41, considered

COUNSEL:

C W Heaton KC for the appellant
M J Copley KC, with M J Jackson, for the respondent

SOLICITORS:

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

THE COURT: On 16 September 2021, the respondent pleaded guilty to taking a child under 12 for immoral purposes (count 1), two counts of indecent treatment of a child under 16, under 12 (counts 2 and 4) and rape (count 3). He also pleaded guilty at the same time to five counts on a second indictment of failure to comply with reporting obligations pursuant to the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) (the Act). On 30 November 2021,…

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 Misi; Ex parte

Details

AGLC: R v Misi; Ex parte [2023] QCA 34
Case: [2023] QCA 34
Decision Date: 10 March 2023

CaseChat Overview and Summary

The respondent pleaded guilty to various serious sexual offences against children, including taking a child under 12 for immoral purposes, two counts of indecent treatment of a child under 16 and under 12, and rape. The respondent was sentenced to seven years’ imprisonment for the first count with a declaration of a serious violent offence, and lesser concurrent sentences for the other counts. The Attorney-General appealed against the sentence, arguing that it was manifestly inadequate.

The court was required to determine whether the sentence imposed was manifestly inadequate. The court considered the seriousness of the offences, the respondent's criminal history, and the need for the sentence to have a general and specific deterrent effect. The court also considered the need for parity in sentencing for similar offences.

The court found that the sentence was not manifestly inadequate. The court noted that the respondent had a history of sexual offences against children and had breached his reporting obligations under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004. The court also considered the impact of the offences on the victims and the need for the sentence to have a general and specific deterrent effect. The court found that the sentence was proportionate to the seriousness of the offences and the need for deterrence.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Misi; Ex parte Attorney-General (Qld) [2023] QCA 34
PARTIES:	R v MISI, Samuel Gaulai (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 8 of 2022 DC No 214 of 2021 DC No 215 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT:	District Court at Mackay – Date of Sentence: 30 November 2021 (Dick SC DCJ)
DELIVERED ON:	10 March 2023
DELIVERED AT:	Brisbane
HEARING DATE:	17 November 2022
JUDGES:	Mullins P, Dalton and Flanagan JJA
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to taking a child under 12 for immoral purposes (count 1), two counts of indecent treatment of a child under 16, under 12 (counts 2 and 4) and rape (count 3) – where the respondent was sentenced to seven years’ imprisonment for count 1 with a serious violent offence declaration and lesser concurrent sentences for each of the other counts – where the Attorney-General appeals against the sentence – where the respondent had prior convictions for sexual offences against children and was in breach of his reporting obligations under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 – where for counts 1 and 3 the respondent waited until a nine year old girl was alone when she was playing hide and seek with friends at a caravan park where she lived, told her to follow him behind a building and digitally penetrated her – whether the sentence imposed is manifestly inadequate Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 50 Criminal Code (Qld), s 219, s 349 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited R v AAD[2008] QCA 4, cited R v Choomwantha[2014] QCA 115, considered R v D[2003] QCA 88, considered R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80; [2020] QCA 58, considered R v Green; Ex parte Attorney-General (Qld)[2021] QCA 153, cited R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited R v Stoian[2012] QCA 41, considered
COUNSEL:	C W Heaton KC for the appellant M J Copley KC, with M J Jackson, for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent