R v NAF - [2023] QCA 197

SUPREME COURT OF QUEENSLAND

CITATION:

R v NAF [2023] QCA 197

PARTIES:

R
v
NAF
(applicant)

FILE NO/S:

CA No 274 of 2021
SC No 843 of 2021
SC No 841 of 2021
SC No 166 of 2021
SC No 1338 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)
Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 13 October 2021 (Wilson J)

DELIVERED ON:

29 September 2023

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2023

JUDGES:

Mullins P and Boddice JA and Cooper J

ORDERS:

1. The application for an extension of time within which to appeal against conviction be refused.

2. Leave to appeal against sentence be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – where the applicant pleaded guilty to one count of maintaining a sexual relationship with a child, in addition to 28 other sexual offences and 10 drug offences – where the applicant seeks an extension of time within which to appeal his conviction in respect of the maintaining count – where the applicant submits that had he had a clear knowledge of the duration of the maintaining count, he would not have entered a plea of guilty in respect of it – whether the applicant entered his plea of guilty to the maintaining count voluntarily and with full knowledge of the nature and extent of that count

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant received a head sentence of 15 years imprisonment on the maintaining count, and lesser concurrent periods of imprisonment on the remaining counts – where the sexual offending was committed against the applicant’s biological daughter between the ages of seven and 13 years – where the applicant entered early pleas of guilty – where the sentencing judge recorded the applicant’s treatment of the complainant was degrading and inhumane – where the sentencing judge recorded it was difficult to accept a contention that the applicant did not have a general interest in children sexually – where the applicant submits, inter alia, in respect of one occasion where the applicant gave the complainant wine before filming his sexual acts, the complainant was neither forced nor coerced into consuming the wine; that there was no physical violence or threats or verbal abuse during the episodes; that the recordings did not show any penile-anal or penile-vaginal penetration; and that the offending after the use of wine was not premeditated, but opportunistic in nature after the complainant became intoxicated – whether the sentencing judge overlooked, undervalued, misunderstood or over-estimated some salient feature of the evidence – whether, in all the circumstances, the sentence imposed was manifestly excessive

COUNSEL:

The applicant appeared on his own behalf
C M Cook for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MULLINS P: I agree…

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 NAF

Details

AGLC: R v NAF [2023] QCA 197
Case: [2023] QCA 197
Decision Date: 29 September 2023

CaseChat Overview and Summary

The case of R v NAF involved an applicant who pleaded guilty to one count of maintaining a sexual relationship with a child, in addition to 28 other sexual offences and 10 drug offences. The applicant sought an extension of time within which to appeal his conviction in respect of the maintaining count, arguing that had he had a clear knowledge of the duration of the maintaining count, he would not have entered a plea of guilty in respect of it. The applicant contended that he did not enter his plea voluntarily and with full knowledge of the nature and extent of that count. The applicant also appealed against the sentence imposed on the maintaining count, arguing that it was manifestly excessive.

The court was required to decide whether the applicant entered his plea of guilty to the maintaining count voluntarily and with full knowledge of the nature and extent of that count. The court was also required to determine whether the sentencing judge overlooked, undervalued, misunderstood or over-estimated some salient feature of the evidence, and whether the sentence imposed was manifestly excessive.

The court found that the applicant had entered his plea of guilty to the maintaining count voluntarily and with full knowledge of the nature and extent of that count. The court found that the applicant's conduct was escalating, despicable sexual offending against his own daughter, and that there was no merit in the applicant's contentions that the complainant was neither forced nor coerced into consuming the wine, that there was no physical violence or threats or verbal abuse during the episodes, that the video recordings did not show any penile-anal or penile-vaginal penetration, and that the offending after the use of wine was not premeditated, but was opportunistic in nature after the complainant became intoxicated. The court found that the sentence imposed fell within a sound exercise of the sentencing discretion, and that it was not manifestly excessive.

The application for an extension of time within which to appeal against conviction was refused. Leave to appeal against sentence was also refused.

Orders

Orders of the court

1. The application for an extension of time within which to appeal against conviction be refused.

2. Leave to appeal against sentence be 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

It was declared, pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), that 948 days spent in custody between 10 March 2019 and 12 October 2021, be deemed time already served under the sentence.Consideration The applicant submits the sentence was manifestly excessive because the sentencing judge overlooked, undervalued, misunderstood or over-estimated “some salient feature of the evidence”. It is also submitted the sentencing judge took into account irrelevant matters and adopted a wrong principle. Central to those submissions is a contention by the applicant that the complainant “was neither forced nor coerced into consuming the wine”; that there was no physical violence or threats or verbal abuse during the episodes; that the video recordings did not show any penile-anal or penile-vaginal penetration; and that the offending after the use of wine was not premeditated, but was opportunistic in nature after the complainant became intoxicated. There is no merit in any of these contentions. The applicant engaged in escalating, despicable sexual offending against his own daughter. Nothing in the sentencing remarks supports any assertion the sentencing judge misunderstood, overlooked, or over-estimated the nature and extent of that criminal conduct. Further, to have given his daughter wine and then taken advantage of her to pursue his sexual gratification, whilst recording it for his “catalogue”, was an aggravating feature, whether or not it was premeditated or properly to be described as opportunistic in nature. The applicant’s conduct involved a depravity which went beyond sexual defilement of his own daughter. It included humiliation by persisting in that conduct despite obvious pain, distress and attempts at resistance and filming of that conduct, thereby maintaining a permanent record of his depravity. Against that background, there is no basis to conclude that the sentence imposed for the count of maintaining a sexual relationship evidenced a misapplication of principle. The sentence imposed fell within a sound exercise of the sentencing discretion. The sentence of 15 years imprisonment for the maintaining count was neither unreasonable, nor plainly unjust. It was not manifestly excessive.Orders I would order:1.The application for an extension of time within which to appeal against conviction be refused.2.Leave to appeal against sentence be refused. COOPER J: I agree with Boddice JA.

CITATION:	R v NAF [2023] QCA 197
PARTIES:	R v NAF (applicant)
FILE NO/S:	CA No 274 of 2021 SC No 843 of 2021 SC No 841 of 2021 SC No 166 of 2021 SC No 1338 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction) Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 13 October 2021 (Wilson J)
DELIVERED ON:	29 September 2023
DELIVERED AT:	Brisbane
HEARING DATE:	24 August 2023
JUDGES:	Mullins P and Boddice JA and Cooper J
ORDERS:	1. The application for an extension of time within which to appeal against conviction be refused. 2. Leave to appeal against sentence be refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – where the applicant pleaded guilty to one count of maintaining a sexual relationship with a child, in addition to 28 other sexual offences and 10 drug offences – where the applicant seeks an extension of time within which to appeal his conviction in respect of the maintaining count – where the applicant submits that had he had a clear knowledge of the duration of the maintaining count, he would not have entered a plea of guilty in respect of it – whether the applicant entered his plea of guilty to the maintaining count voluntarily and with full knowledge of the nature and extent of that count CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant received a head sentence of 15 years imprisonment on the maintaining count, and lesser concurrent periods of imprisonment on the remaining counts – where the sexual offending was committed against the applicant’s biological daughter between the ages of seven and 13 years – where the applicant entered early pleas of guilty – where the sentencing judge recorded the applicant’s treatment of the complainant was degrading and inhumane – where the sentencing judge recorded it was difficult to accept a contention that the applicant did not have a general interest in children sexually – where the applicant submits, inter alia, in respect of one occasion where the applicant gave the complainant wine before filming his sexual acts, the complainant was neither forced nor coerced into consuming the wine; that there was no physical violence or threats or verbal abuse during the episodes; that the recordings did not show any penile-anal or penile-vaginal penetration; and that the offending after the use of wine was not premeditated, but opportunistic in nature after the complainant became intoxicated – whether the sentencing judge overlooked, undervalued, misunderstood or over-estimated some salient feature of the evidence – whether, in all the circumstances, the sentence imposed was manifestly excessive
COUNSEL:	The applicant appeared on his own behalf C M Cook for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent