SUPREME COURT OF QUEENSLAND
CITATION:
R v NK [2008] QCA 403
PARTIES:
R
v
NK
(applicant/appellant)FILE NO/S:
CA No 33 of 2008
DC No 56 of 2008
DC No 57 of 2008DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Cairns
DELIVERED ON:
12 December 2008
DELIVERED AT:
Brisbane
HEARING DATE:
17 June 2008
JUDGES:
Muir and Fraser JJA and Fryberg J
Separate reasons for judgment of each member of the Court, Muir and Fraser JJA concurring as to the orders made, Fryberg J dissenting in partORDERS:
1. Application for leave to appeal granted.
2. Appeal allowed.
3. Vary the sentences imposed in the District Court in the way set out in the following paragraphs.
4. The sentences imposed on the counts of rape (counts 56 and 57) and incest (counts 60, 61, 62 and 64) in the State indictment (57/08) be set aside and in lieu of those sentences the applicant be sentenced to 10 years imprisonment on each of those counts, each of those sentences to be served concurrently with each other and with the sentences imposed in the District Court for the other offences on the State indictment.
5. Declare that the convictions of the offences in counts 56, 57, 60, 61, 62 and 64 in the State indictment are convictions of serious violent offences.
6. Set aside the orders made in the District Court that the three terms imposed in the District Court on the counts in the Commonwealth indictment (56/08) be served cumulatively upon each other but concurrently with the head sentence of 15 years on the State charges and that the applicant be released after serving 24 months upon his giving security by recognizance in the sum of $1,000 on the condition that he be of good behaviour for a period of two years.
7. Instead of those orders:
(a) Order that the term of imprisonment of 18 months imposed in respect of count 1 in the Commonwealth indictment commence immediately after the applicant has served eight years of the 10 year term of imprisonment imposed in respect of the State indictment.
(b) Order that the term of imprisonment of 12 months imposed in respect of count 2 in the Commonwealth indictment commence immediately after the applicant has served the term imposed for count 1 in the Commonwealth indictment.
(c) Order that the term of imprisonment of 18 months imposed in respect of count 3 in the Commonwealth indictment commence immediately after the applicant has served the term imposed for count 2 in the Commonwealth indictment.
(d) Fix a single non-parole period of one year in respect of counts 1, 2 and 3 in the Commonwealth indictment; and
(e) Direct that the Registrar reduce this order to writing and cause a copy to be given to the applicant, together with the explanation required by s 16F(1) of the Crimes Act 1914 (Cth).
8. Direct that there be entered in the records of the District Court in respect of…
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- R v NK [2008] QCA 403
- Case
- [2008] QCA 403
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the sentences imposed were manifestly excessive or inadequate, and to consider the appropriate sentencing structure when dealing with both State and Federal offences. The court noted that the sentences imposed for the serious State offences were within the appropriate range, but that the Federal sentences were inadequate because they were not sufficiently punitive given the gravity of the offending. The court also considered the interaction between the State and Federal sentencing regimes and concluded that the Federal sentences should be structured in a way that reflected the seriousness of the offences.
The court allowed the appeal and varied the sentences imposed by the District Court. The court set aside the sentences for the most serious State offences and imposed a 10-year concurrent sentence for those offences, to be served concurrently with the Federal sentences. The court also ordered that the Federal sentences be served cumulatively with each other and commence at different times, with a single non-parole period of one year. The court made additional orders to clarify the time already served by the appellant and to ensure that the correct records were kept.
The court's orders varied the sentences imposed by the District Court and provided guidance on the appropriate sentencing structure for cases involving both State and Federal offences. The court emphasised the need for sentences to reflect the seriousness of the offending and to provide adequate punishment and deterrence. The court's decision provides useful guidance for sentencing courts when dealing with cases involving multiple offences across different jurisdictions.
Orders
Orders of the court
1. Application for leave to appeal granted.
2. Appeal allowed.
3. Vary the sentences imposed in the District Court in the way set out in the following paragraphs.
4. The sentences imposed on the counts of rape (counts 56 and 57) and incest (counts 60, 61, 62 and 64) in the State indictment (57/08) be set aside and in lieu of those sentences the applicant be sentenced to 10 years imprisonment on each of those counts, each of those sentences to be served concurrently with each other and with the sentences imposed in the District Court for the other offences on the State indictment.
5. Declare that the convictions of the offences in counts 56, 57, 60, 61, 62 and 64 in the State indictment are convictions of serious violent offences.
6. Set aside the orders made in the District Court that the three terms imposed in the District Court on the counts in the Commonwealth indictment (56/08) be served cumulatively upon each other but concurrently with the head sentence of 15 years on the State charges and that the applicant be released after serving 24 months upon his giving security by recognizance in the sum of $1,000 on the condition that he be of good behaviour for a period of two years.
7. Instead of those orders:
(a) Order that the term of imprisonment of 18 months imposed in respect of count 1 in the Commonwealth indictment commence immediately after the applicant has served eight years of the 10 year term of imprisonment imposed in respect of the State indictment.
(b) Order that the term of imprisonment of 12 months imposed in respect of count 2 in the Commonwealth indictment commence immediately after the applicant has served the term imposed for count 1 in the Commonwealth indictment.
(c) Order that the term of imprisonment of 18 months imposed in respect of count 3 in the Commonwealth indictment commence immediately after the applicant has served the term imposed for count 2 in the Commonwealth indictment.
(d) Fix a single non-parole period of one year in respect of counts 1, 2 and 3 in the Commonwealth indictment; and
(e) Direct that the Registrar reduce this order to writing and cause a copy to be given to the applicant, together with the explanation required by s 16F(1) of the Crimes Act 1914 (Cth).
8. Direct that there be entered in the records of the District Court in respect of counts 1, 2 and 3 in the Commonwealth indictment the statement that because of the seriousness of the offending no sentence is appropriate other than a sentence of imprisonment.
9. Set aside the declaration as to imprisonment already served pursuant to the sentences imposed in the District Court on 8 February 2008.
10. In respect of the terms of imprisonment imposed in the District Court as varied by these orders:
(a) State that the applicant was held in presentence custody between 10 August 2006 and 8 February 2008, a period of 547 days.
(b) Declare that that time is time already served under the sentences for the counts in the State indictment.
(c) Declare that none of that time is taken to be imprisonment already served under the sentences for the counts in the Commonwealth indictment.
(d) Direct that the Chief Executive Officer (Corrective Services) be advised of these declarations and their details.
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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