R v NK

Case [2008] QCA 403 12 December 2008

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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 2008

DIVISION:

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 part

ORDERS:

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…

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 NK

Details

AGLC: R v NK [2008] QCA 403
Case: [2008] QCA 403
Decision Date: 12 December 2008

CaseChat Overview and Summary

The appellant in this case, NK, appealed against his sentences on the basis that they were manifestly excessive. NK had pleaded guilty to a total of 88 counts of offences across State and Federal jurisdictions, including multiple counts of rape, incest, and possession and distribution of child exploitation material. The appellant was sentenced in the District Court to a total of 19 years imprisonment, consisting of a 15-year concurrent sentence for serious State offences and a concurrent 4-year sentence for Federal offences. The Federal sentences were to be served cumulatively with each other.

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

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

Full text does not contain this section.

Citations

AGLC Citation

R v NK [2008] QCA 403

Most Recent Citation

R v KAC [2010] QCA 39

Cases citing this decision · 7 of 7 shown

R v Armstrong
[2016] QCA 243 Para 4

…cumulatively upon the other sentences and the defence did not suggest otherwise. [3][2005] QCA 93 at [22]. [4](2008) 191 A Crim R 483, 498 [78]; [2008] QCA 403 at [78] (Muir JA and Fryberg J agreeing).…
R v CBO
[2016] QCA 24 Para 3

…ermissible in relation to a sentence for a Commonwealth offence combined with a State sentence may involve different considerations: see R v NK [2008] QCA 403 at [3], [74]-[78], [94]-[96].…
R v CBJ
[2013] QCA 258

…Qld, CA No 13 of 1991, 28 March 1991, considered R v MBJ [2010] QCA 211 , distinguished R v NK (2008) 191 A Crim R 483; [2008] QCA 403 , considered R v Robinson [2007] QCA 99 , distinguished R v Ruhland [1999] QCA 430 , considered R v S [1993] QCA 367 , considered cited cited COUNSEL: J M McInnes for the applican…
R v Hampson
[2011] QCA 132

…yer [2008] QCA 117, considered R v Jackson & Hakim [1988] 33 A Crim R 413, considered R v NK (2008) 191 A Crim R 483; [2008] QCA 403, cited R v Pham (2009) 197 A Crim R 246; [2009] QCA 242, cited R v Robinson [2011] QCA 27, cited R v Salsone; ex parte A-G (Qld) [2008] QCA 220, cited Skinner v The King (1913) 16 C…
R v Hargraves and Stoten
[2010] QSC 188

…v Le [1996] 2 Qd R 516; [1995] QCA 479, cited R v Narula (1985) 22 A Crim R 409, cited R v NK (2008) 191 A Crim R 483; [2008] QCA 403, cited R v Peters [1997] 1 VR 489, cited R v Ronen [2006] NSWCCA 123, cited R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 010, applied R v Schubring; ex parte A-G (Qld) [20…
R v KAC
[2010] QCA 39 Para 1

…of nine years.[5] When that is understood, reference to this case does not suggest that the sentence in the present case is manifestly excessive. [4][2008] QCA 403. [5][2008] QCA 403 at [79].…
DPP v Latham
[2009] TASSC 101 Para 1

…reduced from 18 months. [2] Director of Public Prosecutions v DJS [2003] VSCA 9; R v Jongsma (2004) 150 A Crim R 386; R v GAE [2008] QCA 128; R v NK [2008] QCA 403.…

View all 7 citing cases →

Cases cited in this decision · 23 of 23 shown

R v Carson
[2008] QCA 268 Para 1

…denunciation for offences of that kind: R v Plunkett [2006] QCA 182 at 3, 6; R v Wharley (2007) 175 A Crim R 253; [2007] QCA 295 at [17]; R v Carson [2008] QCA 268 at [32]. As was said in R v Jones (1999) 108 A Crim R 50 at 52; [1999] WASCA 24:…
R v RAC
[2008] QCA 185 Para 1

…l abuse was graphically illustrated by an audio recording (covertly made by police when searching for evidence of a different offence): see R v RAC [2008] QCA 185 at [30]. It was in that context that Keane JA observed in Robinson , in paragraph [40], that the authorities supported a sentence of imprisonment in a…
R v. GAE; ex parte A-G (Qld)
[2008] QCA 128 Para 1

…oach was endorsed in this Court’s decisions in R v Dickeson, ex-parte A-G; R v Dickeson [2004] QCA 78 at p 12 and R v GAE; ex-parte A-G (Qld) [2008] QCA 128 at [19], [26] and [29]-[30];…
R v Wharley
[2007] QCA 295 Para 1

…ss the importance of deterrence and denunciation for offences of that kind: R v Plunkett [2006] QCA 182 at 3, 6; R v Wharley (2007) 175 A Crim R 253; [2007] QCA 295 at [17]; R v Carson [2008] QCA 268 at [32]. As was said in R v Jones (1999) 108 A Crim R 50 at 52; [1999] WASCA 24:…
R v Harris-Davies
[2007] QCA 164

…[16] R v Harris-Davies [2007] QCA 164.…
R v Robinson
[2007] QCA 99 Para 1

…District Court and from decisions of this Court, namely R v D [2003] QCA 88, R v Dickeson; ex-parte A-G; R v Dickeson [2004] QCA 78 and R v Robinson [2007] QCA 99.…
R v PAD
[2006] QCA 398 Para 1

…dded. [5] R v Knijff (1993) 69 A Crim R 236; R v H [2001] QCA 167; R v G [2002] QCA 381; R v DAF [2004] QCA 368; R v HAA [2006] QCA 55; R v PAD [2006] QCA 398.…
R v Plunkett
[2006] QCA 182 Para 1

…ed. That conduct must not be overlooked. The authorities stress the importance of deterrence and denunciation for offences of that kind: R v Plunkett [2006] QCA 182 at 3, 6; R v Wharley (2007) 175 A Crim R 253; [2007] QCA 295 at [17]; R v Carson [2008] QCA 268 at [32]. As was said in R v Jones (1999) 108 A Crim R…
R v HAA
[2006] QCA 55 Para 1

…t para [41]; emphasis added. [5] R v Knijff (1993) 69 A Crim R 236; R v H [2001] QCA 167; R v G [2002] QCA 381; R v DAF [2004] QCA 368; R v HAA [2006] QCA 55; R v PAD [2006] QCA 398.…
R v Daswani
[2005] QCA 167

…ited R v Arnold; ex parte A-G (Qld) (2002) 134 A Crim R 151; [2002] QCA 357, discussed R v D [2003] QCA 88, discussed R v Daswani (2005) 53 ACSR 675; [2005] QCA 167, cited R v Dickeson; ex parte A-G; R v Dickeson [2004] QCA 78, discussed R v GAE; ex parte A-G (Qld) [2008] QCA 128, followed R v Jones (1999) 108 A Crim…
R v McMillan
[2005] QCA 93 Para 1

…difficult task" involved in attempting to impose cumulative sentences under the different Commonwealth and State sentencing regimes: see R v McMillan [2005] QCA 93 at [21]. However, in my opinion the sentencing judge’s approach of combining the Federal sentences with the State sentences in the form of increased…
R v DAF
[2004] QCA 368 Para 1

…. [3][2007] QCA 99. [4]At para [41]; emphasis added. [5] R v Knijff (1993) 69 A Crim R 236; R v H [2001] QCA 167; R v G [2002] QCA 381; R v DAF [2004] QCA 368; R v HAA [2006] QCA 55; R v PAD [2006] QCA 398.…
R v Dickeson; ex parte A-G; R v Dickeson
[2004] QCA 78 Para 1

…derived from a decision of the District Court and from decisions of this Court, namely R v D [2003] QCA 88, R v Dickeson; ex-parte A-G; R v Dickeson [2004] QCA 78 and R v Robinson [2007] QCA 99.…
R v Nagy
[2003] QCA 175 Para 1

…In R v Nagy [2004] 1 Qd R 63 at [39]; [2003] QCA 175, Williams JA (with whose reasons in this respect Muir J agreed) said that the approach of fixing a sentence for the most serious offence which is higher than it would have been because it takes into account the offender’s overall criminality should not be adopt…
R v D
[2003] QCA 148 Para 1

…Counsel for the State cites R v D [2003] QCA 148. That offender was convicted after a trial and sentenced to 14 years imprisonment for the rape of his four year old daughter, as a result of which she spent her fifth birthday in hospital being treated for injuries caused by the rape. The rape was a horrific one. T…
R v D
[2003] QCA 88 Para 1

…prisonment. Her submission was that this range was to be derived from a decision of the District Court and from decisions of this Court, namely R v D [2003] QCA 88, R v Dickeson; ex-parte A-G; R v Dickeson [2004] QCA 78 and R v Robinson [2007] QCA 99.…
R v G
[2002] QCA 381 Para 1

…iptive, not prescriptive. [3][2007] QCA 99. [4]At para [41]; emphasis added. [5] R v Knijff (1993) 69 A Crim R 236; R v H [2001] QCA 167; R v G [2002] QCA 381; R v DAF [2004] QCA 368; R v HAA [2006] QCA 55; R v PAD [2006] QCA 398.…
R v Arnold; ex parte
[2002] QCA 357 Para 1

…Counsel for the State also cited R v Arnold; ex parte A-G (Qld) [2002] QCA 357. That offender was convicted, in respect of a two year old male complainant, of one offence of rape, two of attempted rape, two of stupefying to commit an indictable offence, one indecent assault with a circumstance of aggravation, one…
R v H
[2001] QCA 167 Para 1

…he statement was descriptive, not prescriptive. [3][2007] QCA 99. [4]At para [41]; emphasis added. [5] R v Knijff (1993) 69 A Crim R 236; R v H [2001] QCA 167; R v G [2002] QCA 381; R v DAF [2004] QCA 368; R v HAA [2006] QCA 55; R v PAD [2006] QCA 398.…
AB v The Queen
[1999] HCA 46 Para 1

…would not have been charged with as many offences: reference was made to Hayne J’s observations in AB v The Queen (1999) 198 CLR 111 at 155 [113]; [1999] HCA 46, which emphasise the significance that must be attributed to that as a mitigating factor. That is not a feature upon which the applicant can rely here.…
R v Jones
[1999] WASCA 24 Para 1

…v Wharley (2007) 175 A Crim R 253; [2007] QCA 295 at [17]; R v Carson [2008] QCA 268 at [32]. As was said in R v Jones (1999) 108 A Crim R 50 at 52; [1999] WASCA 24:…
R v To and Do; ex parte
[1998] QCA 106

…ited R v RAC [2008] QCA 185, discussed R v Robinson [2007] QCA 99, distinguished R v To & Do; ex parte Cth DPP [1999] 2 Qd R 166; [1998] QCA 106, cited R v Wharley (2007) 175 A Crim R 253; [2007] QCA 295, cited COUNSEL: J T Bradshaw for the applicant/appellant D L Meredith for the respondent, Director of Public P…
R v Burley; ex parte
[1998] QCA 98 Para 1

…eral component of the “combined” sentence. That is inconsistent with the Commonwealth Act: see R v To & Do; ex parte Cth DPP [1999] 2 Qd R 166; [1998] QCA 98.…

Legislation cited in this decision · 4

Crimes Act 1914 (Cth)
16F, 19(3)(d), 19AB(1) 4 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
160A(5), 161A(a) 3 mentions (from Para 1)
Corrective Services Act 2006 (Qld)
182 2 mentions (from Para 1)
Classification of Computer Games and Images Act 1995 (Qld)
1 mention (from Para 1)

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 2008
DIVISION:	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 part
ORDERS:	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…**