R v Ov - [2021] QCA 228

SUPREME COURT OF QUEENSLAND

CITATION:

R v OV [2021] QCA 228

PARTIES:

R
v
OV
(applicant)

FILE NO/S:

CA No 339 of 2019
DC No 1667 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 3 December 2019 (Smith DCJ)

DELIVERED ON:

22 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

21 May 2021

JUDGES:

Fraser and Mullins JJA and Mazza AJA

ORDER:

The application for leave to appeal against sentence and the application for leave to adduce evidence are refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of maintaining a sexual relationship with a child and one count of making child exploitation material – where the applicant was sentenced to concurrent terms of ten years’ imprisonment upon each of the maintaining counts and three years’ imprisonment upon the third count – where the convictions on the maintaining counts were declared to be convictions of serious violent offences, with the consequence that the applicant will be eligible for parole after serving eight years’ imprisonment – where the applicant submits the sentences are manifestly excessive – where the applicant contends she was vulnerable to the malign influence of Mr VTS and felt trapped in Australia – where the applicant submits that these matters mitigated the applicant’s moral culpability and reduced any relevance of specific deterrence – where the applicant also submits that the sentence should be mitigated as the inevitable deportation of the applicant will permanently separate the applicant from her daughters and render her period of imprisonment more burdensome – whether, in these circumstances, the sentence imposed by the primary judge was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to two counts of maintaining a sexual relationship with a child and one count of making child exploitation material – where the applicant contends that the primary judge took into account an irrelevant consideration that the objective of sentencing the applicant was to deter Australians who travel to the Philippines to sexually prey upon vulnerable children – where the applicant also submits that the applicant’s sentence was not an appropriate vehicle to generally deter Australians from travelling to the Philippines to sexually prey upon vulnerable children; rather, the applicant was herself a vulnerable person who had been groomed and subsequently taken advantage of by Mr VTS – whether the primary judged erred in taking into account an irrelevant consideration

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – POWERS OF APPELLATE COURT – TO ADMIT NEW EVIDENCE – where the applicant seeks leave to adduce an affidavit affirmed by the applicant more than 17 months after the sentence hearing – whether the Court should exercise its discretion to admit that affidavit on appeal

R v Leslie…

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 Ov

Details

AGLC: R v Ov [2021] QCA 228
Case: [2021] QCA 228
Decision Date: 22 October 2021

CaseChat Overview and Summary

The applicant, [Applicant's Name], pleaded guilty to two counts of maintaining a sexual relationship with a child and one count of making child exploitation material. The applicant was sentenced to concurrent terms of ten years’ imprisonment on each of the maintaining counts and three years’ imprisonment on the third count. The applicant appealed against the sentence, arguing that it was manifestly excessive and that the primary judge had taken into account irrelevant considerations. The applicant contended that her vulnerability and the impact of her inevitable deportation on her family should have been considered more heavily in mitigation.

The legal issues before the court were whether the sentences imposed were manifestly excessive and whether the primary judge had erred by taking into account irrelevant considerations. The applicant argued that her moral culpability was reduced due to her vulnerability and the influence of Mr VTS. She also argued that the primary judge had erred by focusing on deterring Australians from travelling to the Philippines to sexually prey on vulnerable children, rather than considering her own vulnerability and grooming by Mr VTS. The applicant further submitted that her sentence should be mitigated due to the impact of deportation on her family.

The court considered the arguments but ultimately found that the sentences imposed were not manifestly excessive. The court also determined that the primary judge did not err in considering the broader objective of deterring Australians from travelling to the Philippines to sexually exploit children. The court was not persuaded that the applicant's vulnerability and the impact of deportation constituted sufficient grounds to interfere with the primary judge's sentencing decision. The court also declined to admit the additional affidavit as it did not consider the late-submitted evidence warranted an exercise of the court's discretion.

The application for leave to appeal against sentence and the application for leave to adduce evidence were both refused.

Orders

Orders of the court

The application for leave to appeal against sentence and the application for leave to adduce evidence are 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

Full text does not contain this section.

CITATION:	R v OV [2021] QCA 228
PARTIES:	R v OV (applicant)
FILE NO/S:	CA No 339 of 2019 DC No 1667 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 3 December 2019 (Smith DCJ)
DELIVERED ON:	22 October 2021
DELIVERED AT:	Brisbane
HEARING DATE:	21 May 2021
JUDGES:	Fraser and Mullins JJA and Mazza AJA
ORDER:	The application for leave to appeal against sentence and the application for leave to adduce evidence are refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of maintaining a sexual relationship with a child and one count of making child exploitation material – where the applicant was sentenced to concurrent terms of ten years’ imprisonment upon each of the maintaining counts and three years’ imprisonment upon the third count – where the convictions on the maintaining counts were declared to be convictions of serious violent offences, with the consequence that the applicant will be eligible for parole after serving eight years’ imprisonment – where the applicant submits the sentences are manifestly excessive – where the applicant contends she was vulnerable to the malign influence of Mr VTS and felt trapped in Australia – where the applicant submits that these matters mitigated the applicant’s moral culpability and reduced any relevance of specific deterrence – where the applicant also submits that the sentence should be mitigated as the inevitable deportation of the applicant will permanently separate the applicant from her daughters and render her period of imprisonment more burdensome – whether, in these circumstances, the sentence imposed by the primary judge was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to two counts of maintaining a sexual relationship with a child and one count of making child exploitation material – where the applicant contends that the primary judge took into account an irrelevant consideration that the objective of sentencing the applicant was to deter Australians who travel to the Philippines to sexually prey upon vulnerable children – where the applicant also submits that the applicant’s sentence was not an appropriate vehicle to generally deter Australians from travelling to the Philippines to sexually prey upon vulnerable children; rather, the applicant was herself a vulnerable person who had been groomed and subsequently taken advantage of by Mr VTS – whether the primary judged erred in taking into account an irrelevant consideration CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – POWERS OF APPELLATE COURT – TO ADMIT NEW EVIDENCE – where the applicant seeks leave to adduce an affidavit affirmed by the applicant more than 17 months after the sentence hearing – whether the Court should exercise its discretion to admit that affidavit on appeal R v Leslie…