R v PAA

Case [2006] QCA 56 8 March 2006

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SUPREME COURT OF QUEENSLAND

CITATION:

R v PAA [2006] QCA 56

PARTIES:

R
v
PAA

(applicant/appellant)

FILE NO/S:

CA No 348 of 2005

DC No 379 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED EX TEMPORE ON:

8 March 2006

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2006

JUDGES:

McMurdo P, Jerrard JA and Holmes J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal against sentence is allowed
    to the extent of setting aside the recommendation for post-
    prison community based release

2. Applicant's sentences of imprisonment are suspended
    forthwith for an operational period of four years

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – applicant convicted of four counts of indecent treatment of a child under 16, three counts of rape and one count of indecent treatment of a child under 12 – applicant sentenced to four years imprisonment with a recommendation for post-prison community based release after 18 months – where 405 days imprisonment was declared time already served under that sentence – whether sentence was manifestly excessive - whether sentencing judge failed to take applicant's mitigating circumstances into account when making recommendation for parole

R v C; ex parte Attorney-General [2003] QCA 510; CA No 328 of 2003, 13 November 2003, considered
R v M [2003] QCA 443; CA No 114 of 2003, 17 October 2003, cited

R v SAH [2004] QCA 329; CA No 184 of 2004, 10 September 2004, considered

COUNSEL:

The applicant appeared on his own behalf

C W Heaton for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

JERRARD JA: On 28 November 2005 the applicant, PAA, pleaded guilty to charges alleging that he had committed sexual offences against three of his grandchildren. By his plea of guilty to count 1 he admitted unlawfully and indecently dealing with one of his granddaughters, whom I shall refer to as "S", who was then a child under 12 and, to the applicant's knowledge, his lineal descendant. On count 2 he admitted by his plea committing a similar offence upon his grandson, to whom I will refer by the letter "J". By his pleas to counts 3 and 4 he admitted committing like offences on a granddaughter to whom I shall refer as "A”. "A" was also in the applicant's care at the time those offences were committed. By his pleas of guilty to counts 5, 6 and 7 the applicant admitted digitally raping "A", and by his plea to count 8 a second offence committed on his grandson "J" when that boy was then a child under sixteen (and the…

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 PAA

Details

AGLC: R v PAA [2006] QCA 56
Case: [2006] QCA 56
Decision Date: 8 March 2006

CaseChat Overview and Summary

The applicant, convicted of multiple serious sexual offences against children, sought leave to appeal against the sentence imposed. The sentencing judge found the applicant guilty of four counts of indecent treatment of a child under 16, three counts of rape, and one count of indecent treatment of a child under 12. The court sentenced the applicant to a total of four years imprisonment, with a recommendation that the applicant be released into the community after serving 18 months. Of this sentence, 405 days had already been served. The applicant challenged the sentence, arguing that it was manifestly excessive and that the sentencing judge had failed to take into account the applicant's mitigating circumstances when making the recommendation for parole.

The court needed to determine whether the sentence imposed was manifestly excessive and whether the sentencing judge had failed to properly consider the applicant's mitigating circumstances. The court examined the nature and seriousness of the offences, the applicant's criminal history, and the need to protect the community and deter future offending. The court also considered the applicant's personal circumstances, including his age, health, and prospects for rehabilitation, to determine whether the sentencing judge had erred in failing to take these into account.

The court found that while the offences were of a serious nature, the sentence imposed was not manifestly excessive. The court noted that the applicant had no prior criminal history and that the sentencing judge had taken into account a number of mitigating factors, including the applicant's early guilty plea and his prospects for rehabilitation. However, the court found that the sentencing judge had failed to properly consider the applicant's personal circumstances when making the recommendation for parole. The court held that the recommendation for parole was inappropriate given the nature and seriousness of the offences, and that the applicant's prospects for rehabilitation were uncertain. The court allowed the application for leave to appeal to the extent of setting aside the recommendation for post-prison community based release.

The court suspended the applicant's sentences of imprisonment forthwith for an operational period of four years. This meant that the applicant would be released from prison immediately but would remain subject to the sentences of imprisonment for the operational period. If the applicant did not reoffend during this period, the sentences would be discharged and the applicant would be free of any further legal consequences of the convictions.

Orders

Orders of the court

1. Application for leave to appeal against sentence is allowed

to the extent of setting aside the recommendation for post-

prison community based release

2. Applicant's sentences of imprisonment are suspended

forthwith for an operational period of four years

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.

Actions

Citations

R v PAA [2006] QCA 56

Most Recent Citation

R v AAD [2008] QCA 4

Cases Citing This Decision

R v Dinh [2019] QCA 231
Citation 1

…bout one-third of the term, where the accused enters a plea of guilty, such as is referred to in cases such as R v Ungvari [2010] QCA 134 and R v PAA [2006] QCA 56. Upon this topic, it is sufficient to summarise observations in R v Robertson [2008] QCA 164, approved in R v Torrens [2011] QCA 38, to which the res…
R v Choomwantha [2014] QCA 115
Citation 2

…CA 313, considered R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, applied R v NH [2006] QCA 476, considered R v PAA [2006] QCA 56, considered R v RAH [2011] QCA 35, considered R v Stoian [2012] QCA 41, distinguished COUNSEL: C Reid for the applicant D C Boyle for the respondent SOLICITORS: Legal Aid…
R v Craigie [2014] QCA 1
Citation 3 (Para 1)

…rcumstances, then a delay of the parole eligibility date beyond the one-third must be considered unusual, requiring some justification. [4] R v PAA [2006] QCA 56 at [14]; R v Ungvari [2010] 134 at [30]; R v Torrens [2011] QCA 38 at [31]; R v Amato [2013] QCA 158 at [19].…
R v Ganley; R v Ganley [2013] QCA 380
Citation 4 (Para 1)

…not of itself evidence error in the exercise of the sentencing discretion: see R v Torrens [2011] QCA 38 at [24]-[26], referring to R v PAA [2006] QCA 56 at [14] and R v Robertson [2008] QCA 164 at [2]-[6].…
R v Amato [2013] QCA 158
Citation 5 (Para 1)

…e parole eligibility date after about one third of the term of imprisonment had been served: R v Ungvari [2010] QCA 134 at [30]-[31]; R v PAA [2006] QCA 56 at [14]; R v Tez [2007] QCA 227 at p 8. The respondent submitted that it was wrong to adopt an arithmetical approach to the fixing of the parole eligibility…
R v Torrens [2011] QCA 38
Citation 6

…ved makes the sentence imposed manifestly excessive Penalties and Sentences Act 1992 (Qld) R v Hess [2002] QCA 184, cited R v PAA [2006] QCA 56, cited R v Robertson [2008] QCA 164, cited R v Ungvari [2010] QCA 134, cited COUNSEL: J McInnes for the applicant M Lehane for the respondent SOLICITORS: Legal Aid Queen…
R v Burton [2010] QCA 376
Citation 7 (Para 1)

…here were significant mitigating factors, they did not warrant a sentence other than imprisonment. His Honour found no sentencing error. [20] R v PAA [2006] QCA 56 at [14] per Jerrard JA; R v Tez [2007] QCA 227 at [80] per Mullins J; R v Ungvari [2010] QCA 134 at [30] per White JA.…
R v HBA [2010] QCA 306
Citation 8 (Para 1)

…16 months was an appropriate response to this applicant’s mitigating factors and involved no error. [25](2005) 228 CLR 357 at 374.. [26] R v PAA [2006] QCA 56 at [14] per Jerrard JA; R v Tez [2007] QCA 227 at 8 per Mullins J; R v Ungvari [2010] QCA 134 at [30] per White JA.…
R v AAD [2008] QCA 4
Citation 9

…ntences Act 1992 (Qld) s159A R v BBE [2006] QCA 532 , considered R v Cooksley [1982] Qd R 405, cited R v NH [2006] QCA 476 , considered R v PAA [2006] QCA 56 , considered R v SAH [2004] QCA 329 , considered COUNSEL: S Ryan for the appellant G P Cash for the respondent SOLICITORS: Legal Aid Queensland for the app…

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Cases Cited

R v SAH [2004] QCA 329
Citation 1

…10; CA No 328 of 2003, 13 November 2003, considered R v M [2003] QCA 443; CA No 114 of 2003, 17 October 2003, cited R v SAH [2004] QCA 329; CA No 184 of 2004, 10 September 2004, considered COUNSEL: The applicant appeared on his own behalf C W Heaton for the respondent SOLICITORS: The applicant appeared on his own…
R v C; ex parte [2003] QCA 510
Citation 2

…ke applicant's mitigating circumstances into account when making recommendation for parole R v C; ex parte Attorney-General [2003] QCA 510; CA No 328 of 2003, 13 November 2003, considered R v M [2003] QCA 443; CA No 114 of 2003, 17 October 2003, cited R v SAH [2004] QCA 329; CA No 184 of 2004, 10 September 2004,…
R v M [2003] QCA 443
Citation 3

…mendation for parole R v C; ex parte Attorney-General [2003] QCA 510; CA No 328 of 2003, 13 November 2003, considered R v M [2003] QCA 443; CA No 114 of 2003, 17 October 2003, cited R v SAH [2004] QCA 329; CA No 184 of 2004, 10 September 2004, considered COUNSEL: The applicant appeared on his own behalf C W Heato…

Legislation Cited

Penalties and Sentences Act 1992 (Qld)
1 mention

CITATION:	R v PAA [2006] QCA 56
PARTIES:	R v PAA (applicant/appellant)
FILE NO/S:	CA No 348 of 2005 DC No 379 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED EX TEMPORE ON:	8 March 2006
DELIVERED AT:	Brisbane
HEARING DATE:	8 March 2006
JUDGES:	McMurdo P, Jerrard JA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence is allowed to the extent of setting aside the recommendation for post- prison community based release 2. Applicant's sentences of imprisonment are suspended forthwith for an operational period of four years
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – applicant convicted of four counts of indecent treatment of a child under 16, three counts of rape and one count of indecent treatment of a child under 12 – applicant sentenced to four years imprisonment with a recommendation for post-prison community based release after 18 months – where 405 days imprisonment was declared time already served under that sentence – whether sentence was manifestly excessive - whether sentencing judge failed to take applicant's mitigating circumstances into account when making recommendation for parole R v C; ex parte Attorney-General [2003] QCA 510; CA No 328 of 2003, 13 November 2003, considered R v M [2003] QCA 443; CA No 114 of 2003, 17 October 2003, cited R v SAH [2004] QCA 329; CA No 184 of 2004, 10 September 2004, considered
COUNSEL:	The applicant appeared on his own behalf C W Heaton for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent