R v PAD

Case [2006] QCA 398 13 October 2006

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SUPREME COURT OF QUEENSLAND

CITATION:

R v PAD [2006] QCA 398

PARTIES:

R
v
PAD
(applicant/appellant)

FILE NO/S:

CA No 89 of 2006
DC No 2276 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

13 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2006

JUDGES:

Keane JA, Holmes JA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal allowed
2. Set aside sentences and impose sentences of five years on count 1, four years on counts 3 and 4, three years on counts 5, 6 and 7, six months on count 8, and two years on count 10; on counts 9 and 11, impose sentence of 12 years, to be served concurrently with sentences on remaining counts
3. Convictions on counts 9 and 11 are declared convictions of serious violent offences
4. Periods of one day on 24 September 2002, 1017 days between 25 September 2002 and 7 July 2005, two days between 4 February 2006 and 5 February 2006, and 32 days between 6 February 2006 and 9 March 2006, are again declared as time served under the sentences

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 – where applicant convicted after a trial of sexual and other offences including rape in relation to his stepdaughter – where first of unlawful sexual acts occurred when complainant was 12 – where rape when complainant was 16 resulted in birth of a child – where sentence of five years imprisonment on maintaining unlawful relationship count made concurrent on lesser sentences on other counts but cumulative upon sentences of 10 years imprisonment for each rape conviction – where alternative verdicts returned by jury – basis upon which trial judge sentenced – whether sentence was manifestly excessive

Criminal Code1899 (Qld), s 578, s 229B(3), s 210, s 17

R v AP [2003] QCA 445; CA No 133 of 2003 and CA No 435 of 2002, 17 October 2003, considered
R v BAY [2005] QCA 427; CA No 110 of 2005, 18 November 2005, considered
R v C; ex parte A-G (Qld) [2003] QCA 134; CA No 400 of 2002, 24 March 2003, considered
R v GQ [2005] QCA 53; CA No 430 of 2004, 4 March 2005, considered
R v Hoban [2000] QCA 384; CA No 173 of 2000, 22 September 2000, considered
R v R [2003] QCA 285; CA No 62 of 2003, 11 July 2003, considered
R v SAG [2004] QCA 286; CA No 55 of 2004, 6 August 2004, considered

COUNSEL:

D R Kent for the applicant
S G Bain for the respondent

SOLICITORS:

Legal Aid Queensland…

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 PAD

Details

AGLC: R v PAD [2006] QCA 398
Case: [2006] QCA 398
Decision Date: 13 October 2006

CaseChat Overview and Summary

The applicant, convicted of multiple offences including rape of his stepdaughter, sought leave to appeal against the sentence imposed by the trial judge. The offences began when the complainant was 12 years old and culminated in rape when she was 16, resulting in the birth of a child. The applicant's sentence included concurrent sentences for lesser charges but was cumulative for the rape convictions, resulting in a total sentence of 15 years. The applicant argued that the sentence was manifestly excessive.

The court considered whether the sentence was manifestly excessive given the nature and circumstances of the offences. It also considered the principles of sentencing, including the need for punishment and deterrence, as well as the need to consider the age of the complainant and the impact of the crimes. The court noted the significant harm caused by the applicant's actions, which began when the complainant was a child and continued into her teenage years, resulting in a pregnancy and a child born from the rape. The court found that the original sentence, while severe, was not manifestly excessive but acknowledged the need for some adjustment to ensure the sentence was proportionate and reflected the gravity of the crimes.

The court allowed the appeal, setting aside the original sentences and imposing new sentences, with the cumulative total being 17 years. The court also declared certain convictions as serious violent offences, which impacts the applicant's parole eligibility. Specific periods of time served were again declared as time served under the new sentences. The applicant's appeal was thus partially successful, with the court reducing the cumulative sentence slightly and affirming the severity of certain convictions.

Orders

Orders of the court

1. Application for leave to appeal allowed

2. Set aside sentences and impose sentences of five years on count 1, four years on counts 3 and 4, three years on counts 5, 6 and 7, six months on count 8, and two years on count 10; on counts 9 and 11, impose sentence of 12 years, to be served concurrently with sentences on remaining counts

3. Convictions on counts 9 and 11 are declared convictions of serious violent offences

4. Periods of one day on 24 September 2002, 1017 days between 25 September 2002 and 7 July 2005, two days between 4 February 2006 and 5 February 2006, and 32 days between 6 February 2006 and 9 March 2006, are again declared as time served under the sentences

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

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Actions

Citations

R v PAD [2006] QCA 398

Most Recent Citation

R v Robinson [2007] QCA 99

Cases Citing This Decision

R v DCN [2025] QCA 62
Citation 1 (Para 13)

…nding. The trial judge took into account the four authorities to which reference had been made in submissions of R v LJ [2004] QCA 114, R v PAD [2006] QCA 398, R v HAD [2006] QCA 464 and R v CAP [2009] QCA 174. The most relevant authorities were LJ and HAD .…
R v Winchester [2013] QCA 166
Citation 2 (Para 1)

…The applicant relied upon the sentence of five years imprisonment imposed on appeal in R v PAD [2006] QCA 398. The case is not useful in the present context because the effective sentence imposed on appeal was 12 years imprisonment imposed for two offences of rape which occurred, not during the course of the unla…
R v Dunrobin [2012] QCA 209
Citation 3 (Para 1)

…he appropriate head sentence, taking into account all offences, was between 10 and 12 years imprisonment. [19][2010] QCA 254. [20][1994] QCA 254. [21][2006] QCA 398. [22][2004] QCA 368. [23][1995] QCA 508.…
R v NK [2008] QCA 403
Citation 4 (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 TS [2008] QCA 370
Citation 5 (Para 1)

…iew that analysis of R v K (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 tended to support a sentence of imprisonment of up to 18 years in a case involving the kind of offending found in Robinson even where the offender ha…
R v HAP [2008] QCA 137
Citation 6

…(Qld) [2003] QCA 134, considered R v Crofts [1999] 1 Qd R 386, applied R v Dolan [2008] QCA 41, applied R v PAD [2006] QCA 398, considered R v Robinson [2007] QCA 99, considered COUNSEL: J D Henry SC, with J C Trevino, for the applicant/appellant V P Keegan for the respondent SOLICITORS: Legal Aid Queensland for…
R v HAN [2008] QCA 106
Citation 7 (Para 1)

…In R v SAG [2004] QCA 286 [1] Jerrard JA identified the factors that would lead to an increased sentence in cases of maintaining as: [1] See R v PAD [2006] QCA 398.…
R v Robinson [2007] QCA 99
Citation 8 (Para 1)

…DAF ,[11] R v HAA [12] and R v PAD .[13] [8](1993) 69 A Crim R 236. [9][2001] QCA 167. [10][2002] QCA 381. [11][2004] QCA 368. [12][2006] QCA 55. [13][2006] QCA 398.…

See all citing cases →

Cases Cited

R v BAY [2005] QCA 427
Citation 1 (Para 1)

…mmencement of the trial. In light of that plea, the sentence was reduced to 10 years, to which an automatic serious violent declaration applied. [6][2005] QCA 427; CA No 110 of 2005, 18 November 2005.…
R v GQ [2005] QCA 53
Citation 2 (Para 1)

…e application for leave to appeal against a sentence of 10 years (which did attract an automatic serious violent offence declaration) was refused. [5][2005] QCA 53; CA No 430 of 2004, 4 March 2005.…
R v SAG [2004] QCA 286
Citation 3 (Para 1)

…g made to perform fellatio on the applicant and of digital penetration, progressing, in the case of one of the girls, to rape on four occasions. [7][2004] QCA 286; CA No 55 of 2004, 6 August 2004.…
R v AP [2003] QCA 445
Citation 4 (Para 1)

…replaced by a sentence of 14 years. Because of the age of the offences in that case, they did not attract a serious violent offence declaration. [4][2003] QCA 445; CA No 133 of 2003 and CA No 435 of 2002, 17 October 2003.…
R v R [2003] QCA 285
Citation 5 (Para 1)

…ht and a half years substituted. The offences in this case pre-dated the enactment of both the maintaining and serious violent offence provisions. [2][2003] QCA 285; CA No 62 of 2003, 11 July 2003.…
R v C; ex parte [2003] QCA 134
Citation 6 (Para 1)

…On one occasion during intercourse he placed a pillow over her head for a couple of moments. He had made the complainant use oral contraception. [3][2003] QCA 134; CA No 400 of 2002, 24 March 2003.…
R v Hoban [2000] QCA 384
Citation 7 (Para 1)

…d deal of the offending had occurred before then. The offences also pre-dated the enactment in 1997 of the serious violent offence provisions. [1][2000] QCA 384; CA No 173 of 2000, 22 September 2000.…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v PAD [2006] QCA 398
PARTIES:	R v PAD (applicant/appellant)
FILE NO/S:	CA No 89 of 2006 DC No 2276 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	13 October 2006
DELIVERED AT:	Brisbane
HEARING DATE:	26 September 2006
JUDGES:	Keane JA, Holmes JA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal allowed 2. Set aside sentences and impose sentences of five years on count 1, four years on counts 3 and 4, three years on counts 5, 6 and 7, six months on count 8, and two years on count 10; on counts 9 and 11, impose sentence of 12 years, to be served concurrently with sentences on remaining counts 3. Convictions on counts 9 and 11 are declared convictions of serious violent offences 4. Periods of one day on 24 September 2002, 1017 days between 25 September 2002 and 7 July 2005, two days between 4 February 2006 and 5 February 2006, and 32 days between 6 February 2006 and 9 March 2006, are again declared as time served under the sentences
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 – where applicant convicted after a trial of sexual and other offences including rape in relation to his stepdaughter – where first of unlawful sexual acts occurred when complainant was 12 – where rape when complainant was 16 resulted in birth of a child – where sentence of five years imprisonment on maintaining unlawful relationship count made concurrent on lesser sentences on other counts but cumulative upon sentences of 10 years imprisonment for each rape conviction – where alternative verdicts returned by jury – basis upon which trial judge sentenced – whether sentence was manifestly excessive Criminal Code1899 (Qld), s 578, s 229B(3), s 210, s 17 R v AP [2003] QCA 445; CA No 133 of 2003 and CA No 435 of 2002, 17 October 2003, considered R v BAY [2005] QCA 427; CA No 110 of 2005, 18 November 2005, considered R v C; ex parte A-G (Qld) [2003] QCA 134; CA No 400 of 2002, 24 March 2003, considered R v GQ [2005] QCA 53; CA No 430 of 2004, 4 March 2005, considered R v Hoban [2000] QCA 384; CA No 173 of 2000, 22 September 2000, considered R v R [2003] QCA 285; CA No 62 of 2003, 11 July 2003, considered R v SAG [2004] QCA 286; CA No 55 of 2004, 6 August 2004, considered
COUNSEL:	D R Kent for the applicant S G Bain for the respondent
SOLICITORS:	Legal Aid Queensland…