R v Sagiba; ex parte - [1999] QCA 468

99.468

COURT OF APPEAL

McMURDO P THOMAS JA WILLIAMS J

CA No 281 of 1999
THE QUEEN
v.

FRANK CYRIL SAGIBA	(Respondent)
ATTORNEY-GENERAL OF QUEENSLAND	(Appellant)

BRISBANE
..DATE 05/11/99
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THOMAS JA: The respondent was convicted of a variety of
offences and sentenced to concurrent terms, the longest
of which was four years' imprisonment.

This is an appeal by the Attorney-General on the ground that the sentences were manifestly inadequate. The offences were committed between October 1998 and April 1999. During that period the respondent turned 19. He was born in Thursday Island and educated in and around the Port Douglas and Mosman areas. The offences were committed in those areas, most of them in Port Douglas.

Fifteen indictable offences were charged, involving the breaking and entering or attempted breaking and entering of nine separate premises. In addition, there were nine summary offences, seven of which were of being found unlawfully in a yard.

The respondent has no previous convictions and was described as being from a good family, as having previously been a good worker and as having been a good productive member of the community.

The offences were described by counsel for the Attorney- General as amounting to a six month spree of offending in and around Port Douglas. The worst aspect of these offences is that during three of the burglaries, the respondent indecently assaulted the female occupant of the premises.

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Another feature is the persistence of the conduct in that
while on bail for the first three burglaries and indecent
assaults, he continued to offend. In February he was
dealt with in the Magistrates Court on some offences of
entering premises and committing an indictable offence,
and was granted probation for 12 months and ordered to
perform community service. However he continued to
offend, notwithstanding the probation, and therefore fell
to be resentenced on those matters as part of the present
sentencing exercise. The last offences in the series
included the final three burglaries and five incidents of
being unlawfully in a yard. These were committed after
he had absconded on bail.

The circumstances of the first offence are that a woman who lived in a unit with her 12-year-old daughter in Port Douglas went to sleep on the lounge. The back door had been left open. The respondent entered and lay on top of the complainant, simulating intercourse with a sheet between them. When the complainant fully awoke, she reacted with shock and the respondent left.

A few weeks later, he broke into the house of a 22-year-
old woman who lived with her husband and two young
children. She awoke to find the respondent fondling her
pubic area on the outside of her clothing. He kissed her
on the cheek and neck. Upon becoming fully awake, she
realised that it was not her husband. The respondent ran
off, leaving behind a baseball cap.
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A few days later, the respondent returned to the unit…

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 Sagiba; ex parte

Details

AGLC: R v Sagiba; ex parte [1999] QCA 468
Case: [1999] QCA 468
Decision Date: 5/11/1999

CaseChat Overview and Summary

The Court of Appeal heard an appeal by the Attorney-General against the sentencing of Frank Cyril Sagiba, who was convicted of multiple indictable and summary offences including breaking and entering and indecent assault. The appeal was brought on the ground that the sentences were manifestly inadequate. Sagiba was sentenced to concurrent terms, the longest of which was four years' imprisonment. The offences were committed between October 1998 and April 1999, involving the breaking and entering or attempted breaking and entering of nine separate premises and nine summary offences. The respondent had no previous convictions and was described as being from a good family and having previously been a good worker and productive member of the community.

The legal issues before the court were whether the sentences imposed were manifestly inadequate and whether the appeal should be upheld. The court had to consider the nature and seriousness of the offences, the need for general and specific deterrence, and the principles of sentencing for young offenders with no previous convictions. The court also had to consider whether the sentences imposed were disproportionate to the crimes committed and whether there were any mitigating factors that should have been taken into account.

The court held that the appeal should be dismissed. The judges found that while the sentences imposed were perhaps low, they were not manifestly inadequate. The court found that the primary judge had taken into account the youth of the offender and his lack of previous convictions, and had imposed a sentence that was appropriate to the circumstances of the case. The court noted that the respondent had shown remorse and shame for his actions, which was an indicator of promise for the rehabilitative process. The court also noted that the respondent had an alcohol problem that would need to be addressed if he was to be successfully rehabilitated.

The final orders of the court were that the appeal was dismissed. The judges agreed with Justice Thomas that the appeal should be dismissed and with his reasons. The court held that the facts suggested that the respondent had an alcohol problem which would need to be addressed if he was to be successfully rehabilitated.

Orders