R v SAH

[2004] QCA 329

SUPREME COURT OF QUEENSLAND

CITATION:

R v SAH [2004] QCA 329

PARTIES:

R
v
SAH
(applicant)

FILE NO/S:

CA No 184 of 2004
DC No 174 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

10 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

2 September 2004

JUDGES:

McPherson and Williams JJA and Holmes J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Grant leave to appeal

2.   Allow the appeal

3.   Set aside the sentence imposed at first instance, and in lieu thereof order that the applicant be imprisoned for a period of three years to be suspended after serving 12 months with an operational period of three years

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant convicted of rape – where applicant inserted finger into anus of three year old boy who was in his care – where sentenced to five years imprisonment with a recommendation for post-prison community based release after 18 months – where applicant has criminal history – where applicant 19 years old when offence was committed – where plea of guilty – whether sentence imposed was manifestly excessive

R v C; ex parte A-G (Qld) [2003] QCA 510; CA No 328 of 2003, 13 November 2003, cited
R v K [2003] QCA 521; CA No 290 of 2003, 20 November 2003, cited
R v M [2003] QCA 443; CA No 114 of 2003 and CA No 276 of 2003, 17 October 2003, referred to
R v Richardson [2000] QCA 166; CA No 18 of 2000, 8 May 2000, cited

COUNSEL:

K M McGinness for the applicant
R G Martin for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. McPHERSON JA:  I agree, but I confess without marked enthusiasm, in the reasons and the orders proposed by Williams JA.  The appeal should be allowed to the extent stated by his Honour in those reasons.

1. WILLIAMS JA:  The applicant seeks leave to appeal against a sentence of five years imprisonment with a recommendation for post-prison community based release after 18 months following on his plea of guilty to a count of rape.

1. On a date unknown between 30 June and 11 August 2002 the applicant inserted a finger or fingers into the anus of a three year old boy who was then in his care.  The applicant was the partner at the time of the boy’s mother.  She had been admitted to hospital and the applicant had care of the boy and his half sister during that period.  In consequence the applicant was in a position of trust with respect to the particularly young boy.

1. The boy complained to his mother during a visit to the hospital that “[SAH] naughty, [SAH] hurt me”.  Later the…