R v SAK - [2004] QCA 379

SUPREME COURT OF QUEENSLAND

CITATION:

R v SAK [2004] QCA 379

PARTIES:

R
v
SAK
(appellant/applicant)

FILE NO/S:

CA No 29 of 2004
CA No 34 of 2004
DC No 23 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

15 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

1 October 2004

JUDGES:

Williams and Jerrard JJA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Each of the appeals against convictions incurred on 27 June 2002, the application for leave to change the pleas entered on 14 October 2002, and the application for leave to appeal the sentences, is dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – PARTICULAR CASES –– where appellant pleaded guilty to four counts charging sexual offences committed against his step-daughter – where appellant sought to withdraw pleas of guilty on appeal on the basis that his pleas were based on false evidence – where the appellant filed affidavit in which the complainant step-daughter deposed that the appellant had not committed any sexual offences against her but at the hearing of the appeal repudiated the contents of her affidavit – whether pleas of guilty should be set aside

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – where appellant convicted after a trial of four counts charging sexual offences against his eldest step-daughter – where appellant claimed his convictions were based on false evidence – whether any basis for the appellant’s claim

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant convicted of four counts charging sexual offences against one step-daughter after a trial and four counts charging sexual offences against his other step-daughter on pleas of guilty – where both complainants children at time of offences - where applicant received head sentence of 11 years imprisonment with a declaration that he had been convicted of a serious violent offence – where no remorse - whether sentence manifestly excessive

R v Myers [2002] QCA 143; CA No 353 of 2001, 19 April 2002, cited
R v R [2000] QCA 279; CA No 126 of 2000, 14 July 2000, cited

R v SAG [2004] QCA 286; CA No 55 of 2004, 6 August 2004, cited

COUNSEL:

The appellant/applicant appeared on his own behalf
M J Copley for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: Given the evidence of P in this court there is no basis for the appellant’s claim that his convictions were based on false evidence.

I agree with all that is said in 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 SAK

Details

AGLC: R v SAK [2004] QCA 379
Case: [2004] QCA 379
Decision Date: 15 October 2004

CaseChat Overview and Summary

The appellant in the case, R v SAK, had pleaded guilty to four counts of sexual offences against his step-daughter. He subsequently sought to withdraw his pleas on the basis that they were based on false evidence. At the hearing of the appeal, the step-daughter repudiated the contents of her affidavit, in which she had deposed that the appellant had not committed any sexual offences against her. The court was required to decide whether the pleas of guilty should be set aside and whether the convictions were based on false evidence.

The court found that there was no basis for the appellant’s claim that his convictions were based on false evidence. The step-daughter's repudiation of her affidavit was deemed to be unreliable, and the court found that the appellant's pleas were voluntary and properly entered. The court held that the appellant's application to withdraw his pleas of guilty was an abuse of process and was dismissed. The appeal against the convictions was also dismissed.

In addition, the court considered whether the sentence imposed was manifestly excessive. The appellant was convicted of four counts of sexual offences against one step-daughter and four counts against another step-daughter, both of whom were children at the time of the offences. The appellant received a head sentence of 11 years imprisonment, with a declaration that he had been convicted of a serious violent offence and no remorse. The court found that the sentence was not manifestly excessive.

Each of the appeals against convictions incurred on 27 June 2002, the application for leave to change the pleas entered on 14 October 2002, and the application for leave to appeal the sentences, is dismissed.

Orders

Orders of the court

Each of the appeals against convictions incurred on 27 June 2002, the application for leave to change the pleas entered on 14 October 2002, and the application for leave to appeal the sentences, is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v SAK [2004] QCA 379
PARTIES:	R v SAK (appellant/applicant)
FILE NO/S:	CA No 29 of 2004 CA No 34 of 2004 DC No 23 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Bundaberg
DELIVERED ON:	15 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	1 October 2004
JUDGES:	Williams and Jerrard JJA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Each of the appeals against convictions incurred on 27 June 2002, the application for leave to change the pleas entered on 14 October 2002, and the application for leave to appeal the sentences, is dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – PARTICULAR CASES –– where appellant pleaded guilty to four counts charging sexual offences committed against his step-daughter – where appellant sought to withdraw pleas of guilty on appeal on the basis that his pleas were based on false evidence – where the appellant filed affidavit in which the complainant step-daughter deposed that the appellant had not committed any sexual offences against her but at the hearing of the appeal repudiated the contents of her affidavit – whether pleas of guilty should be set aside CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – where appellant convicted after a trial of four counts charging sexual offences against his eldest step-daughter – where appellant claimed his convictions were based on false evidence – whether any basis for the appellant’s claim CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant convicted of four counts charging sexual offences against one step-daughter after a trial and four counts charging sexual offences against his other step-daughter on pleas of guilty – where both complainants children at time of offences - where applicant received head sentence of 11 years imprisonment with a declaration that he had been convicted of a serious violent offence – where no remorse - whether sentence manifestly excessive R v Myers [2002] QCA 143; CA No 353 of 2001, 19 April 2002, cited R v R [2000] QCA 279; CA No 126 of 2000, 14 July 2000, cited R v SAG [2004] QCA 286; CA No 55 of 2004, 6 August 2004, cited
COUNSEL:	The appellant/applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The appellant/applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent