R v SAR

Case [2005] QCA 426 18 November 2005

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SUPREME COURT OF QUEENSLAND

CITATION:

R v SAR [2005] QCA 426

PARTIES:

R
v
SAR
(applicant/appellant)

FILE NO/S:

CA No 200 of 2005
DC No 3530 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

18 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

31 October 2005

JUDGES:

McMurdo P, Jerrard JA and Atkinson 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 against sentence      granted
2.   Appeal allowed
3.   Instead of the sentence of eight years imprisonment      on counts 1, 2 and 10, substitute a period of seven      years imprisonment
4.   Instead of the recommendation for post-prison      community based release after three years, substitute      a recommendation after two and a half years
5.   The sentence is otherwise confirmed

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 - SEXUAL OFFENCES - applicant pleaded guilty to an ex officio indictment containing two counts of unlawful sodomy with a circumstance of aggravation, seven counts of indecent treatment of a girl under 14 years and one count of maintaining a sexual relationship with a child under 12 years - sentenced to eight years imprisonment on the two sodomy counts and the maintaining count and to two years imprisonment on the remaining counts - recommendation for post-prison community based release after three years - complainants were applicant's stepdaughters - offending took place over a six year period - offending stopped when the applicant's wife discovered the applicant in the act of simulated intercourse with one of the complainants - no further offending before the applicant contacted police about 12 and a half years later - applicant told police he wanted to speak to them in relation to his stepdaughters and gave a recorded interview admitting the offences - offered to plead guilty to ex officio indictment within one month of contacting police - excellent work history - references suggesting that absent offending applicant was a useful community member - genuine remorse shown - applicant contends sentencing judge gave insufficient weight to the spontaneous and voluntary confession to the crimes in circumstances where his offending may never have been revealed but for his confession - applicant contends sentencing judge gave insufficient weight to the absence of re-offending for over 12 years - applicant contends sentencing judge gave insufficient weight to the maximum penalty at the time of the offending - applicant contends sentencing judge gave insufficient weight to the demonstrated remorse and early guilty plea to an ex officio indictment - whether sentence manifestly excessive

AB v The Queen (1999) 198 CLR 111, cited
R v Alexander [1986] CCA 137; CA No 119 of 1986, 28 July      1986, considered
R v D'Arcy [2001] QCA 325; (2001) 122 A Crim R 268,…

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 SAR

Details

AGLC: R v SAR [2005] QCA 426
Case: [2005] QCA 426
Decision Date: 18 November 2005

CaseChat Overview and Summary

The appellant was convicted of multiple sexual offences against his two stepdaughters, who were under 14 years of age at the time. The appellant was sentenced to eight years imprisonment on two counts of unlawful sodomy and one count of maintaining a sexual relationship with a child under 12 years. The appellant was also sentenced to two years imprisonment on seven counts of indecent treatment of a girl under 14 years. The appellant applied for leave to appeal against his sentence, arguing that the sentencing judge gave insufficient weight to various factors, including his spontaneous and voluntary confession, the absence of re-offending for over 12 years, the maximum penalty at the time of the offending, and his demonstrated remorse and early guilty plea. The Court of Appeal considered the arguments and found that the sentence was manifestly excessive.

The legal issues before the Court of Appeal were whether the sentence was manifestly excessive and whether the sentencing judge gave insufficient weight to certain factors. The Court of Appeal considered the principles of sentencing in relation to sexual offences and the relevant authorities. The Court of Appeal found that the sentencing judge did give weight to the relevant factors but that the sentence was still manifestly excessive.

The Court of Appeal allowed the appeal against sentence and substituted a sentence of seven years imprisonment on counts 1, 2 and 10, and a recommendation for post-prison community based release after two and a half years. The Court of Appeal confirmed the sentence on the remaining counts.

The Court of Appeal granted the appellant leave to appeal against his sentence and allowed the appeal. The Court of Appeal substituted a sentence of seven years imprisonment on counts 1, 2 and 10, and a recommendation for post-prison community based release after two and a half years. The Court of Appeal confirmed the sentence on the remaining counts.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed

3. Instead of the sentence of eight years imprisonment on counts 1, 2 and 10, substitute a period of seven years imprisonment

4. Instead of the recommendation for post-prison community based release after three years, substitute a recommendation after two and a half years

5. The sentence is otherwise confirmed

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 SAR [2005] QCA 426

Most Recent Citation

R v AAI [2009] QCA 253

Cases Citing This Decision

R v FBG [2024] QCA 131
Citation 1 (Para 21)

…d to demonstrate that the sentence imposed on the applicant is manifestly excessive including R v MBC [2008] QCA 263; R v PAK [2010] QCA 187; R v SAR [2005] QCA 426; R v GAE ex-parte Attorney-General (Qld) [2008] QCA 128.…
R v Lawton [2021] QCA 272
Citation 2 (Para 4)

…with the aftermath of the applicant's serious breach of trust which has tarnished their childhood and their lives.” (Citations omitted.) [22][2005] QCA 426. [23] R v SAR [2005] QCA 426 at [9]-[11]. [24] R v SAR [2005] QCA 426 at [14]-[15].…
R v CCK [2019] QCA 237
Citation 3 (Para 13)

…The applicant’s counsel relied on R v S [1998] QCA 318, R v TWB [2001] QCA 111, R v B [2003] QCA 68 and R v SAR [2005] QCA 426 as comparable authorities. The applicant’s counsel had submitted for an effective sentence of imprisonment between seven and eight years with parole eligibility at about one-third of the…
R v HBT [2018] QCA 227
Citation 4 (Para 3)

…) [2003] QCA 134; R v Young; ex parte Attorney-General (Qld) (2002) 135 A Crim R 253; [2002] QCA 474. [98] R v BAO [2004] QCA 445 and R v SAR [2005] QCA 426; R v Walden [2010] QCA 13, R v PAK [2010] QCA 187 and R v W [1998] QCA 343 were held to be of no use: [55]-[56].…
R v BCA [2011] QCA 278
Citation 5 (Para 1)

…The applicant referred to R v PAK ,[17] R v BAO ,[18] R v SAR ,[19] R v Walden [20] and R v W .[21] [17][2010] QCA 187. [18][2004] QCA 445. [19][2005] QCA 426. [20][2010] QCA 13. [21][1998] QCA 343.…
R v Hav [2009] QCA 259
Citation 6 (Para 1)

…l under 14 years. After a plea of guilty, he was sentenced to a term of imprisonment of eight years on each of the sodomy and maintaining counts. [12][2005] QCA 426.…
R v AAI [2009] QCA 253
Citation 7 (Para 1)

…police and his subsequent rehabilitation in the intervening years was a feature which operated to reduce his sentence from eight years to seven. [19][2005] QCA 426.…

See all citing cases →

Cases Cited

R v D'Arcy [2001] QCA 325
Citation 1 (Para 1)

…factor in sentencing: Ryan v The Queen ,[9] R v Law; ex parte A‑G (Qld) [10] and R v D'Arcy .[11] [9](2001) 206 CLR 267. [10][1996] 2 Qd R 63. [11][2001] QCA 325; (2001) 122 A Crim R 268, [134], [162].…
Ryan v The Queen [2001] HCA 21
Citation 2

…, considered R v Main [1993] QCA 408; CA No 148 of 1993, 27 October 1993, considered R v Mason [1993] QCA 448; CA No 169 of 1993, 23 July 1993, cited Ryan v The Queen (2001) 206 CLR 267, cited R v S [2001] QCA 54; CA No 238 of 2000, 21 February 2001, considered R v T; ex parte A-G (Qld) [2000] QCA 282; (2000) 113 A Crim R…
R v TWB [2001] QCA 111
Citation 3 (Para 1)

…he result that those cases in which sentences were imposed for offences of maintaining after 1997, for example R v TWB ,[1] are not comparable.[2] [1][2001] QCA 111; CA No 355 of 2000, 22 March 2001. [2]Despite the submission in the applicant's written outline that her Honour erred in taking into account cases wh…
R v S [2001] QCA 54
Citation 4 (Para 1)

…ld) [7] and R v S .[8] [5][1993] QCA 448; CA No 169 of 1993, 23 July 1993. [6](1999) 198 CLR 111, 155. [7][2000] QCA 282; (2000) 113 A Crim R 439. [8][2001] QCA 54; CA No 238 of 2000, 21 February 2001.…
R v T; ex parte [2000] QCA 282
Citation 5 (Para 1)

…] AB v The Queen ,[6] R v T; ex parte A-G (Qld) [7] and R v S .[8] [5][1993] QCA 448; CA No 169 of 1993, 23 July 1993. [6](1999) 198 CLR 111, 155. [7][2000] QCA 282; (2000) 113 A Crim R 439. [8][2001] QCA 54; CA No 238 of 2000, 21 February 2001.…
AB v The Queen [1999] HCA 46
Citation 6 (Para 1)

…ee for example R v Mason ,[5] AB v The Queen ,[6] R v T; ex parte A-G (Qld) [7] and R v S .[8] [5][1993] QCA 448; CA No 169 of 1993, 23 July 1993. [6](1999) 198 CLR 111, 155. [7][2000] QCA 282; (2000) 113 A Crim R 439. [8][2001] QCA 54; CA No 238 of 2000, 21 February 2001.…
R v Main [1993] QCA 408
Citation 7 (Para 1)

…opriate head sentence was five to six years imprisonment with an early recommendation for parole eligibility or suspension. [3][1996] 2 Qd R 63. [4][1993] QCA 408; CA No 148 of 1993, 27 October 1993.…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v SAR [2005] QCA 426
PARTIES:	R v SAR (applicant/appellant)
FILE NO/S:	CA No 200 of 2005 DC No 3530 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	18 November 2005
DELIVERED AT:	Brisbane
HEARING DATE:	31 October 2005
JUDGES:	McMurdo P, Jerrard JA and Atkinson 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 against sentence granted 2. Appeal allowed 3. Instead of the sentence of eight years imprisonment on counts 1, 2 and 10, substitute a period of seven years imprisonment 4. Instead of the recommendation for post-prison community based release after three years, substitute a recommendation after two and a half years 5. The sentence is otherwise confirmed
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 - SEXUAL OFFENCES - applicant pleaded guilty to an ex officio indictment containing two counts of unlawful sodomy with a circumstance of aggravation, seven counts of indecent treatment of a girl under 14 years and one count of maintaining a sexual relationship with a child under 12 years - sentenced to eight years imprisonment on the two sodomy counts and the maintaining count and to two years imprisonment on the remaining counts - recommendation for post-prison community based release after three years - complainants were applicant's stepdaughters - offending took place over a six year period - offending stopped when the applicant's wife discovered the applicant in the act of simulated intercourse with one of the complainants - no further offending before the applicant contacted police about 12 and a half years later - applicant told police he wanted to speak to them in relation to his stepdaughters and gave a recorded interview admitting the offences - offered to plead guilty to ex officio indictment within one month of contacting police - excellent work history - references suggesting that absent offending applicant was a useful community member - genuine remorse shown - applicant contends sentencing judge gave insufficient weight to the spontaneous and voluntary confession to the crimes in circumstances where his offending may never have been revealed but for his confession - applicant contends sentencing judge gave insufficient weight to the absence of re-offending for over 12 years - applicant contends sentencing judge gave insufficient weight to the maximum penalty at the time of the offending - applicant contends sentencing judge gave insufficient weight to the demonstrated remorse and early guilty plea to an ex officio indictment - whether sentence manifestly excessive AB v The Queen (1999) 198 CLR 111, cited R v Alexander [1986] CCA 137; CA No 119 of 1986, 28 July 1986, considered R v D'Arcy [2001] QCA 325; (2001) 122 A Crim R 268,…