R v SAS

[2005] QCA 442

SUPREME COURT OF QUEENSLAND

CITATION:

R v SAS [2005] QCA 442

PARTIES:

R
v
SAS
(applicant/appellant)

FILE NO/S:

CA No 217 of 2005
DC No 482 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

2 December 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, McMurdo P and Jerrard JA concurring as to the orders made, Atkinson J dissenting

ORDERS:

1.    Grant leave to appeal against sentence
2.    Allow the appeal and substitute a sentence of eight       years imprisonment with a recommendation for post-      prison community based release after three and a half       years

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 convicted of two counts of rape, three counts of indecently dealing with a child under 16, and one count of deprivation of liberty – sentence of nine years imposed on each rape count with lesser concurrent sentences for the other offences – recommendation for post-prison community based release after four years – applicant threatened 14 year old complainant with a pool cue – applicant detained and raped complainant after he knew that she had called the police – whether sentencing judge gave adequate weight to a late guilty plea – whether the sentence was manifestly excessive in comparison with similar cases

R v Basic [2000] QCA 155; (2000) 115 A Crim R 456, considered
R v Faifuaina [2004] QCA 262; CA No 119 of 2004, 29 July 2004, considered
R v Stirling [1996] QCA 342; CA No 205 of 1996, 17 September 1996, considered
R v Williams [2002] QCA 211; CA No 361 of 2001, 21 June 2002, applied

COUNSEL:

C W Heaton for the applicant/appellant
P F Rutledge for the respondent

SOLICITORS:

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

1. McMURDO P:  I agree with Jerrard JA's reasons and proposed orders.

1. JERRARD JA:  On 29 July 2005 SAS pleaded guilty to three counts of indecent treatment of a child under the age of 16 years, one count of deprivation of liberty, and two counts of rape.  On each count of rape he was sentenced to nine years imprisonment, with a recommendation that he be considered for release on post-prison community based release (“parole”) after four years, and to concurrent terms of five years imprisonment on each of the counts of indecent treatment and three years imprisonment on the count of deprivation of liberty.  The learned sentencing judge declared that 100 days of pre-sentence custody counted as time served under the sentence.  SAS has applied for leave to appeal against the sentences for rape on the ground that they are manifestly excessive in all the circumstances. 

Prior…