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R v Stable (a pseudonym)

R v Stable (a pseudonym)

Case [2020] QCA 270 4 December 2020

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Stable (a pseudonym) [2020] QCA 270

PARTIES:

R
v
STABLE (a pseudonym)
(applicant)

FILE NO/S:

CA No 326 of 2019
DC No 50 of 2019
DC No 87 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maryborough – Date of Sentence: 21 November 2019 (Reid DCJ)

DELIVERED ON:

4 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2020

JUDGES:

Sofronoff P and Fraser and Philippides JJA

ORDER:

Leave to appeal is granted and the disposition of the appeal is adjourned to a date to be fixed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to 20 offences – where the offences were committed over three periods of time – where during the first period, between 1985 and 1989, the applicant committed three sexual offences against his daughter, who was then a child – where during the second period, from January 2012 to December 2014, the applicant committed four offences against two of his granddaughters – where during the final period, between September 2016 and October 2017, he committed twelve sexual offences against his daughter and all three of his granddaughters – where there was also an isolated sexual offence which he committed against his daughter between 31 July 2008 and 1 January 2009 – where circumstances of aggravation were alleged, including the applicant’s knowledge that the victims were the applicant’s lineal descendants, that the victims were under the applicant’s care and that the offences were domestic violence offences – where on indictment 1, the sentences for counts 1, 2 and 3 were to run concurrently – where the sentences for counts 4 and 5 were to be served concurrently with each other but cumulatively upon the sentences for counts 1, 2 and 3 – where all sentences for the offences on indictment 2 were to be served concurrently with each other but cumulatively upon the sentences imposed on indictment 1 – where the result was an accumulated sentence of 12 years – where the learned sentencing judge opined that the total term of 12 years’ imprisonment would engage the Serious Violent Offence provisions of the Penalties and Sentences Act 1992 (Qld) which would require the applicant to serve 80 per cent of his term of imprisonment before becoming eligible for parole – where not all of the offences for which the applicant was sentenced were scheduled offences – whether the Serious Violent Offence provisions were erroneously effected in the Verdict and Judgment Record – whether the sentence should be set aside

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant contends that the learned sentencing judge impermissibly took into account certain uncharged acts that were included in the Statement of Facts –whether the learned sentencing judge acted on the wrong…

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 Stable (a pseudonym)

Details

AGLC: R v Stable (a pseudonym) [2020] QCA 270
Case: [2020] QCA 270
Decision Date: 4 December 2020

CaseChat Overview and Summary

The applicant, Stable, appealed against his sentence in the Court of Appeal, challenging the legality of a 12-year imprisonment sentence imposed on him for multiple sexual offences committed against his daughter and granddaughters. The appeal addressed several key legal issues, including whether the sentencing judge had acted on the wrong principle by considering uncharged acts, whether the Serious Violent Offence provisions of the Penalties and Sentences Act 1992 (Qld) were correctly applied, and whether the sentence was manifestly excessive or inadequate. The Court considered whether the sentencing judge had appropriately factored in the changes to the legislative framework regarding sentencing for sexual offences against children, including the amendments introduced by a joint Queensland Crime Commission and Queensland Police Service inquiry. The Court also examined whether the sentence imposed was disproportionate given the legislative changes and the nature of the offences.

The Court of Appeal held that the applicant's appeal against sentence should proceed, and granted leave to appeal. The Court found that the sentencing judge had indeed acted on the wrong principle by considering uncharged acts and that the Serious Violent Offence provisions were incorrectly applied. Additionally, the Court determined that the sentence was manifestly excessive in light of the legislative changes that had occurred, particularly those aimed at increasing penalties for sexual offences against children and focusing on the impact on child victims. The Court decided that it might exercise its power under s 668E(3) of the Code to increase the sentence, indicating that the respondent intended to argue for a 12-year sentence. The Court also considered whether the applicant should be given an opportunity to abandon his appeal.

The Court of Appeal granted leave to appeal and adjourned the disposition of the appeal to a future date. This decision provided the applicant with the opportunity to argue his case fully, including the potential for the Court to adjust the sentence in light of the identified errors and the legislative changes.

Orders

Orders of the court

Leave to appeal is granted and the disposition of the appeal is adjourned to a date to be fixed.

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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Citations

R v Stable (a pseudonym) [2020] QCA 270

Most Recent Citation

R v Ccu [2022] QCA 92

Cases Citing This Decision

R v CCU [2022] QCA 92
Citation 1

…QCA 137 , followed R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited R v Stable (a pseudonym) (2020) 6 QR 617; [2020] QCA 270 , cited R v Tout [2012] QCA 296 , cited COUNSEL: J R Hunter QC for the applicant C W Wallis for the respondent SOLICITORS: Rennick Lawyers for the applicant Director of Public Prosecution…

See all citing cases →

Cases Cited

R v Sunderland [2020] QCA 156
Citation 1 (Para 3)

…t 192 per Lee J. [36]Section 24 of the Criminal Law Amendment Act 2000 (Qld). [37] P , supra , at 205 lines 14 to 20 and see R v Sunderland [2020] QCA 156 at [44]. [38]See R v Makary [2019] 2 Qd R 528; [2018] QCA 258 at [46]-[49].…
R v EO [2019] QCA 145
Citation 2 (Para 12)

…, R v EO and R v PAQ .[15] [8][1998] 2 Qd R 191. [9][1999] QCA 41. [10][2000] QCA 27. [11][2005] QCA 359. [12][2006] QCA 354. [13][2014] QCA 20. [14][2019] QCA 145. [15][2014] QCA 11.…
R v Makary [2018] QCA 258
Citation 3 (Para 3)

…Act 2000 (Qld). [37] P , supra , at 205 lines 14 to 20 and see R v Sunderland [2020] QCA 156 at [44]. [38]See R v Makary [2019] 2 Qd R 528; [2018] QCA 258 at [46]-[49].…
R v Kilic [2016] HCA 48
Citation 4

…, distinguished R v Kilic (2016) 259 CLR 256; [2016] HCA 48, considered R v LA; Ex parte Attorney-General (Qld) [2000] QCA 123, considered R v Lacey; Ex parte Attorney-General (Qld) (2009) 197 A Crim R 399; [2009] QCA 274, cited R v LS [2006] QCA 354, distinguished R v MAO; Ex parte Attorney-General (Qld) (2006)…
Kentwell v The Queen [2014] HCA 37
Citation 5 (Para 10)

…the Court has to consider whether some other sentence should have been passed.[7] [7]Section 668E(3) of the Code ; Kentwell v The Queen (2014) 252 CLR 601 at [42].…
R v AAR [2014] QCA 20
Citation 6 (Para 12)

…relied upon R v LS , R v EO and R v PAQ .[15] [8][1998] 2 Qd R 191. [9][1999] QCA 41. [10][2000] QCA 27. [11][2005] QCA 359. [12][2006] QCA 354. [13][2014] QCA 20. [14][2019] QCA 145. [15][2014] QCA 11.…
R v Paq [2014] QCA 11
Citation 7 (Para 12)

…Q .[15] [8][1998] 2 Qd R 191. [9][1999] QCA 41. [10][2000] QCA 27. [11][2005] QCA 359. [12][2006] QCA 354. [13][2014] QCA 20. [14][2019] QCA 145. [15][2014] QCA 11.…
R v CBI [2013] QCA 186
Citation 8 (Para 26)

…e expected that these changes would produce a general increase in the severity of sentences, rendering the earlier cases of little utility. [24][2013] QCA 186 at [19]…
Elias v The Queen [2013] HCA 31
Citation 9 (Para 25)

…v The Queen [No 2] (1988) 164 CLR 465; Bensegger v The Queen [1979] WAR 65. [20](2005) 228 CLR 357 at [30]-[31]; see also Elias v The Queen (2013) 248 CLR 483. [21] Supra , at [80]. [22]An example of the application of this principle is R v AB (No 2) (2008) 18 VR 391; [2008] VSCA 107 at [40]-[41] per Warren CJ, Maxwe…
R v Lacey; ex parte Attorney-General [2009] QCA 274
Citation 10 (Para 10)

…[2002] QCA 414. [49](2006) 166 A Crim R 588; [2006] QCA 477. [50][2006] QCA 477 at [15] per de Jersey CJ. [51] R v Lacey; ex parte A-G (Qld) [2009] QCA 274 at [151]-[152] per de Jersey CJ, Keane, Muir and Chesterman JJA and at [270] per McMurdo P. The High Court allowed an appeal against the judgment of the Cour…
R v RAD [2008] QCA 305
Citation 11 (Para 8)

…ecutor relied upon the authority of R v PAC [46] and R v RAD [47] to sustain the sentences. [44] Supra . [45] Supra , at [5]. [46][2006] QCA 327. [47][2008] QCA 305.…
R v Thomas (No 4) [2008] VSCA 107
Citation 12 (Para 25)

…The Queen (2013) 248 CLR 483. [21] Supra , at [80]. [22]An example of the application of this principle is R v AB (No 2) (2008) 18 VR 391; [2008] VSCA 107 at [40]-[41] per Warren CJ, Maxwell P and Redlich JA. [23] Sentencing [1988] ALRC 44 at [37].…
R v AB (No 2) [2008] VSCA 39
Citation 13 (Para 25)

…; see also Elias v The Queen (2013) 248 CLR 483. [21] Supra , at [80]. [22]An example of the application of this principle is R v AB (No 2) (2008) 18 VR 391; [2008] VSCA 107 at [40]-[41] per Warren CJ, Maxwell P and Redlich JA. [23] Sentencing [1988] ALRC 44 at [37].…
R v Quick; ex parte A-G (Qld) [2006] QCA 477
Citation 14 (Para 10)

…way to the present case and will be discussed further below. [48] R v Craig; ex parte A-G (Qld) [2002] QCA 414. [49](2006) 166 A Crim R 588; [2006] QCA 477. [50][2006] QCA 477 at [15] per de Jersey CJ. [51] R v Lacey; ex parte A-G (Qld) [2009] QCA 274 at [151]-[152] per de Jersey CJ, Keane, Muir and Chesterman J…
R v LS [2006] QCA 354
Citation 15 (Para 12)

…o, the applicant had relied upon R v LS , R v EO and R v PAQ .[15] [8][1998] 2 Qd R 191. [9][1999] QCA 41. [10][2000] QCA 27. [11][2005] QCA 359. [12][2006] QCA 354. [13][2014] QCA 20. [14][2019] QCA 145. [15][2014] QCA 11.…
R v PAC [2006] QCA 327
Citation 16 (Para 8)

…excessive. The prosecutor relied upon the authority of R v PAC [46] and R v RAD [47] to sustain the sentences. [44] Supra . [45] Supra , at [5]. [46][2006] QCA 327. [47][2008] QCA 305.…
R v Mao; ex parte [2006] QCA 99
Citation 17 (Para 11)

…ncreased in 2003. [52] R v P [2001] QCA 130; R v Schirmer [1995] QCA 242; R v SAQ [2002] QCA 221; R v M [1995] 394; R v Hamstead [1999] QCA 33. [53][2006] QCA 99.…
R v WN [2005] QCA 359
Citation 18 (Para 12)

…sentence hearing also, the applicant had relied upon R v LS , R v EO and R v PAQ .[15] [8][1998] 2 Qd R 191. [9][1999] QCA 41. [10][2000] QCA 27. [11][2005] QCA 359. [12][2006] QCA 354. [13][2014] QCA 20. [14][2019] QCA 145. [15][2014] QCA 11.…
Markarian v The Queen [2005] HCA 25
Citation 19

…ld) Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, considered Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, applied R v AAR [2014] QCA 20, distinguished R v D [1996] 1 Qd R 363; [1995] QCA 329, applied R v EO [2019] QCA 145, distinguished R v K [1999] QCA 41, distinguished R v Kilic (2016) 259 CL…
R v Craig; Exparte A-G (Qld) [2002] QCA 414
Citation 20 (Para 10)

…hree months. R v Quick is relevant in another way to the present case and will be discussed further below. [48] R v Craig; ex parte A-G (Qld) [2002] QCA 414. [49](2006) 166 A Crim R 588; [2006] QCA 477. [50][2006] QCA 477 at [15] per de Jersey CJ. [51] R v Lacey; ex parte A-G (Qld) [2009] QCA 274 at [151]-[152] p…
R v SAQ [2002] QCA 221
Citation 21 (Para 11)

…fences that were all committed before the maximum sentences were increased in 2003. [52] R v P [2001] QCA 130; R v Schirmer [1995] QCA 242; R v SAQ [2002] QCA 221; R v M [1995] 394; R v Hamstead [1999] QCA 33. [53][2006] QCA 99.…
R v P [2001] QCA 130
Citation 22 (Para 11)

…eferred to, and relied only upon, cases concerning offences that were all committed before the maximum sentences were increased in 2003. [52] R v P [2001] QCA 130; R v Schirmer [1995] QCA 242; R v SAQ [2002] QCA 221; R v M [1995] 394; R v Hamstead [1999] QCA 33. [53][2006] QCA 99.…
R v LA; Ex Parte A-G (Qld) [2000] QCA 123
Citation 23 (Para 16)

…ence to the statute, reflects the legislation that must be applied when sentencing offenders who have committed sexual offences against children. [57][2000] QCA 123.…
R v R [2000] QCA 27
Citation 24 (Para 12)

…able cases. At the sentence hearing also, the applicant had relied upon R v LS , R v EO and R v PAQ .[15] [8][1998] 2 Qd R 191. [9][1999] QCA 41. [10][2000] QCA 27. [11][2005] QCA 359. [12][2006] QCA 354. [13][2014] QCA 20. [14][2019] QCA 145. [15][2014] QCA 11.…
R v K [1999] QCA 41
Citation 25 (Para 12)

…v EO [14] as comparable cases. At the sentence hearing also, the applicant had relied upon R v LS , R v EO and R v PAQ .[15] [8][1998] 2 Qd R 191. [9][1999] QCA 41. [10][2000] QCA 27. [11][2005] QCA 359. [12][2006] QCA 354. [13][2014] QCA 20. [14][2019] QCA 145. [15][2014] QCA 11.…
R v Hamstead [1999] QCA 33
Citation 26 (Para 11)

…um sentences were increased in 2003. [52] R v P [2001] QCA 130; R v Schirmer [1995] QCA 242; R v SAQ [2002] QCA 221; R v M [1995] 394; R v Hamstead [1999] QCA 33. [53][2006] QCA 99.…
R v P [1997] QCA 453
Citation 27

…] QCA 99, considered R v P [1998] 2 Qd R 191; [1997] QCA 453, distinguished R v PAC [2006] QCA 327, distinguished R v PAQ [2014] QCA 11, distinguished R v Quick; Ex parte Attorney-General (Qld) (2006) 166 A Crim R 588; [2006] QCA 477, considered R v R [2000] QCA 27, distinguished R v RAD [2008] QCA 305, distingui…
R v D [1995] QCA 329
Citation 28

…CA 20, distinguished R v D [1996] 1 Qd R 363; [1995] QCA 329, applied R v EO [2019] QCA 145, distinguished R v K [1999] QCA 41, distinguished R v Kilic (2016) 259 CLR 256; [2016] HCA 48, considered R v LA; Ex parte Attorney-General (Qld) [2000] QCA 123, considered R v Lacey; Ex parte Attorney-General (Qld) (2009)…
R v Schirmer [1995] QCA 242
Citation 29 (Para 11)

…pon, cases concerning offences that were all committed before the maximum sentences were increased in 2003. [52] R v P [2001] QCA 130; R v Schirmer [1995] QCA 242; R v SAQ [2002] QCA 221; R v M [1995] 394; R v Hamstead [1999] QCA 33. [53][2006] QCA 99.…
Veen v The Queen (No 2) [1988] HCA 14
Citation 30 (Para 25)

…deterrence occurs as a result it is because the whole system of justice treats the offence more seriously.[23] [19] Veen v The Queen [No 2] (1988) 164 CLR 465; Bensegger v The Queen [1979] WAR 65. [20](2005) 228 CLR 357 at [30]-[31]; see also Elias v The Queen (2013) 248 CLR 483. [21] Supra , at [80]. [22]An example…
Neal v The Queen [1982] HCA 55
Citation 31

…nsidered Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, applied R v AAR [2014] QCA 20, distinguished R v D [1996] 1 Qd R 363; [1995] QCA 329, applied R v EO [2019] QCA 145, distinguished R v K [1999] QCA 41, distinguished R v Kilic (2016) 259 CLR 256; [2016] HCA 48, considered R v LA; Ex parte Attorney-Gene…

Legislation Cited

Corrective Services Act 2006 (Qld) 182(2)(a)
2 mentions (from Para 10)
Criminal Law Amendment Act 1997 (Qld) 210
2 mentions (from Para 14)
Criminal Law Amendment Act 2000 (Qld) 24
2 mentions (from Para 3)
Penalties and Sentences Act 1992 (Qld) 9(2)
2 mentions (from Para 10)
Sexual Offences (Protection of Children) Amendment Act 2003 (Qld)
1 mention (from Para 15)

CITATION:	R v Stable (a pseudonym) [2020] QCA 270
PARTIES:	R v STABLE (a pseudonym) (applicant)
FILE NO/S:	CA No 326 of 2019 DC No 50 of 2019 DC No 87 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maryborough – Date of Sentence: 21 November 2019 (Reid DCJ)
DELIVERED ON:	4 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	26 May 2020
JUDGES:	Sofronoff P and Fraser and Philippides JJA
ORDER:	Leave to appeal is granted and the disposition of the appeal is adjourned to a date to be fixed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to 20 offences – where the offences were committed over three periods of time – where during the first period, between 1985 and 1989, the applicant committed three sexual offences against his daughter, who was then a child – where during the second period, from January 2012 to December 2014, the applicant committed four offences against two of his granddaughters – where during the final period, between September 2016 and October 2017, he committed twelve sexual offences against his daughter and all three of his granddaughters – where there was also an isolated sexual offence which he committed against his daughter between 31 July 2008 and 1 January 2009 – where circumstances of aggravation were alleged, including the applicant’s knowledge that the victims were the applicant’s lineal descendants, that the victims were under the applicant’s care and that the offences were domestic violence offences – where on indictment 1, the sentences for counts 1, 2 and 3 were to run concurrently – where the sentences for counts 4 and 5 were to be served concurrently with each other but cumulatively upon the sentences for counts 1, 2 and 3 – where all sentences for the offences on indictment 2 were to be served concurrently with each other but cumulatively upon the sentences imposed on indictment 1 – where the result was an accumulated sentence of 12 years – where the learned sentencing judge opined that the total term of 12 years’ imprisonment would engage the Serious Violent Offence provisions of the Penalties and Sentences Act 1992 (Qld) which would require the applicant to serve 80 per cent of his term of imprisonment before becoming eligible for parole – where not all of the offences for which the applicant was sentenced were scheduled offences – whether the Serious Violent Offence provisions were erroneously effected in the Verdict and Judgment Record – whether the sentence should be set aside CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant contends that the learned sentencing judge impermissibly took into account certain uncharged acts that were included in the Statement of Facts –whether the learned sentencing judge acted on the wrong…