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R v Tahiraj

R v Tahiraj

Case [2014] QCA 353 19 December 2014

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Tahiraj [2014] QCA 353

PARTIES:

R
v
TAHIRAJ, Luan
(appellant/applicant)

FILE NO/S:

CA No 175 of 2013
CA No 212 of 2013
SC No 253 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 December 2014

DELIVERED AT:

Brisbane

HEARING DATE:

2 September 2014

JUDGES:

Margaret McMurdo P and Fraser JA and Alan Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.The appeal against conviction is dismissed.

2.Grant the application for leave to appeal.

3.Allow the appeal against sentence in respect of counts 1, 2, 3 and 6.

4.Set aside the sentences imposed below on counts 1, 2, 3 and 6 and instead order that:

(i) for three years to commence on 20 August 2013;on each of counts 1 and 2 the appellant is imprisoned

(ii)on count 3 the appellant is imprisoned for three years to commence at the end of the sentences for counts 1 and 2; and

(iii)on count 6 the appellant is imprisoned for two years to commence at the end of the sentence for count 3.

5.The declaration that the presentence custody be time already served under the sentences imposed for counts 6, 4, 5 and 7 is vacated.

6.Instead it is declared that pursuant to s 159A Penalties and Sentences Act was held in presentence custody for 71 days 1992 (Qld) the appellant         2013 and 20 August 2013.This Court declares the under the sentences imposed for counts 1, 2, 4, 5 and 7.whole of those terms are imprisonment already served between 8 April 2009 and 9 April 2009, and 12 June

7.In respect of all other counts a non-parole period of four years is fixed.

8. and consequences of fixing that non-parole period be handed to the appellant in writing forthwith and a copy thereof marked "Explanation" for identification.The Court directs that an explanation of the purpose

9.The sentence imposed below is otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – OF COUNTS – BY STATUTE – SAME FACTS OR SERIES OF OFFENCES OF SAME OR SIMILAR CHARACTER – where the appellant was convicted after trial of two counts of using a carriage service to procure a person under 16 (counts 1 and 6); unauthorised access to a computer with intent (count 2); using a carriage service to make child pornography material available (count 3); using a carriage service to access child pornography material (count 4); using a carriage service to access child abuse material (count 5); and knowingly possessing child exploitation material (count 7) – where the appellant befriended a 13 year old girl (A) on the website "Vampire Freaks" – where A and the appellant communicated via MSN Messenger – where the appellant sent A a program over MSN Messenger which A attempted to download – where the appellant used this program to…

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 Tahiraj

Details

AGLC: R v Tahiraj [2014] QCA 353
Case: [2014] QCA 353
Decision Date: 19 December 2014

CaseChat Overview and Summary

The appellant, Tahiraj, was convicted by a jury of seven counts relating to the use of a carriage service to procure a person under 16, unauthorised access to a computer with intent, making and accessing child pornography and abuse material, and possessing child exploitation material. The appellant was sentenced to an effective term of 12 years imprisonment. The appellant appealed against his conviction and sentence. In relation to the conviction, the appellant argued that the trial judge erred by joining certain counts in the indictment, that the joinder resulted in a substantial miscarriage of justice, and that the trial judge gave inadequate directions to the jury regarding the evidence. In relation to the sentence, the appellant argued that the sentence was manifestly excessive.

The court considered whether the trial judge erred by joining the counts in the indictment, whether this resulted in a substantial miscarriage of justice, and whether the trial judge gave inadequate directions to the jury. The court held that the trial judge did not err in joining the counts as they were based on the same facts or series of offences of the same or similar character. The court held that the trial judge gave adequate directions to the jury and that the appellant's failure to request further directions meant that the issue could not be raised on appeal. The court dismissed the appeal against conviction. The court then considered whether the sentence was manifestly excessive. The court held that the sentence was not manifestly excessive but was unduly lenient in respect of certain counts. The court allowed the appeal against sentence in respect of counts 1, 2, 3 and 6 and ordered new sentences.

The Court dismissed the appeal against conviction and allowed the appeal against sentence in respect of counts 1, 2, 3 and 6. The Court set aside the sentences imposed below on counts 1, 2, 3 and 6 and instead ordered new sentences. The Court vacated the declaration that the presentence custody be time already served under the sentences imposed for counts 6, 4, 5 and 7 and made a new declaration. The Court fixed a non-parole period of four years in respect of all other counts and directed that an explanation of the purpose and consequences of fixing that non-parole period be handed to the appellant in writing forthwith. The Court confirmed the sentence imposed below in all other respects.

Orders

Orders of the court

1.The appeal against conviction is dismissed.

2.Grant the application for leave to appeal.

3.Allow the appeal against sentence in respect of counts 1, 2, 3 and 6.

4.Set aside the sentences imposed below on counts 1, 2, 3 and 6 and instead order that:

(i) for three years to commence on 20 August 2013;on each of counts 1 and 2 the appellant is imprisoned

(ii)on count 3 the appellant is imprisoned for three years to commence at the end of the sentences for counts 1 and 2; and

(iii)on count 6 the appellant is imprisoned for two years to commence at the end of the sentence for count 3.

5.The declaration that the presentence custody be time already served under the sentences imposed for counts 6, 4, 5 and 7 is vacated.

6.Instead it is declared that pursuant to s 159A Penalties and Sentences Act was held in presentence custody for 71 days 1992 (Qld) the appellant 2013 and 20 August 2013.This Court declares the under the sentences imposed for counts 1, 2, 4, 5 and 7.whole of those terms are imprisonment already served between 8 April 2009 and 9 April 2009, and 12 June

7.In respect of all other counts a non-parole period of four years is fixed.

8. and consequences of fixing that non-parole period be handed to the appellant in writing forthwith and a copy thereof marked "Explanation" for identification.The Court directs that an explanation of the purpose

9.The sentence imposed below 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.

Citations

AGLC Citation

R v Tahiraj [2014] QCA 353

Most Recent Citation

DPP (Cth) v Haynes [2017] VSCA 79

Cases citing this decision · 4 of 4 shown

R v Douglas
[2019] QCA 215 Para 11

…ussed with counsel, as occurred in this case, to ensure avoidance of a miscarriage of justice. [142] R v Robinson [2010] QCA 377 at [51]; R v Tahiraj [2014] QCA 353 at [87]. See also R v Clarke [2005] QCA 483 at [53].…
ADP v The State of Western Australia
[2018] WASCA 40 Para 5

…Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; (2010) 26 VR 477. [7] R v Martin [2014] NSWCCA 283; (2014) 246 A Crim R 477. [8] R v Tahiraj [2014] QCA 353. [9] Taylor v The Queen [2015] TASCCA 7. [10] Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74; (2016) 50 VR 800. [11] R v Dundas [2017…
DPP (Cth) v Haynes
[2017] VSCA 79 Para 1

…s to an appropriate sentencing range for ‘engaging’ in sexual activity over the internet. [48][2014] VSCA 1 (‘ Chatterton ’). [49][2014] QCA 353 ( ‘Tahiraj ’).…
R v Brown; Ex parte
[2016] QCA 156 Para 26

…t the present offending was objectively more serious than in each of those cases. [1][2009] QCA 37. [2](2000) 115 A Crim R 456. [3][2014] QCA 346. [4][2014] QCA 353.…

View all 4 citing cases →

Cases cited in this decision · 11 of 11 shown

Barbaro v The Queen
[2014] HCA 2

…v The Queen (2014) 88 ALJR 372; [2014] HCA 2, cited BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47, cited De Jesus v The Queen (1986) 61 ALJR 1; (1986) 68 ALR 1; [1986] HCA 65, cited KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11, cited Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied Patel v Th…
Patel v The Queen
[2012] HCA 29

…v The Queen (2012) 247 CLR 531; [2012] HCA 29, cited R v Asplund (2010) 216 A Crim R 48; [2010] NSWCCA 316, cited R v BBG (2007) 174 A Crim R 86; [2007] QCA 275, cited R v Robinson [2010] QCA 377, cited Tector v The Queen (2008) 186 A Crim R 133; [2008] NSWCCA 151, cited Velevski v The Queen (2002) 76 ALJR 402;…
R v Robinson
[2010] QCA 377 Para 1

…z that someone may have maliciously hacked into the appellant's computer and committed the seven counts. [234][2002] HCA 4, [181]. [235]No 55.1. [236][2010] QCA 377. [237]Above, [51].…
R v Asplund
[2010] NSWCCA 316

…Asplund (2010) 216 A Crim R 48; [2010] NSWCCA 316, cited R v BBG (2007) 174 A Crim R 86; [2007] QCA 275, cited R v Robinson [2010] QCA 377, cited Tector v The Queen (2008) 186 A Crim R 133; [2008] NSWCCA 151, cited Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4, cited COUNSEL: P J Davis QC, with J R Jones, fo…
Tector v R
[2008] NSWCCA 151

…Queen (2008) 186 A Crim R 133; [2008] NSWCCA 151, cited Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4, cited COUNSEL: P J Davis QC, with J R Jones, for the appellant/applicant M J Copley QC for the respondent SOLICITORS: Potts Lawyers for the appellant/applicant Director of Public Prosecutions (Commonwealth…
R v BBG
[2007] QCA 275 Para 1

…s has not produced any unfairness amounting to a miscarriage of justice under s 668E(1). Grounds of appeal 1, 3 and 4 are not made out. [212] R v BBG [2007] QCA 275, [27]. [213]Exhibit T1328; Exhibit T1325; Exhibit T1408; Exhibit T1407.…
Velevski v The Queen
[2002] HCA 4

…151, cited Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4, cited COUNSEL: P J Davis QC, with J R Jones, for the appellant/applicant M J Copley QC for the respondent SOLICITORS: Potts Lawyers for the appellant/applicant Director of Public Prosecutions (Commonwealth) for the respondent…
KRM v The Queen
[2001] HCA 11

…v The Queen (2001) 206 CLR 221; [2001] HCA 11, cited Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29, cited R v Asplund (2010) 216 A Crim R 48; [2010] NSWCCA 316, cited R v BBG (2007) 174 A Crim R 86; [2007] QCA 275, cited R v Robinson [2010] QCA 377…
BRS v The Queen
[1997] HCA 47

…v The Queen (1997) 191 CLR 275; [1997] HCA 47, cited De Jesus v The Queen (1986) 61 ALJR 1; (1986) 68 ALR 1; [1986] HCA 65, cited KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11, cited Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29, cited R v Aspl…
Mill v The Queen
[1988] HCA 70

…v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29, cited R v Asplund (2010) 216 A Crim R 48; [2010] NSWCCA 316, cited R v BBG (2007) 174 A Crim R 86; [2007] QCA 275, cited R v Robinson [2010] QCA 377, cited Tector v The Queen (2008) 186 A Crim R 133; [2008…
De Jesus v The Queen
[1986] HCA 65

…86) 61 ALJR 1; (1986) 68 ALR 1; [1986] HCA 65, cited KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11, cited Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29, cited R v Asplund (2010) 216 A Crim R 48; [2010] NSWCCA 316, cited R v BBG (2007) 174 A Cri…

Legislation cited in this decision · 5

Evidence Act 1977 (Qld)
21A 2 mentions (from Para 2)
Penalties and Sentences Act 1992 (Qld)
159A 2 mentions
Crimes Act 1914 (Cth)
1 mention (from Para 1)
Criminal Code Act 1899 (Qld)
1 mention (from Para 1)
Criminal Code Act 1995 (Cth)
1 mention (from Para 1)

CITATION:	R v Tahiraj [2014] QCA 353
PARTIES:	R v TAHIRAJ, Luan (appellant/applicant)
FILE NO/S:	CA No 175 of 2013 CA No 212 of 2013 SC No 253 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	19 December 2014
DELIVERED AT:	Brisbane
HEARING DATE:	2 September 2014
JUDGES:	Margaret McMurdo P and Fraser JA and Alan Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1.The appeal against conviction is dismissed. 2.Grant the application for leave to appeal. 3.Allow the appeal against sentence in respect of counts 1, 2, 3 and 6. 4.Set aside the sentences imposed below on counts 1, 2, 3 and 6 and instead order that: (i) for three years to commence on 20 August 2013;on each of counts 1 and 2 the appellant is imprisoned (ii)on count 3 the appellant is imprisoned for three years to commence at the end of the sentences for counts 1 and 2; and (iii)on count 6 the appellant is imprisoned for two years to commence at the end of the sentence for count 3. 5.The declaration that the presentence custody be time already served under the sentences imposed for counts 6, 4, 5 and 7 is vacated. 6.Instead it is declared that pursuant to s 159A Penalties and Sentences Act was held in presentence custody for 71 days 1992 (Qld) the appellant 2013 and 20 August 2013.This Court declares the under the sentences imposed for counts 1, 2, 4, 5 and 7.whole of those terms are imprisonment already served between 8 April 2009 and 9 April 2009, and 12 June 7.In respect of all other counts a non-parole period of four years is fixed. 8. and consequences of fixing that non-parole period be handed to the appellant in writing forthwith and a copy thereof marked "Explanation" for identification.The Court directs that an explanation of the purpose 9.The sentence imposed below is otherwise confirmed.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – OF COUNTS – BY STATUTE – SAME FACTS OR SERIES OF OFFENCES OF SAME OR SIMILAR CHARACTER – where the appellant was convicted after trial of two counts of using a carriage service to procure a person under 16 (counts 1 and 6); unauthorised access to a computer with intent (count 2); using a carriage service to make child pornography material available (count 3); using a carriage service to access child pornography material (count 4); using a carriage service to access child abuse material (count 5); and knowingly possessing child exploitation material (count 7) – where the appellant befriended a 13 year old girl (A) on the website "Vampire Freaks" – where A and the appellant communicated via MSN Messenger – where the appellant sent A a program over MSN Messenger which A attempted to download – where the appellant used this program to…