R v TAK - [2018] QCA 333

SUPREME COURT OF QUEENSLAND

CITATION:

R v TAK [2018] QCA 333

PARTIES:

R
v
TAK
(applicant)

FILE NO/S:

CA No 231 of 2018
DC No 1864 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 22 August 2018 (Reid DCJ)

DELIVERED ON:

4 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2018

JUDGES:

Gotterson and Philippides JJA and Boddice J

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to two counts of wilfully and unlawfully exposing a child under 16 to an indecent act and one count of procuring a person to witness an act of gross indecency without consent – where the complainant was the applicant’s stepdaughter – where the applicant was sentenced to two years imprisonment for the former counts and 18 months imprisonment for the latter count – where the sentences are to be suspended after eight months for an operational period of three years – where the offending did not involve any touching – whether the sentence is manifestly excessive

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 sentenced on an incorrect set of facts, gave “undue weight” to the victim impact statement, and attributed “insufficient weight” to the applicant having himself been a victim of sexual abuse – whether the learned sentencing judge failed to properly exercise the sentencing discretion

Penalties and Sentences Act 1992 (Qld), s 9(2), s 9(4), s 9(6)

R v GAW[2015] QCA 166, considered
R v Goodall[2013] QCA 72, considered
R v GZ[2007] QCA 225, considered
R v Porter; Ex parte Attorney-General (Qld)[2009] QCA 353, considered
R v Tootell; Ex parte Attorney General(Qld)[2012] QCA 273, considered

COUNSEL:

B J Peters (sol) for the applicant
C N Marco for the respondent

SOLICITORS:

Brisbane Criminal Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: The applicant, TAK, pleaded guilty to counts of wilfully and unlawfully exposing a child under 16 years of age to an indecent act in September 2005 at Fraser Island (Count 1) and again in November 2005 at Chermside West (Count 2). This offending was against s 210(1)(d) of the Criminal Code (Qld). The complainant was then 15 years of age. She was the applicant’s stepdaughter. A third count (Count 3) to which the applicant also pleaded guilty, alleged an offence against s 352(1)(b)(ii) of the Code in that the applicant in January 2010 at Chermside West procured the same complainant without her consent, to witness an act of gross indecency which he committed.
The pleas were entered in the District Court at Brisbane on 22 August 2018. A sentence hearing…

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 TAK

Details

AGLC: R v TAK [2018] QCA 333
Case: [2018] QCA 333
Decision Date: 4 December 2018

CaseChat Overview and Summary

The applicant, TAK, was found guilty of exposing his stepdaughter to indecent acts and procuring a person to witness an act of gross indecency without consent. TAK was sentenced to two years imprisonment for the former counts and 18 months for the latter, with both sentences to be suspended after eight months for an operational period of three years. TAK appealed against the severity of the sentence, arguing that it was manifestly excessive, and that the sentencing judge erred in their consideration of the facts and the impact of the victim impact statement.

The court had to determine whether the sentence imposed was manifestly excessive, and if the sentencing judge had exercised their discretion correctly by considering the appropriate facts and giving proper weight to the victim impact statement and the applicant’s history of being a victim of sexual abuse. The court considered the nature and severity of the offences, the impact on the victim, and the principles of sentencing relevant to the case.

In dismissing the appeal, the court found that the sentence was not manifestly excessive and that the sentencing judge had properly exercised their discretion. The court determined that the sentence was appropriate given the gravity of the offences and the need to protect the community and deter similar conduct. The court also found that the sentencing judge had appropriately weighed the victim impact statement and the applicant’s history of being a victim of sexual abuse.

The court refused the application for leave to appeal against the sentence.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

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 TAK [2018] QCA 333
PARTIES:	R v TAK (applicant)
FILE NO/S:	CA No 231 of 2018 DC No 1864 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 22 August 2018 (Reid DCJ)
DELIVERED ON:	4 December 2018
DELIVERED AT:	Brisbane
HEARING DATE:	22 November 2018
JUDGES:	Gotterson and Philippides JJA and Boddice J
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to two counts of wilfully and unlawfully exposing a child under 16 to an indecent act and one count of procuring a person to witness an act of gross indecency without consent – where the complainant was the applicant’s stepdaughter – where the applicant was sentenced to two years imprisonment for the former counts and 18 months imprisonment for the latter count – where the sentences are to be suspended after eight months for an operational period of three years – where the offending did not involve any touching – whether the sentence is manifestly excessive 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 sentenced on an incorrect set of facts, gave “undue weight” to the victim impact statement, and attributed “insufficient weight” to the applicant having himself been a victim of sexual abuse – whether the learned sentencing judge failed to properly exercise the sentencing discretion Penalties and Sentences Act 1992 (Qld), s 9(2), s 9(4), s 9(6) R v GAW[2015] QCA 166, considered R v Goodall[2013] QCA 72, considered R v GZ[2007] QCA 225, considered R v Porter; Ex parte Attorney-General (Qld)[2009] QCA 353, considered R v Tootell; Ex parte Attorney General(Qld)[2012] QCA 273, considered
COUNSEL:	B J Peters (sol) for the applicant C N Marco for the respondent
SOLICITORS:	Brisbane Criminal Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent