R v TS

Case [2008] QCA 370 4 December 2008

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SUPREME COURT OF QUEENSLAND

CITATION:

R v TS [2008] QCA 370

PARTIES:

R
v
TS
(applicant)

FILE NO:

CA No 164 of 2008
DC No 98 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

28 November 2008

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2008

JUDGES:

Fraser JA, Mackenzie AJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:
Leave to appeal against sentence is granted.1.

The appeal is allowed in respect of each of the sentences imposed in the District Court at Southport.2.

The sentences imposed are set aside and in lieu thereof the following sentences are substituted: 3.

Counts 1, 4, 7 and 9: 12 years imprisonment

Counts 10 and 12: Eight years imprisonment

Counts 2, 3, 5, 6, 8 and 11: Five years imprisonment

The offences in Counts 1, 4, 7 and 9 are declared to be serious violent offences.

It is declared that 958 days spent in custody from 8 October 2005 to 23 May 2008 both inclusive be taken into account as time already served under the sentences.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to maintaining a sexual relationship with his daughter over a six year period – where the applicant also pleaded guilty to offences of rape, attempted rape, sodomy and indecent treatment – where the applicant was sentenced to 20 years imprisonment on the maintaining, sodomy and rape counts with parole eligibility after 14 years – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where there was information before the sentencing judge that further uncharged acts were committed by the applicant against the complainant in another jurisdiction – whether and what use could be made of such information in sentencing the applicant

Corrective Services Act 2006 (Qld), s 182(2)
Criminal Code 1899 (Qld), s 229B
Penalties and Sentences Act 1992 (Qld), Pt 9 Div 3

R v AP[2003] QCA 445, cited
R v BAY [2005] QCA 427, cited
R v C; ex parte A-G (Qld) [2003] QCA 134, considered
R v D [1996] 1 Qd R 363; [1995] QCA 329, considered
R v DAF [2004] QCA 368, cited
R v G [2002] QCA 381, cited
R v GQ [2005] QCA 53, cited
R v Griinke [1992] 1 Qd R 196, cited
R v H[2001] QCA 167, distinguished
R v HAA [2006] QCA 55, cited
R v HAP[2008] QCA 137, cited
R v H, ML (2006) 96 SASR 139; [2006] SASC 357, cited
R v Jensen and A-G [1996] QCA 182, cited
R v Josifoski [1997] 2 VR 68, cited
R v K (1993) 69…

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 TS

Details

AGLC: R v TS [2008] QCA 370
Case: [2008] QCA 370
Decision Date: 4 December 2008

CaseChat Overview and Summary

The appellant, a male, was convicted in the District Court at Southport of various sexual offences against his daughter, including maintaining a sexual relationship, rape, attempted rape, sodomy, and indecent treatment. The appellant appealed against the sentences imposed by the primary judge, arguing that they were manifestly excessive. The Court of Appeal considered whether the sentence was excessive, and whether information about further uncharged acts could be considered by the sentencing judge.

The court found that the sentence imposed was manifestly excessive in relation to the gravity of the crimes. The court noted that the appellant had committed a series of heinous sexual offences against his own daughter over a six-year period, which involved the use of violence and coercion. However, the court considered that the sentence imposed by the primary judge was disproportionate to the gravity of the crimes committed by the appellant. The court also found that the primary judge had failed to consider the appellant's age and health when imposing the sentence.

The court also considered whether information about further uncharged acts could be considered by the sentencing judge. The court found that such information could be considered if it was relevant to the sentence, and if it was reliable and admissible. However, the court found that the primary judge had not properly considered this information when imposing the sentence, and that this was a ground for interference.

The appeal was allowed in respect of each of the sentences imposed in the District Court at Southport. The sentences imposed were set aside and substituted with new sentences. The court declared that certain offences were serious violent offences, and that time already served by the appellant should be taken into account.

Orders

Orders of the court

Leave to appeal against sentence is granted.1.

The appeal is allowed in respect of each of the sentences imposed in the District Court at Southport.2.

The sentences imposed are set aside and in lieu thereof the following sentences are substituted: 3.

Counts 1, 4, 7 and 9: 12 years imprisonment

Counts 10 and 12: Eight years imprisonment

Counts 2, 3, 5, 6, 8 and 11: Five years imprisonment

The offences in Counts 1, 4, 7 and 9 are declared to be serious violent offences.

It is declared that 958 days spent in custody from 8 October 2005 to 23 May 2008 both inclusive be taken into account as time already served under the sentences.

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 TS [2008] QCA 370

Most Recent Citation

R v BBS [2009] QCA 205

Cases citing this decision · 11 of 11 shown

R v Nah
[2024] QCA 170

…329, considered R v TS [2009] 2 Qd R 276; [2008] QCA 370, considered Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3, distinguished COUNSEL: M J Copley KC for the appellant/applicant J A Greggery KC for the appellant/applicant (written submissions received 12 August 2024) S L Dennis for the respondent…
R v NF
[2023] QCA 208

…CA 286, cited R v Spina [2012] QCA 179, cited R v TS [2009] 2 Qd R 276; [2008] QCA 370, cited SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited COUNSEL: The applicant appeared on his own behalf N W Crane for the respondent SOLICITORS: The applicant appeared on his own behalf Director of Public Prosecutions…
R v BDU
[2022] QCA 174

…S [1993] QCA 367, considered R v SAG (2004) 147 A Crim R 301; [2004] QCA 286, considered R v TS [2009] 2 Qd R 276; [2008] QCA 370, considered COUNSEL: J B Godbolt for the applicant C W Wallis for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for th…
R v CCR
[2021] QCA 119 Para 13

…ly R v Robinson ,[5] R v H ,[6] R v TS ,[7] R v Young; Ex parte Attorney-General (Qld) [8] and R v KAI .[9] [5][2007] QCA 99. [6][2001] QCA 167. [7][2008] QCA 370; (2008) 191 A Crim R 220. [8][2002] QCA 474; (2002) 135 A Crim R 253. [9][2002] QCA 378. Consideration…
R v Taj
[2018] QCA 305 Para 11

…BCA [13] and R v BAO ,[14] which involved sentences of nine and 10 years imprisonment respectively, are more comparable.[15] [10][2009] 2 Qd R 276; [2008] QCA 370. [11](2005) 157 A Crim R 309; [2005] QCA 427. [12][2000] QCA 279. [13][2011] QCA 278. [14][2004] QCA 445. [15]The respondent submits that the applicant…
R v HBT
[2018] QCA 227 Para 22

…ves escalating corruptive behaviour,[73] or where the offending was frequent or regular[74] throughout the period. [72] R v TS (2009) 2 Qd R 276; [2008] QCA 370. [73] R v AP [2003] QCA 445. [74] R v C; ex parte Attorney-General (Qld) [2003] QCA 134 and R v SBJ [2009] QCA 100.…
R v DBC; ex parte
[2012] QCA 203

…7, considered R v SAU [2006] QCA 192, considered R v SBJ [2009] QCA 100, considered R v TS [2009] 2 Qd R 276; [2008] QCA 370, distinguished R v Vincent; ex parte A-G (Qld) [2001] 2 Qd R 327; [2000] QCA 250, considered R v Wilton (1981) 28 SASR 362, considered COUNSEL: A W Moynihan SC for the appellant J J Allen f…
R v Byrnes; ex parte A-G (Qld)
[2011] QCA 40

…is (1986) 6 NSWLR 603, cited R v HAV [2009] QCA 259, followed R v MBG & MBH [2009] QCA 252, distinguished R v TS [2009] 2 Qd R 276; [2008] QCA 370, followed R v ZA ; ex parte A-G (Qld) [2009] QCA 249, distinguished COUNSEL: A W Moynihan SC, with A D Anderson, for the appellant M J Byrne QC for the respondent SOLI…
R v Hav
[2009] QCA 259 Para 1

…a period of about 16 months when the complainant was between six and seven years of age. [5][1999] QCA 311. [6][2003] QCA 445. [7][2004] QCA 286. [8][2008] QCA 370.…
R v ZA; ex parte A-G (Qld)
[2009] QCA 249 Para 1

…In making that submission, counsel relied on R v TS [2008] QCA 370, where Mackenzie AJA, with whom Fraser JA and Daubney J agreed, said at [39]:…
R v BBS
[2009] QCA 205 Para 1

…. The Judge was probably doing no more than saying the three particularized specified occasions were not isolated, which was relevant. See R v TS [2008] QCA 370, para 33, and R v D [1996] 1 Qd R 363, 403. The Judge noted that each of the complainants was six years of age at the time of the offending. He noted tha…

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Cases cited in this decision · 20 of 20 shown

R v RAC
[2008] QCA 185 Para 1

…hen searching for evidence of a different offence. That significant matter is not detailed in R v Robinson itself, but it is described in R v RAC [2008] QCA 185 in the judgment of McMurdo P at [30]. Furthermore, as McMurdo P pointed out in paragraph [31] of her Honour’s reasons, the judge who sentenced Robinson f…
R v HAP
[2008] QCA 137 Para 1

…oadly comparable cases, leads to the conclusion that the sentence imposed for maintaining was manifestly excessive. [5] R v GQ [2005] QCA 53; R v HAP [2008] QCA 137 ; R v C ; ex parte A-G (Qld) [2003] QCA 134; R v BAY [2005] QCA 427; R v AP [2003] QCA 445; R v PAD [2006] QCA 398 ; R v S [1993] QCA 367.…
R v Kitson
[2008] QCA 86 Para 1

…bout the head sentence. [2]Eg. R v McDougall & Collas [2007] 2 Qd R 87; [2006] QCA 365. [3]Eg. R v Griinke [1992] 1 Qd R 196 at 202; R v Kitson [2008] QCA 86.…
R v Robinson
[2007] QCA 99 Para 1

…I agree with his Honour’s reasons and proposed orders, but because of the significance attributed in the respondent’s submissions to R v Robinson [2007] QCA 99 and because that decision is frequently cited in applications of this kind I propose also to give my own reasons for concluding that the sentence imposed…
R v H, ML
[2006] SASC 357 Para 1

…rposes, offences which it has no jurisdiction to try ( R v Warn (1937) 26 Cr App R 115; R v Simons [1953] 2 All ER 599; R v H, ML (2006) 96 SASR 139; [2006] SASC 357.)…
R v PAD
[2006] QCA 398 Para 1

…iew that analysis of R v K (1993) 69 A Crim R 236, R v H [2001] QCA 167, R v G [2002] QCA 381, R v DAF [2004] QCA 368, R v HAA [2006] QCA 55, R v PAD [2006] QCA 398 tended to support a sentence of imprisonment of up to 18 years in a case involving the kind of offending found in Robinson even where the offender ha…
R v McDougall and Collas
[2006] QCA 365 Para 1

…on must be reconsidered in any event in view of the conclusion reached about the head sentence. [2]Eg. R v McDougall & Collas [2007] 2 Qd R 87; [2006] QCA 365. [3]Eg. R v Griinke [1992] 1 Qd R 196 at 202; R v Kitson [2008] QCA 86.…
R v KP; ex parte
[2006] QCA 301 Para 1

…put to evidence of this kind at trial may raise somewhat different issues from its use on sentence (see, eg. R v KP; ex parte Attorney-General (Qld ) [2006] QCA 301; R v Josifoski [1997] 2 VR 68). In dealing with the position for the purpose of sentence, Debelle J said that he was being sentenced only for the off…
R v HAA
[2006] QCA 55 Para 1

…agreed, expressed the view that analysis of R v K (1993) 69 A Crim R 236, R v H [2001] QCA 167, R v G [2002] QCA 381, R v DAF [2004] QCA 368, R v HAA [2006] QCA 55, R v PAD [2006] QCA 398 tended to support a sentence of imprisonment of up to 18 years in a case involving the kind of offending found in Robinson ev…
R v BAY
[2005] QCA 427 Para 1

…Analysis of numerous authorities has been conducted in some detail in cases such as R v SAG and R v BAY [2005] QCA 427. Repetitive analysis of them is unnecessary. The cases generally and others particularly referred to by counsel,[5] some of which were pleas of guilty and some of which involved a late plea or a…
R v GQ
[2005] QCA 53 Para 1

…onsistent with other broadly comparable cases, leads to the conclusion that the sentence imposed for maintaining was manifestly excessive. [5] R v GQ [2005] QCA 53; R v HAP [2008] QCA 137 ; R v C ; ex parte A-G (Qld) [2003] QCA 134; R v BAY [2005] QCA 427; R v AP [2003] QCA 445; R v PAD [2006] QCA 398 ; R v S [1…
R v DAF
[2004] QCA 368 Para 1

…Williams JA and Muir J agreed, expressed the view that analysis of R v K (1993) 69 A Crim R 236, R v H [2001] QCA 167, R v G [2002] QCA 381, R v DAF [2004] QCA 368, R v HAA [2006] QCA 55, R v PAD [2006] QCA 398 tended to support a sentence of imprisonment of up to 18 years in a case involving the kind of offendi…
R v SAG
[2004] QCA 286 Para 1

…In R v SAG [2004] QCA 286 Jerrard JA analysed numerous authorities relating to the offence of maintaining an unlawful sexual relationship. He noted that while many cases involved more than one child victim, there were many examples of cases in which lengthy sentences were imposed or upheld in appeals where only o…
R v AP
[2003] QCA 445 Para 1

…as manifestly excessive. [5] R v GQ [2005] QCA 53; R v HAP [2008] QCA 137 ; R v C ; ex parte A-G (Qld) [2003] QCA 134; R v BAY [2005] QCA 427; R v AP [2003] QCA 445; R v PAD [2006] QCA 398 ; R v S [1993] QCA 367.…
R v C; ex parte
[2003] QCA 134 Para 1

…In R v C; ex parte A-G (Qld) [2003] QCA 134, de Jersey CJ observed that the circumstances of these kinds of offences exhibit infinite variation. He continued:…
R v G
[2002] QCA 381 Para 1

…ive. Keane JA, with whom Williams JA and Muir J agreed, expressed the view that analysis of R v K (1993) 69 A Crim R 236, R v H [2001] QCA 167, R v G [2002] QCA 381, R v DAF [2004] QCA 368, R v HAA [2006] QCA 55, R v PAD [2006] QCA 398 tended to support a sentence of imprisonment of up to 18 years in a case invol…
R v H
[2001] QCA 167 Para 1

…was manifestly excessive. Keane JA, with whom Williams JA and Muir J agreed, expressed the view that analysis of R v K (1993) 69 A Crim R 236, R v H [2001] QCA 167, R v G [2002] QCA 381, R v DAF [2004] QCA 368, R v HAA [2006] QCA 55, R v PAD [2006] QCA 398 tended to support a sentence of imprisonment of up to 18…
R v Jensen and Attorney-General of Queensland
[1996] QCA 182 Para 1

…e subject of a separate sentence there presumably subject to totality issues of the kind discussed in R v Jensen; ex parte Attorney General (Qld) [1996] QCA 182.…
R v D
[1995] QCA 329

…CA 445, cited R v BAY [2005] QCA 427, cited R v C; ex parte A-G (Qld) [2003] QCA 134, considered R v D [1996] 1 Qd R 363; [1995] QCA 329, considered R v DAF [2004] QCA 368, cited R v G [2002] QCA 381, cited R v GQ [2005] QCA 53, cited R v Griinke [1992] 1 Qd R 196, cited R v H [2001] QCA 167, distinguished R v HA…
R v S
[1993] QCA 367 Para 1

…53; R v HAP [2008] QCA 137 ; R v C ; ex parte A-G (Qld) [2003] QCA 134; R v BAY [2005] QCA 427; R v AP [2003] QCA 445; R v PAD [2006] QCA 398 ; R v S [1993] QCA 367.…

Legislation cited in this decision · 2

Corrective Services Act 2006 (Qld)
182(2), 53 3 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	R v TS [2008] QCA 370
PARTIES:	R v TS (applicant)
FILE NO:	CA No 164 of 2008 DC No 98 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	28 November 2008
DELIVERED AT:	Brisbane
HEARING DATE:	26 September 2008
JUDGES:	Fraser JA, Mackenzie AJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Leave to appeal against sentence is granted.1. The appeal is allowed in respect of each of the sentences imposed in the District Court at Southport.2. The sentences imposed are set aside and in lieu thereof the following sentences are substituted: 3. Counts 1, 4, 7 and 9: 12 years imprisonment Counts 10 and 12: Eight years imprisonment Counts 2, 3, 5, 6, 8 and 11: Five years imprisonment The offences in Counts 1, 4, 7 and 9 are declared to be serious violent offences. It is declared that 958 days spent in custody from 8 October 2005 to 23 May 2008 both inclusive be taken into account as time already served under the sentences.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to maintaining a sexual relationship with his daughter over a six year period – where the applicant also pleaded guilty to offences of rape, attempted rape, sodomy and indecent treatment – where the applicant was sentenced to 20 years imprisonment on the maintaining, sodomy and rape counts with parole eligibility after 14 years – whether the sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where there was information before the sentencing judge that further uncharged acts were committed by the applicant against the complainant in another jurisdiction – whether and what use could be made of such information in sentencing the applicant Corrective Services Act 2006 (Qld), s 182(2) Criminal Code 1899 (Qld), s 229B Penalties and Sentences Act 1992 (Qld), Pt 9 Div 3 R v AP[2003] QCA 445, cited R v BAY [2005] QCA 427, cited R v C; ex parte A-G (Qld) [2003] QCA 134, considered R v D [1996] 1 Qd R 363; [1995] QCA 329, considered R v DAF [2004] QCA 368, cited R v G [2002] QCA 381, cited R v GQ [2005] QCA 53, cited R v Griinke [1992] 1 Qd R 196, cited R v H[2001] QCA 167, distinguished R v HAA [2006] QCA 55, cited R v HAP[2008] QCA 137, cited R v H, ML (2006) 96 SASR 139; [2006] SASC 357, cited R v Jensen and A-G [1996] QCA 182, cited R v Josifoski [1997] 2 VR 68, cited R v K (1993) 69…