R v TY

Case [2011] QCA 261 30 September 2011

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SUPREME COURT OF QUEENSLAND

CITATION:

R v TY [2011] QCA 261

PARTIES:

R
v
TY
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 91 of 2011
DC No 463 of 2010
DC No 525 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

30 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2011

JUDGES:

Muir and Fraser JJA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent was sentenced on his pleas of guilty to serve a head sentence of six years imprisonment for State offences – where the State offences involved one count of maintaining a sexual relationship with a child with a circumstance of aggravation, five counts of indecent treatment of a child under 12 as a guardian, one count of rape, 16 counts of indecent treatment of a child under 16 as a guardian, one count of making child exploitation material, five counts of indecent treatment of a child under care and one count of possession of child exploitation material – where the complainant the subject of the maintaining count was the daughter of the respondent’s de facto partner – where the complainant was five years old when the offending conduct commenced – where the offending conduct occurred over a lengthy period – where the sentence imposed was within the range submitted by prosecution and defence at the sentencing hearing – whether the sentencing judge erred in imposing a six year term of imprisonment for the State offences – whether the sentence was manifestly inadequate

Criminal Code 1899 (Qld), s 669A(1)

Director of Public Prosecutions (Cth) v Gregory (2011) 250 FLR 169; [2011] VSCA 145, cited
Everett & Phillips v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited
Hili v The Queen; Jones v The Queen (2010) 85 ALJR 195; [2010] HCA 45, cited
Lacey v Attorney-General of Queensland (2011) 85 ALJR 508; [2011] HCA 10, considered
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29, cited
R v C[2000] QCA 145, considered
R v Clarke [1996] 2 VR 520; [1996] VicRp 83, cited
R v HAN (2008) 184 A Crim R 153; [2008] QCA 106, considered
R v KU and Ors; ex parte A-G (Qld) (2008) 181 A Crim R 58; [2008] QCA 20, cited
R v Lacey; ex parte A-G (Qld) (2009) 197 A Crim R 399; [2009] QCA 274, considered
R v MAH[2005] QCA 13, considered
R v Major; ex parte A-G (Qld)[2011] QCA 210, cited
R v Myers[2009] QCA 14, considered
R v R [1998] QCA 268, considered
R v Tait…

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 TY

Details

AGLC: R v TY [2011] QCA 261
Case: [2011] QCA 261
Decision Date: 30 September 2011

CaseChat Overview and Summary

The respondent, TY, was convicted of multiple serious offences involving child abuse, including maintaining a sexual relationship with a child, various counts of indecent treatment, rape, and possession of child exploitation material. The crimes were committed over a lengthy period against the five-year-old daughter of the respondent's de facto partner. Following a plea of guilty, TY was sentenced to a term of imprisonment of six years, which was within the range proposed by both the prosecution and defence at the sentencing hearing. TY appealed against the sentence, arguing that it was manifestly inadequate.

The court was tasked with determining whether the sentencing judge had erred in imposing a six-year term of imprisonment for the serious nature and extent of the crimes committed. The court considered the principles of sentencing in the context of child abuse offences, the severity and frequency of the offending, and the impact on the victim. The court found that the sentence was within the appropriate range and took into account the mitigating and aggravating factors relevant to the case. The court held that the sentence imposed was not manifestly inadequate, and therefore, the appeal against sentence was dismissed.

Accordingly, the court dismissed TY's appeal against the sentence. The six-year term of imprisonment was upheld as an appropriate sentence for the respondent's crimes. The court found no grounds for interference with the sentencing decision, confirming the adequacy of the sentence in light of the circumstances and legal principles applicable to the case.

Orders

Orders of the court

Appeal dismissed.

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.

Actions

Citations

R v TY [2011] QCA 261

Most Recent Citation

R v Vlies [2016] QCA 276

Cases Citing This Decision

R v BDN [2021] QCA 130
Citation 1 (Para 6)

…ts his submission that the sentence was manifestly excessive by reference to comparable authorities including R v HAN (2008) 184 A Crim R 153, R v TY [2011] QCA 261, and R v FAK [2016] QCA 306. The respective head sentences of imprisonment imposed for the maintaining offence in these authorities were six years, s…
R v Vlies [2016] QCA 276
Citation 2 (Para 16)

…al custody was 7 September 2016. His Honour stated that the cumulative sentences imposed would thus commence on that date. [22][2009] QCA 14. [23][2011] QCA 261.…

See all citing cases →

Cases Cited

R v WILTON [2019] SASCFC 65
Citation 1

…] QCA 268, considered R v Tait and Bartley (1979) 46 FLR 386, cited R v Walden [2010] QCA 13, considered The Queen v Wilton (1981) 28 SASR 362, considered Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited COUNSEL: A W Moynihan SC for the appellant S R Lewis, with M J Holohan, for the respondent SOLICITORS: Di…
The Queen v Wilton [2018] NTCCA 16
Citation 2

…sidered R v R [1998] QCA 268, considered R v Tait and Bartley (1979) 46 FLR 386, cited R v Walden [2010] QCA 13, considered The Queen v Wilton (1981) 28 SASR 362, considered Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited COUNSEL: A W Moynihan SC for the appellant S R Lewis, with M J Holohan, for the respondent SO…
R v Major; ex parte Attorney-General [2011] QCA 210
Citation 3 (Para 1)

…fence declaration was sought at first instance. [3] Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145 and R v Major; ex parte A-G (Qld) [2011] QCA 210 at 56.…
DPP (Cth) v Gregory [2011] VSCA 145
Citation 4

…the sentence was manifestly inadequate Criminal Code 1899 (Qld), s 669A(1) Director of Public Prosecutions (Cth) v Gregory (2011) 250 FLR 169; [2011] VSCA 145, cited Everett & Phillips v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited Hili v The Queen; Jones v The Queen (2010) 85 ALJR 195; [2010] HCA 45, cited La…
Lacey v Attorney-General (Qld) [2011] HCA 10
Citation 5 (Para 1)

…or is demonstrated, the Court has an unfettered discretion to substitute the sentence it considers appropriate.[15] [14](Qld). [15] Lacey v A-G (Qld) (2011) 85 ALJR 508 at para [62].…
Hili v The Queen [2010] HCA 45
Citation 6

…ett & Phillips v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited Hili v The Queen; Jones v The Queen (2010) 85 ALJR 195; [2010] HCA 45, cited Lacey v Attorney-General of Queensland (2011) 85 ALJR 508; [2011] HCA 10, considered Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29, cited R v C [2000] QCA 145,…
Jones v The Queen [2010] NZCA 119
Citation 7

…0 FLR 169; [2011] VSCA 145, cited Everett & Phillips v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited Hili v The Queen; Jones v The Queen (2010) 85 ALJR 195; [2010] HCA 45, cited Lacey v Attorney-General of Queensland (2011) 85 ALJR 508; [2011] HCA 10, considered Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29, c…
R v Walden [2010] QCA 13
Citation 8 (Para 1)

…The complainant’s mother acted as her child’s pimp and the offender paid the mother for at least some of the complainant’s sexual services. [11][2010] QCA 13.…
R v Lacey; ex parte Attorney-General [2009] QCA 274
Citation 9

…Ors; ex parte A-G (Qld) (2008) 181 A Crim R 58; [2008] QCA 20, cited R v Lacey; ex parte A-G (Qld) (2009) 197 A Crim R 399; [2009] QCA 274, considered R v MAH [2005] QCA 13, considered R v Major; ex parte A-G (Qld) [2011] QCA 210, cited R v Myers [2009] QCA 14, considered R v R [1998] QCA 268, considered R v Tait…
R v Myers [2009] QCA 14
Citation 10 (Para 1)

…sonment after a trial. The complainant was badly affected by the offender’s conduct and was alienated from her mother and some of her siblings. [12][2009] QCA 14.…
R v HAN [2008] QCA 106
Citation 11 (Para 1)

…d a timely plea. However, the fact that the offender was the complainant’s natural father made the offending conduct particularly culpable. [10][2008] QCA 106.…
R v Ku, AAC, Wy, PAG, Ky, KZ, BBL, WZ & YC; ex parte [2008] QCA 20
Citation 12 (Para 1)

…pproval in R v KU and Ors; ex parte A-G (Qld) [21] and was referred to with approval in the joint reasons in Everett & Phillips v The Queen .[22] [21][2008] QCA 20; (2008) 181 A Crim R 58 at [34]. [22](1994) 181 CLR 295 at 302.…
R v MAH [2005] QCA 13
Citation 13 (Para 1)

…that case was far less than the subject period, the offending conduct included three instances of rape and many instances of digital penetration. [30][2005] QCA 13.…
Wong v The Queen [2001] HCA 64
Citation 14

…R v Walden [2010] QCA 13, considered The Queen v Wilton (1981) 28 SASR 362, considered Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited COUNSEL: A W Moynihan SC for the appellant S R Lewis, with M J Holohan, for the respondent SOLICITORS: Director of Public Prosecutions (Queensland) for the appellant Qu…
R v C [2000] QCA 145
Citation 15 (Para 1)

…t which occurred over a period of approximately three and a half years. The offender had a minor, but not particularly relevant, criminal history. [7][2000] QCA 145.…
R v R [1998] QCA 268
Citation 16 (Para 1)

…sentence of five and a half years imprisonment was imposed, involved much graver offending conduct over a five year period. [26][2000] QCA 145. [27][1998] QCA 268.…
Everett v the Queen [1994] HCA 49
Citation 17

…Prosecutions (Cth) v Gregory (2011) 250 FLR 169; [2011] VSCA 145, cited Everett & Phillips v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited Hili v The Queen; Jones v The Queen (2010) 85 ALJR 195; [2010] HCA 45, cited Lacey v Attorney-General of Queensland (2011) 85 ALJR 508; [2011] HCA 10, considered Lownde…
R v Tait [1936] HCA 62
Citation 18

…[20](1979) 46 FLR 386; 24 ALR 473.…
Griffiths v The Queen [1977] HCA 44
Citation 19 (Para 1)

…prevent any intervention. [36] Lacey v Attorney-General of Queensland (2011) 85 ALJR 508; [2011] HCA 10 at [16]-[18] and [62]; Griffiths v the Queen (1977) 137 CLR 293 at 310 per Barwick CJ. [37] Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145 at [73]-[77].…
Lowndes v The Queen [1999] HCA 299
Citation 20

…010) 85 ALJR 195; [2010] HCA 45, cited Lacey v Attorney-General of Queensland (2011) 85 ALJR 508; [2011] HCA 10, considered Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29, cited R v C [2000] QCA 145, considered R v Clarke [1996] 2 VR 520; [1996] VicRp 83, cited R v HAN (2008) 184 A Crim R 153; [2008] QCA 106, consider…
Lacey v Attorney-General of Queensland [2011] HCA 107
Citation 21 (Para 1)

…eral, [36] and particularly one where the sentence largely reflects the submissions made by the prosecutors below,[37] prevent any intervention. [36] Lacey v Attorney-General of Queensland (2011) 85 ALJR 508; [2011] HCA 10 at [16]-[18] and [62]; Griffiths v the Queen (1977) 137 CLR 293 at 310 per Barwick CJ. [37] Director of Public Prosecution…
[1999] HCA 29 [1999] HCA 29
Citation 22

…acey v Attorney-General of Queensland (2011) 85 ALJR 508; [2011] HCA 10, considered Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29, cited R v C [2000] QCA 145, considered R v Clarke [1996] 2 VR 520; [1996] VicRp 83, cited R v HAN (2008) 184 A Crim R 153; [2008] QCA 106, considered R v KU and Ors; ex parte…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v TY [2011] QCA 261
PARTIES:	R v TY (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 91 of 2011 DC No 463 of 2010 DC No 525 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	30 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	10 May 2011
JUDGES:	Muir and Fraser JJA and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent was sentenced on his pleas of guilty to serve a head sentence of six years imprisonment for State offences – where the State offences involved one count of maintaining a sexual relationship with a child with a circumstance of aggravation, five counts of indecent treatment of a child under 12 as a guardian, one count of rape, 16 counts of indecent treatment of a child under 16 as a guardian, one count of making child exploitation material, five counts of indecent treatment of a child under care and one count of possession of child exploitation material – where the complainant the subject of the maintaining count was the daughter of the respondent’s de facto partner – where the complainant was five years old when the offending conduct commenced – where the offending conduct occurred over a lengthy period – where the sentence imposed was within the range submitted by prosecution and defence at the sentencing hearing – whether the sentencing judge erred in imposing a six year term of imprisonment for the State offences – whether the sentence was manifestly inadequate Criminal Code 1899 (Qld), s 669A(1) Director of Public Prosecutions (Cth) v Gregory (2011) 250 FLR 169; [2011] VSCA 145, cited Everett & Phillips v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited Hili v The Queen; Jones v The Queen (2010) 85 ALJR 195; [2010] HCA 45, cited Lacey v Attorney-General of Queensland (2011) 85 ALJR 508; [2011] HCA 10, considered Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29, cited R v C[2000] QCA 145, considered R v Clarke [1996] 2 VR 520; [1996] VicRp 83, cited R v HAN (2008) 184 A Crim R 153; [2008] QCA 106, considered R v KU and Ors; ex parte A-G (Qld) (2008) 181 A Crim R 58; [2008] QCA 20, cited R v Lacey; ex parte A-G (Qld) (2009) 197 A Crim R 399; [2009] QCA 274, considered R v MAH[2005] QCA 13, considered R v Major; ex parte A-G (Qld)[2011] QCA 210, cited R v Myers[2009] QCA 14, considered R v R [1998] QCA 268, considered R v Tait…