R v ZA; ex parte A-G (Qld) - [2009] QCA 249

SUPREME COURT OF QUEENSLAND

CITATION:

R v ZA; ex parte A-G (Qld) [2009] QCA 249

PARTIES:

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

FILE NO/S:

CA No 152 of 2009
DC No 216 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

1 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

14 August 2009

JUDGES:

Holmes JA, Mullins and Philippides JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal allowed;

2. Set aside the sentence of nine and a half years for each of the maintaining offences and in lieu thereof impose a sentence of 10 years

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to two counts of maintaining an unlawful sexual relationship with a child – where the respondent also pleaded guilty to offences of sodomy with a circumstance of aggravation, indecent treatment of a child with a circumstance of aggravation, indecent treatment of a child and two counts of attempting to procure a young person for carnal knowledge – where the respondent was sentenced to nine and a half years imprisonment on the maintaining counts with lesser concurrent sentences on all other counts – whether declaration should be made under s 163B(3) Penalties and Sentences Act 1992 (Qld) – whether the sentence was manifestly inadequate

Penalties and Sentences Act 1992 (Qld), s161B(3)

R v Eveleigh [2003] 1 Qd R 398; [2002] QCA 219, considered
R v Herford (2001) 119 A Crim R 546; [2001] QCA 177, considered
R v McDougall & Collas [2007] 2 Qd R 87; [2006] QCA 365, followed
R v P [2000] QCA 271, considered
R v SAG (2004) 147 A Crim 301; [2004] QCA 286, considered

R v TS [2008] QCA 370, considered

COUNSEL:

A W Moynihan SC, with L P Brisick, for the appellant
C Heaton for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Legal Aid Queensland for the respondent

HOLMES JA: I agree with the reasons of Philippides J and with the orders her Honour proposes.

MULLINS J: I agree with Philippides J.

PHILIPPIDES J:

The sentence

The respondent was convicted on his plea on 28 May 2009 in respect of 34 sexual offences committed between 1 November 2006 and 1 February 2008. The offences were committed against six boys and consisted of two counts of maintaining an unlawful sexual relationship with a child; two counts of sodomy with a circumstance of aggravation; 21 counts of indecent treatment of a child with a circumstance of aggravation; seven counts of indecent treatment of a child; and two counts of attempting to procure a young person for carnal knowledge.

A sentence of nine and a half years’ imprisonment was imposed on the maintaining counts, with lesser concurrent…

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.

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Details

Case: [2009] QCA 249
Decision Date: 1 September 2009

CaseChat Overview and Summary

The case before the court involved the respondent who had pleaded guilty to various serious sexual offences against children. The charges included two counts of maintaining an unlawful sexual relationship with a child, offences of sodomy with a circumstance of aggravation, indecent treatment of a child with a circumstance of aggravation, and two counts of attempting to procure a young person for carnal knowledge. The court was tasked with reviewing the sentence imposed by the lower court, which was nine and a half years imprisonment for the maintaining offences, with lesser concurrent sentences on all other counts. The Attorney-General of Queensland sought a declaration under section 163B(3) of the Penalties and Sentences Act 1992, arguing that the sentence was manifestly inadequate.

The central legal issue was whether the sentence imposed was manifestly inadequate and whether it warranted a declaration under the specified section of the Act. The court considered the severity of the crimes, the nature of the harm caused to the victims, and the need for appropriate deterrence and denunciation. The court also had to weigh the mitigating factors presented, such as the respondent's guilty pleas and lack of a criminal record, against the gravity of the offences and the protection of the community.

In its decision, the court found that the sentence was indeed manifestly inadequate. The court emphasised the serious nature of the offences and the substantial harm caused to the victims. The court noted that the sentence did not adequately reflect the severity of the crimes or serve the purposes of punishment, including deterrence and denunciation. Consequently, the court allowed the appeal and set aside the original sentence, imposing a sentence of 10 years for each of the maintaining offences. The court's decision underscores the importance of ensuring that sentences appropriately reflect the seriousness of sexual offences against children.

Orders

Orders of the court

1. Appeal allowed;

2. Set aside the sentence of nine and a half years for each of the maintaining offences and in lieu thereof impose a sentence of 10 years

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.

CITATION:	R v ZA; ex parte A-G (Qld) [2009] QCA 249
PARTIES:	R v ZA (respondent) EX PARTE ATTORNEY GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 152 of 2009 DC No 216 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	1 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	14 August 2009
JUDGES:	Holmes JA, Mullins and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed; 2. Set aside the sentence of nine and a half years for each of the maintaining offences and in lieu thereof impose a sentence of 10 years
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to two counts of maintaining an unlawful sexual relationship with a child – where the respondent also pleaded guilty to offences of sodomy with a circumstance of aggravation, indecent treatment of a child with a circumstance of aggravation, indecent treatment of a child and two counts of attempting to procure a young person for carnal knowledge – where the respondent was sentenced to nine and a half years imprisonment on the maintaining counts with lesser concurrent sentences on all other counts – whether declaration should be made under s 163B(3) Penalties and Sentences Act 1992 (Qld) – whether the sentence was manifestly inadequate Penalties and Sentences Act 1992 (Qld), s161B(3) R v Eveleigh [2003] 1 Qd R 398; [2002] QCA 219, considered R v Herford (2001) 119 A Crim R 546; [2001] QCA 177, considered R v McDougall & Collas [2007] 2 Qd R 87; [2006] QCA 365, followed R v P [2000] QCA 271, considered R v SAG (2004) 147 A Crim 301; [2004] QCA 286, considered R v TS [2008] QCA 370, considered
COUNSEL:	A W Moynihan SC, with L P Brisick, for the appellant C Heaton for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent