The Queen v CCN - [2020] QCA 195

[2020] QCA 195

COURT OF APPEAL

MORRISON JA
PHILIPPIDES JA
JACKSON J

CA No 336 of 2019
DC No 1019 of 2017
DC No 1013 of 2017

THE QUEEN

CCN Applicant

BRISBANE

THURSDAY, 10 SEPTEMBER 2020

JUDGMENT

PHILIPPIDES JA: This is an application for leave to appeal against the sentence imposed on the applicant on 6 December 2019, on his pleas of guilty to 23 sexual offences over a period from July 2007 to May 2014 involving three children, one of whom was the applicant’s daughter, another was a young girl sent to live with him, raised as his daughter and a third was his daughter’s friend. He was sentenced to an effective term of imprisonment of 10 years which attracted an automatic declaration as a serious violence offence, which the applicant contends is manifestly excessive.

The basis for that contention is that the learned sentencing judge was not made aware of the applicant’s physical disability concerning what is said to be his profound hearing loss. The applicant seeks leave to adduce evidence concerning that condition in a form of an affidavit by him and by Dr Keogh, an audiologist, which exhibits a report by her in relation to the applicant’s hearing loss which is based on pre-employment health assessments conducted on 8 October 2014 and 16 December 2015.

Dr Keogh did not meet the applicant to compile the report. In her report, Dr Keogh opined that the applicant had at least a severe to profound loss in his right ear and mild to severe loss in his left ear which represented a significant hearing impairment which is likely to be a permanent hearing loss which would not be able to be corrected by surgery and which will continue to deteriorate. Having acquired English as his second language, the hearing loss has significant implications on his ability to hear speech in noisy environments, such as a correctional facility.

She considered that the impact of the applicant’s hearing impairment in the context of a noisy prison environment will significantly impact on his functional capacity overall and his ability to communicate is compromised. Given the degree of hearing loss and the complexities of hearing speech in noisy environments, Dr Keogh opines that the applicant would be assisted by hearing aids. She also states that assisted listening devices, supports and auditory rehabilitation will assist with his functioning and provide equitable access to communication.

The applicant’s solicitor is not seeking to criticise his previous solicitors for failing to procure a report concerning hearing impairment at the time of sentence. The applicant relies on the Court’s discretion to admit evidence on an appeal against sentence where it is in the interests of justice, as discussed in R v O’Shea [2011] QCA 18, because its admission would cause the Court to form the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed in the exercise of the power under s 668E(3) of the Criminal…

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 The Queen v CCN

Details

AGLC: The Queen v CCN [2020] QCA 195
Case: [2020] QCA 195
Decision Date: 10 SEPTEMBER 2020

CaseChat Overview and Summary

The Queen v CCN was heard in the Court of Appeal in Queensland. The applicant, CCN, sought leave to appeal against the sentence of 10 years' imprisonment imposed on him for 23 sexual offences against three children, including his daughter and her friend. The basis of his appeal was that the sentencing judge was not aware of his physical disability, specifically a profound hearing loss. CCN sought to adduce evidence of this condition through an affidavit from himself and an audiologist, Dr Keogh, who opined that CCN's hearing impairment would significantly impact on his functional capacity in a prison environment. The respondent opposed the admission of this evidence, arguing that it was not fresh evidence and could have been obtained prior to sentencing. The court found that there was insufficient evidence to demonstrate that prison would be more onerous for CCN to a material degree. CCN had managed in prison for two and a half years apparently without any reported significant or major issues or incidences. The court refused the application for leave to adduce further evidence and the application for leave to appeal against sentence.

The legal issues before the court were whether the evidence of CCN's hearing impairment could be adduced and if the sentence imposed was manifestly excessive. The court found that the evidence was not fresh evidence and could have been obtained prior to sentencing. The court further found that there was not sufficient evidence to demonstrate that prison would be more onerous for CCN to a material degree. The court considered that CCN had managed in prison for two and a half years apparently without any reported significant or major issues or incidences. The court concluded that there was no error alleged in the exercise of the sentencing discretion.

The court reasoned that it was generally not in the public interest to enable defendants to hold back evidence that could have been put before the Court at trial or, as in this case, on sentence following pleas of guilty. The court noted that there was evidence indicating that CCN was skilled at management strategies such as learning from pictograms during his work as a boilermaker. The court further noted that CCN was engaging proactively in activities in prison, had received a job as a cleaner, engaged with other inmates by playing chess and worked on maths problems as well as watching television. The court concluded that there was not sufficient evidence to demonstrate that prison would be more onerous for CCN to a material degree. The court refused the application for leave to adduce further evidence and the application for leave to appeal against sentence.

The orders of the Court were as follows: application for leave to adduce further evidence is refused, application for leave to appeal against sentence is refused.

Orders