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R v KBA[2022] QCA 35

[2022] QCA 35

COURT OF APPEAL

MORRISON JA

BODDICE J

DAVIS J

CA No 82 of 2021

DC No 123 of 2020

THE QUEEN

v

KBA Applicant

BRISBANE

THURSDAY, 17 MARCH 2022

JUDGMENT

BODDICE J:  On 19 February 2021, the applicant pleaded guilty to one count of indecent treatment of a child under 16 under care, one count of maintaining a sexual relationship with a child, eight counts of rape and two counts of sexual assault.  Each offence was a domestic violence offence.

On 12 April 2021, the applicant was sentenced to an effective head sentence of eight years imprisonment, imposed in respect of the last count of rape.  Lesser concurrent terms were imposed in respect of the remaining counts.  No order was made for a parole release date.  As a consequence, the applicant, in accordance with the Penalties and Sentences Act 1992, is eligible for parole after serving four years of the sentence.

The applicant seeks leave to appeal the sentence of eight years imprisonment.  The sole ground of appeal, should leave be given, is that the sentence was manifestly excessive.  The applicant does not submit that a sentence of eight years imprisonment was manifestly excessive; the applicant submits that the failure to set an earlier parole eligibility date was manifestly excessive having regard to his pleas of guilty to the offences.

The offences were committed between late 2012 and mid-2018.  The applicant was aged 36 to 42 years at the time of the offending, having been born on 14 July 1976.  The complainant in each of the offences was the applicant’s stepdaughter.  She was aged between 11 and 17 years at the time of the offending, having been born on 5 May 2001.

The offending was committed by the applicant in the family home.  The rape charges included digital, oral and penile penetration.  The applicant persisted in the conduct, notwithstanding complaints of pain and requests by the complainant that he desist in such conduct.

The sentencing Judge noted that the applicant had a criminal history for property and drug offending but no prior history for sexual offences.  After recording that the applicant had had a disadvantaged background, which included himself being the victim of sexual abuse and domestic violence and a past diagnosis of paranoid schizophrenia, the sentencing Judge recorded that, despite those disadvantages, the applicant had successfully undertaken employment and whilst in prison had undertaken courses to educate himself and to address drug and alcohol issues.

The sentencing Judge also recorded that the applicant’s pleas of guilty facilitated the administration of justice and demonstrated an acceptance of responsibility; however, notwithstanding those factors, the sentencing Judge correctly observed that the applicant’s offending gave rise to the need for both deterrence and denunciation.

The sentencing Judge had regard to a number of comparable decisions.  Whilst the prosecution submitted for a sentence of nine years imprisonment, the sentencing Judge observed that a sentence in the order of 10 years was “wide open”, particularly having regard to the fact that on three separate occasions the applicant had “sexually penetrated a young child in [his] care against her will”.

Notwithstanding those observations, the sentencing Judge imposed the head sentence of eight years imprisonment, having regard to the pleas of guilty and the other factors in mitigation.  The sentencing Judge specifically did not make any other order in respect of parole.

The applicant states he pleaded guilty in circumstances where he was told by his legal representatives that he would only serve one-third of his sentence before being eligible for parole and that he relied on that indication when entering his pleas of guilty.

Whilst the applicant asserts that his pleas of guilty were entered in such circumstances, such a circumstance does not detract from the consequence of the entry of those pleas of guilty.  As was observed in Meissner v The Queen (1995) 184 CLR 132, a person may plead guilty in the hope of obtaining a more lenient sentence than if convicted after a plea of not guilty.  Sentence is, however, ultimately a matter for the trial Judge.  Accordingly, the fact that the sentence imposed did not accord with the accused persons hope is no basis to set aside the pleas of guilty.

Further, a consideration of the comparable authorities aptly supports a conclusion that a sentence of eight years imprisonment in such circumstances, even allowing for the applicant’s cooperation with the administration of justice and his steps towards rehabilitation, was not manifestly excessive.  A head sentence of eight years imprisonment with no specification of an earlier parole eligibility date fell well within a sound exercise of the sentencing discretion.  The applicant was a mature man who engaged in persistent sexual offending against a child in his care and notwithstanding the child’s expressions as to the pain caused to her and her pleas for him to desist in such behaviour.  The applicant’s conduct was properly described as serious sexual offending involving a grave breach of trust.  I would refuse leave to appeal that sentence.

MORRISON JA:  I agree.

DAVIS J:  I agree.

MORRISON JA:  The order of the Court is that the application for leave to appeal against sentence is refused.

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Editorial Notes

  • Published Case Name:

    R v KBA

  • Shortened Case Name:

    R v KBA

  • MNC:

    [2022] QCA 35

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Boddice J, Davis J

  • Date:

    17 Mar 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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