Queensland Law Society

November 2019

Court of Appeal judgments

1–30 September 2019

Civil appeals

Bettson Properties Pty Ltd & Anor v Tyler [2019] QCA 176, 6 September 2019

General Civil Appeal – Real Property – Restrictive Covenants – where the respondent installed solar panels on the roof of her home without obtaining the prior consent of the appellants as required by a provision of the contract under which the house was purchased – where the appellants sought to enforce the relevant provision by requiring the respondent to remove or relocate the solar panels – where the primary judge held that the provision in question was deprived of force and effect by sections 246Q and 246S of the Building Act 1975 (Qld) (BA) – whether sections 246Q and 246S of the BA applied to deprive the relevant contractual provision of its force and effect – where the determinative question is whether the expression used in sections 246Q and 246S, “prevents a person from installing a solar hot water system or photovoltaic cells on the roof or other external surface of the building”, comprehends a case in which the result of the restriction (s246Q) or the withholding of consent (s246S) is that the photovoltaic cells may be installed only at a location where they will remain viable but will operate at about 80%of the efficiency that would be achieved if they were instead installed at the proscribed location – where the critical word is ‘prevents’ – where the evidence is to the effect that at the location required by the appellants the photovoltaic cells will remain viable although they will operate somewhat less efficiently than they would operate in the location where the respondent caused them to be installed – where the evidence does not support any finding more favourable to the respondent and the primary judge did not find that installation at the location required by the appellants would be impractical, whether from an economic perspective or for any other reason – where the construction question then is whether “prevents a person from installing” in sections 246Q and 248S connotes not only “makes it impossible, impracticable or impractical for the person to install”, but also less significant adverse effects, such as “less energy efficient for the person to install” – where the conclusion is that the word ‘prevents’ in sections 246Q and 246S bears its common primary meaning of ‘stops from happening’, which comprehends cases where the result of the relevant restriction or withholding of consent is that it is impossible, impracticable, or impractical to install a solar hot water system or photovoltaic cells – where there is no ambiguity in those provisions such as would allow for a construction under which ‘prevents’ comprehends a less significant adverse result such as ‘less advantageous for the person to install’ – where the sections are therefore not open to a construction under which they operate on the facts of this case – where some of the extrinsic material suggests a more extensive scope for the operation of sections 246Q and 246S – where the obligation of the court being to give effect to the statutory text and its meaning being clear, it cannot be displaced by the summaries in the explanatory memorandum.

Appeal allowed. Set aside the orders made in the Trial Division. Declare that the respondent installed solar panels on the roof of the named property in breach of the contract. Order the respondent remove or relocate the installed solar panels on the named property. Costs. (Brief)

 

Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd & Ors [2019] QCA 184, 10 September 2019

General Civil Appeal – When Appeal Lies – For Bias in Judicial Proceedings – where applications for mining leases and an amendment to an environmental authority to expand a mine owned by Acland were referred to the Land Court – where the Land Court hearing commenced on 7 March 2016 and recommendations were reserved on 7 October 2016 – where Acland filed an application on 16 December 2016 to reopen the hearing to tender new evidence – where a hearing was listed on 2 February 2017 to determine the application to reopen and address errors with the e-trial software – where the member arranged to go on leave in February and March 2017 as long as a year before – where media reports in January 2017 commented on the delay of the Land Court’s recommendations and concern that it would impact upon jobs at the mine – where the member interpreted the media reports as Acland criticising the member for taking leave as it would delay the delivery of the recommendations and affect jobs – where the member considered that the comments about his leave could be regarded as contempt of court – where the member asked Acland at the 2 February 2017 hearing to explain the media reports – where Acland’s counsel submitted that the comments about the member’s leave in the media reports were not attributed to Acland nor could they be interpreted as being in contempt of court – where at the end of the hearing the member stated that he considered “the matter closed” and that he would not refer it for contempt of court proceedings – where Acland’s counsel did not make an application for the member to disqualify himself for apprehended bias – where the Land Court delivered the recommendations and reasons on 31 May 2017 – where Acland applied for judicial review of the recommendations on various grounds including apprehended bias – where the primary judge concluded that there were reasonable grounds upon which to apprehend bias but Acland had waived its right to complain at the 2 February 2017 hearing and the member’s reasons did not “re-enliven” that apprehension – where Acland filed a cross-appeal that the primary judge erred in failing to conclude that a fair-minded lay observer would reasonably apprehend from the reasons that the member might still be affected by his personal offence, feelings and views formed at the 2 February 2017 hearing – where claims of apprehended bias strike at the validity of the hearing and outcome below and should be dealt with before other substantive issues are decided – where Acland accepts that it elected to waive its right to make an application for the member to disqualify himself following the 2 February 2017 hearing – where Acland did not wish to raise apprehended bias as a ground of cross-appeal unless the court proposes to allow the appellant’s appeal – where if a party is not permitted to postpone until after judgment an application that a judge disqualify himself or herself, in order first to determine whether the judgment is favourable, we do not see how a party to an appeal can do so by asking an appellate court to postpone its consideration of a claim of actual or ostensible bias until it is known whether the result of the appeal on other grounds is favourable – where counsel who appeared for Acland, submitted that if the court were to rule that his client was not able to keep its cross-appeal in reserve in the way that it wished, Acland would then wish to amend its notice of cross-appeal by deleting paragraph 2, which rendered the cross-appeal contingent upon the appellant’s appeal and would rely upon the ground of apprehended bias immediately – where the court does not understand that the appellant opposed that course – where it follows that the court should first consider whether Acland succeeds on its cross-appeal – where a fair-minded lay observer might reasonably conclude as follows – where the article that was published by The Courier-Mail deeply offended the member – where he saw in that article an implication that, by taking his long-planned and justifiable leave, the member would improperly delay a decision in the case and that the delay that he had caused would result in people “losing jobs” – where he immediately pinned the blame for this imputation upon Acland and summoned Acland to appear and to explain the actions which he had assumed had led to the publication of the article and to the impugning of his integrity – where during the ensuing hearing, the member’s agitation was so great that he refused in the first instance even to read the explanation that he had asked for and had, instead, made an unjustified criticism of Acland for the manner in which its lawyers had put the affidavits before him – where he responded to Acland’s submissions with tendentious and argumentative questions about the legal remedies he expected Acland should have pursued against The Courier-Mail if its counsel’s submissions were bona fide – where he employed sarcasm to belittle its position – where having said that the “matter” was closed, the member’s reasons for judgment gave a prominent place to the supposed non-issue of delay at both the beginning and at the end of his reasons – where that is to say, even after he had completed his judicial task, the member returned in his “Epilogue” to the delay – the very matter that had agitated him at the February hearing – where the reasons also incorporated unnecessary, unsupportable and irrational criticisms of Acland’s commercial behaviour and its litigious behaviour – where it included discriminatory treatment of one of Acland’s witnesses in connection with an issue common to a certain number of the objectors – where the reasons contained wrong findings that then served as a basis for unjustified criticism – where in this case the matters to which Acland has drawn attention are inextricably linked to the issues of ostensible bias raised at the February hearing – where they constitute matters that would give rise to a reasonable apprehension in an objective lay observer that the member might not have brought an impartial and dispassionate mind to bear upon his task – where s 269(4) of the Mineral Resources Act 1989 (Qld) and s191 of the Environmental Protection Act 1994 (Qld) provide the relevant considerations the Land Court is required to take into account – where the member determined that the Land Court’s jurisdiction permitted it to consider the effect of the proposed mining operations upon groundwater in the area – where there is a separate provision under s206 of the Water Act 2000 (Qld) to apply for a licence that would permit the holder of a mining tenement to interfere with water under the relevant land – where the primary judge, on judicial review, found that due to the separate statutory authority concerning the interference of groundwater, the Land Court did not have jurisdiction to consider the impacts upon groundwater – where the statutory regime has been amended following Acland’s application for judicial review so as to include interferences with groundwater as a relevant consideration under referrals to the Land Court from the Mineral Resources Act and Environmental Protection Act – where the consequence is that interference with underground water, of the kind in issue in this case, now constitutes part of the “operations to be carried on under the authority of the proposed mining lease” and is, for that reason, a matter to be taken into account by the decision maker – where, however, those amendments do not apply to this case – where it follows that Bowskill J was right in her conclusion that it was outside the jurisdiction of the Land Court in this case to consider the effects of the proposed mining activities upon groundwater.

Proposed orders: Orders 4 to 8 of the orders made by Bowskill J on 28 May 2018 be set aside. The first respondent’s applications be referred back to the Land Court. The appellant pay the first respondent’s costs of the appeal. Parties to provide written submissions on overall final orders.

 

Awabdy & Anor v Electoral Commission of Queensland & Anor [2019] QCA 187, 13 September 2019

General Civil Appeal – Constitutional Law – Inconsistency of Laws (Constitution, s109) – where the primary judge made a declaration that ss290 and 291 of the Electoral Act 1992 (Qld) are not inconsistent with ss314AB and 314AB of the Commonwealth Electoral Act 1918 (Cth) within the meaning of s109 of the Constitution – where the provisions concern the disclosure to officials of payments made to political parties – where the court has to consider the meaning and effect of the Queensland and Commonwealth provisions – whether the Queensland and Commonwealth provisions are directly or indirectly inconsistent with each other – where the subject matter of the Commonwealth law is not the protection of the Queensland Parliament nor is it the protection of the Queensland electoral process – where in the present legislative setting, the Commonwealth has an interest in Queensland political activity because the Commonwealth is concerned with national elections – where its interest is limited to such matters as they may affect federal elections – where to the extent that the Act is concerned with payments to political parties that have been made for state election purposes or for federal election purposes, its sole concern in the context of this Act lies in their potential to affect federal elections – where, consequently, while the Commonwealth Act undoubtedly covers the field of federal elections in this and all other respects, it has nothing to say about state elections or about how payments of any kind might affect state elections – where that is a matter solely for the state legislature – where the Commonwealth Electoral Act 1918 (Cth) has nothing to say about Queensland elections – where insofar as it includes within its purview payments made to a Queensland state branch of a political party registered with the Commonwealth Electoral Commission, that is because such a payment might incidentally bear upon the integrity of a Commonwealth election – where no part of the Commonwealth Act concerns Queensland elections or their integrity – where the state law is a law with respect to the Queensland Parliament and, specifically, the integrity of the election of members of Parliament insofar as payments to political parties and candidates might improperly interfere with the integrity of elected members – where just as in the Commonwealth sphere, the Queensland Act treats payments made for any purpose to a state-registered party with a state election agenda as payments that might bear upon the integrity of a state election and, therefore, should be subject to scrutiny – where the Queensland Act will inevitably be concerned with many of the same actual payments as the Commonwealth Act – where the Commonwealth Act cannot be construed as purporting to lay down the whole legislative framework within which political payments have to be reported for all purposes – where it lays down the framework within which political payments are to be dealt with for the singular purpose of protecting federal elections – where, because the Commonwealth Act does not purport to prescribe the limit of the obligation to make disclosure of the receipt of gifts generally, it cannot be said that the Commonwealth Act is a law of general application to such payments – where one Act requires that, if certain conditions exist, a defined person must inform a Commonwealth officer about certain things – where the other requires that, if certain other conditions exist, that a differently defined person must inform a different person, a Queensland officer, about certain things – where the appellant’s submission that the Queensland Act regulates the same conduct as does the Commonwealth Act cannot be accepted – where nor can the submissions of the appellant or the Commonwealth that the Queensland Act is a law with respect to federal elections be accepted – where the submission of the Commonwealth that there is either a direct or indirect inconsistency between the two laws is rejected.

Appeal dismissed. Costs.

 

SHA Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd [2019] QCA 201, 27 September 2019

General Civil Appeal; Application for Leave s118 District Court of Queensland Act 1967 (Civil) – where the appellant and the respondent entered into a design and construction contract – where a dispute arose regarding progress payment claims made by the respondent which were not paid by the appellant – where the question was raised in the first instance as to whether the payment claims were valid under the Building and Construction Industry Payments Act 2004 (Qld) – where the primary judge held in favour for the respondent – where the appellant appeals against the three orders made in the first instance – where the contract required the appointment of a superintendent – where it is contended by the respondent that the appellant, which was the principal of the contract, had nominated themselves as superintendent – where the matter below was decided on the basis that the appellant was the superintendent – where the validity of the payment claims hinged upon the standpoint that the appellant was the superintendent – where the question arose as to whether the appellant being the superintendent could be an implied term to the contract – whether the payment claims were valid – whether the appellant’s status as the superintendent under the contract could be an implied term – where the definition of superintendent is “the person stated in Item 5 as the Superintendent or other person from time to time appointed in writing by the Principal to be the Superintendent and notified as such in writing to the Contractor by the Principal” – where Item 5 identifies the superintendent as “S.H.A. Premier Constructions Pty Ltd nominated person” – where construction of the words in Item 5, in the context of the contract as a whole, admits of only two possibilities – where, firstly, the words should be read as though the word ‘or’ appeared between the Principal’s name and the words ‘nominated person’ – where that is the construction found by the primary judge, with the consequence that the principal nominated itself as the superintendent at all times – where secondly is that the phrase should be read as “S.H.A. Premier Constructions Pty Ltd’s nominated person” – where the first alternative to the construction of that phrase should not be adopted – where to insert the word ‘or’ in the middle of the phrase is to say no more than the definition of ‘Superintendent’ does in any event – where, further, it results in the highly unlikely presumed intention of these two commercial parties, that the principal would be entitled to be appointed as its own superintendent – where given the difficult obligations of a superintendent in those respects where it stands between the competing interests of the principal and the contractor, and the need for it to perform those duties “honestly and fairly”, it is fanciful to conclude that the parties intended for the principal to act as superintendent – where the preferred construction is that the identified Superintendent in Item 5 is the Principal’s nominated person from time to time, in other words, the second alternative is the correct construction – where the conclusion is that SHA premier as Principal did not nominate itself as superintendent, but Item 5, on its proper construction, should be read as identifying the Superintendent as being the person nominated by SHA Premier from time to time.

Grant leave to appeal. Allow the appeals. Dismiss the originating applications. Costs. (Brief)

 

Criminal appeals

R v PBE [2019] QCA 185, 13 September 2019

Sentence Application – where the 17-year-old applicant was found guilty on his own plea of attempted armed robbery and 14 other offences in the Childrens Court – where the sentencing judge in effect sentenced the applicant to serve 16 months in detention and recorded a conviction for all offences – where the prosecutor mistakenly submitted at sentence that the applicant had had convictions recorded previously – where the sentencing judge ordered that convictions be recorded on the basis that detention was ordered for some of the offences – whether the sentencing judge erred in the exercise of the sentencing discretion by considering the ordering of detention as a distinct reason to record convictions – where for the respondent, it is submitted that, in this case, the relevant statement by the judge was an observation that the offending by the applicant had escalated to an increased level of seriousness in the context of his criminal history, rather than a statement which treated the imposition of detention as synonymous with the requirement for the recording of a conviction – where this argument is unable to be accepted, when the critical statement is seen in the context of the judge’s reasons – where in the preceding sentence, his Honour identified considerations which were favourable and unfavourable to the applicant, the latter including “the nature of the offending that is involved” and the applicant’s “repetitive offending behaviours” – where the judge then added to those circumstances the fact that “the point has now been reached where periods of detention are necessary” – where it thereby appears that the judge considered that this was a distinct reason to record convictions – where if so, that was an error in the exercise of the discretion – where there is a further part of the reasons on this subject which is of concern, although it is not specifically raised by the applicant’s argument – where the judge thought that it was most significant that the applicant had “presently poor prospects of…rehabilitation”, whilst at the same time acknowledging that his “future chances of rehabilitation” could be affected by the recording of convictions – where in effect, the judge said that the applicant was unlikely to improve in the short term, but that he had chances of rehabilitation in the longer term – where it was not to the point that the applicant’s rehabilitation might take some time – where what mattered was the impact of the recording of the conviction on his chances of rehabilitation generally, or of finding or retaining employment.

Grant leave to appeal. Allow the appeal. For the offence of committing a public nuisance, set aside the order that a conviction be recorded and order that the applicant be reprimanded for that offence. For the other offences for which an order was made that a conviction be recorded, set aside that order in each case.

 

R v Lewis [2019] QCA 192, 17 September 2019

Appeal against Conviction and Sentence – where the appellant was found guilty of grievous bodily harm with intent – where the only issue at trial was whether the appellant intended to cause grievous bodily harm to the complainant – where the Crown case on intent was substantially based on circumstantial evidence – where the trial judge gave directions to the jury regarding the element of intent as well as the drawing of inferences – where the trial judge did not direct the jury that, before they could find the appellant guilty, they needed to be satisfied beyond reasonable doubt that guilt was the only rational inference that the circumstances would enable them to draw – where there was no application for re-directions – whether the failure to do so resulted in a summing up that was, in the circumstances of the case, inadequate – where the amended grounds of appeal is the complaint that the “trial process miscarried because the jury were not properly directed on the issue of intent in that the trial judge did not tell the jurors before they could convict the appellant they must exclude beyond a reasonable doubt that the appellant acted only to frighten the complainant into leaving him alone” (ground 2.2) – where although different reasons were advanced on behalf of the appellant in support of this ground, the directions given to the jury on the element of intention were unremarkable and closely followed the guide directions on that topic in the Benchbook – where however, on the hearing of the appeal, the court invited submissions from the parties as to the adequacy of the directions the trial judge gave regarding the drawing of inferences, it being obvious that proper directions on that task would have been essential to the jury’s consideration of the appellant’s state of mind at the time of the act causing grievous bodily harm – where in this regard it may be observed that, if the directions were deficient in this way, ground 2.2 is in terms that are sufficient to capture such a complaint – where the Crown case to prove that the appellant intended to cause grievous bodily harm to the complainant rested substantially on circumstantial evidence – where the only direct evidence consisted of the statements made by the appellant before and after the relevant act – where, however, as to those, the Crown invited the jury to rely on the prior statement as a true reflection of the appellant’s intention but to reject as untrue the subsequent statement whereas the defence urged the jury to rely on the subsequent statement for the same purpose but to treat the prior statement as an idle threat – where further, the available evidence when taken as a whole supported at least one reasonable hypothesis consistent with innocence: that the relevant act (the production of a flame through use of the lighter) was intended only to “frighten the complainant into leaving [the appellant] alone” – where such an hypothesis arose not only from what the appellant said immediately after that act but also from the evidence regarding the nature of his relationship with the complainant including the history of unfulfilled threats to do harm to each other, the undisputed evidence that the appellant did not apply the flame to the complainant’s shirt or body but, instead, turned the flint on the lighter when he was some appreciable distance from her and the undisputed feature that, in doing so, this caused the petrol ‘fumes’ to combust – where the whole case was about intent – where before the jury could find the appellant guilty, they needed to be satisfied beyond reasonable doubt that the appellant intended to cause grievous bodily harm to the complainant when he did the relevant act – where such a conclusion regarding the appellant’s state of mind could only be drawn as a matter of inference from the proven circumstances including, in particular, what the appellant said and did before, during and after that act – where although it was open to the jury to infer from those circumstances that the appellant was possessed of the requisite intent at the relevant time, the hypothesis that the appellant acted only to “frighten the complainant into leaving [him] alone” was also open – where unless the jury were satisfied that any such hypothesis had been excluded beyond reasonable doubt, their duty was to acquit, and that is something that ought to have been the subject of explicit directions – where without them, the summing up as a whole was inadequate – where although there was no application for re-directions on any of this, given the significance of the issue to the appellant’s chance of acquittal, the inadequacy of the summing up in the respects identified led to a miscarriage of justice and, on that account, the conviction on count 3 must be quashed and a retrial on that count must be ordered.

Appeal against conviction on count 3 of the indictment allowed. Verdict of guilty on count 3 of the indictment is set aside. Re-trial on count 3 of the indictment ordered.

 

R v MDD [2019] QCA 197, Date of Orders: 29 April 2019; Date of Publication of Reasons: 27 September 2019

Sentence Application – where the applicant pleaded guilty in the Childrens Court to 21 counts and charges including armed robbery in company with personal violence, burglary and stealing and common assault – where the applicant was sentenced to 17 months’ detention on each count, served concurrently, to be released after serving 60%, with time on remand declared as time served – where the applicant was in detention prior to sentence, in part serving other sentences, and in part on remand for the present offending – where the period of detention served in respect of other sentences is a relevant consideration going to the total impact of the sentence to be imposed – where the sentencing judge found the period of detention served in respect of other sentences was 81 days – where the applicant had served 146 days in detention in respect of other sentences – where his Honour, labouring under that error, set a notional sentence of 20 months and then deducted the roughly three months custody which he believed could not be attributed to the current offending – where his Honour was not obliged to construct the sentence in the way he did, and was not obliged to reduce the sentence by an extra 65 days being the difference between the 146 days served and the 81 days his Honour believed had been served – where however, because the exercise of discretion was based on an error as to the number of days served not attributable under s218 Youth Justice Act 1992 (Qld) to the sentences being imposed, the sentencing process miscarried – where the sentencing Judge, faced with a pre-sentence report identifying the making of a restorative justice order, or the making of a conditional release order, as viable alternatives to detention, has not explained why one or other of those orders was not preferred to detention but then concluded that detention was necessary because the applicant had offended before – where it by no means follows that the appropriate order is one of detention simply because a child has been subject to non-custodial orders previously and has reoffended – where even if ultimately detention is ordered, as s208 obliges the sentencing court to consider all other options, the reasons for imposing detention (rather than taking other options) must be expressed in the sentencing remarks – where the sentencing remarks here do not explain why the options of the making of a restorative justice order or a conditional release order were rejected in the face of a pre-sentence report which assessed the applicant as suitable for both – where for these reasons, the sentencing process miscarried.

Leave to appeal granted. Appeal allowed. Set aside the orders made in the Childrens Court on 26 February 2019. The applicant be released under the supervision of the Chief Executive for a period of six months, and comply with the requirements set out in s193(1) of the Youth Justice Act 1992, and report to the Chief Executive by 4pm 1 May 2019, and abstain from consumption of alcohol or illicit drugs. No convictions recorded for any of these offences.

 

R v Mizner [2019] QCA 198, 27 September 2019

Sentence Application – where the applicant raped and sexually abused the two-year-old daughter of a woman he was in a relationship with – where the applicant’s conduct was only detected after the applicant had left to travel in Thailand – where the partner discovered amongst the applicant’s belongings: child exploitation material, lists of websites and handwritten notes detailing the applicant’s plans and thoughts for the targeting and kidnapping of children for the purposes of sexual exploitation – where the partner forwarded the material onto the police – where police seized computer hardware which contained child exploitation material and a camcorder and two camcorder tapes – where footage on the camcorder tapes depicted the applicant raping and sexually assaulting the partner’s two-year-old daughter – where the applicant was imprisoned in Thailand for child sex offences – where the applicant filmed himself raping and sexually assaulting a two-year-old girl in Thailand – where the applicant was sentenced to 35 years’ imprisonment in Thailand but was released after serving 10 years and 11 months after receiving various commutations and finally a royal pardon – where the applicant was deported from Thailand and arrested upon return to Australia for the offences relating to the current sentence – where the applicant was sentenced to 19 years’ imprisonment for maintaining an unlawful relationship – where the applicant appeals his sentence on the ground of manifest excess – where the maximum sentence for count 1 (maintaining) was life imprisonment – where it may be accepted that life imprisonment is therefore reserved for the most extreme or most serious forms of offending within that category – where, however, her Honour was correct to find that this case was in the most serious category – where her Honour took into account “the extreme nature of it, the seriousness and repetition of the acts, the predatory nature, the vulnerability of the victim, the gross betrayal of trust, the level of psychological harm, and the level of present danger” – where the extreme depravity displayed by the applicant in not only sexually assaulting a baby, but doing so in a way that involved 36 admitted counts of rape for his personal gratification and that of others by ultimate dissemination, all the while plotting how to kidnap children for similar purposes, is difficult to define otherwise than at the uppermost level of offending – where that leaves out of account the offences concerning child exploitation material – where whilst acknowledging that life imprisonment was open, the sentencing judge did not impose that sentence – where instead the sentence imposed was for a finite term, albeit that the effect of Part 9A of the Penalties and Sentences Act 1992 (Qld) is to require 80% of that sentence to be served before parole eligibility – where the effect of imposing a 19-year sentence rather than a life sentence is that the sentence is for a finite term rather than an indefinite term – where let it be assumed that the applicant never persuades the Parole Board to release him on parole – where on the 19-year sentence he has a final release date, whereas on a life sentence there is no final release date – where that is the reason her Honour observed that “the combined sentence of 30 years represents a significant reduction in the head sentence” – where R v C [1998] QCA 207 supports the imposition of a life sentence for the applicant’s offending – where he does not have the extensive criminal history of that offender but his offending was as bad or worse because: (i) there were 36 rapes, and multiple other degrading assaults; (ii) the sexual attacks occurred on four separate days and over a span of three months; (iii) the physical injuries were not severe but force was used, distress caused, and the assaults were themselves a perpetration of violence; (iv) the psychological harm is manifest from the victim impact statement; (v) the offences were filmed and photographed, not just for the applicant’s personal gratification, but for dissemination to others; and (vi) the applicant’s offending was premeditated, planned, and carefully hidden – where it cannot be demonstrated that a life sentence was beyond the available discretion, nor can it be said that the ultimate sentence of 19 years was manifestly excessive.

Application refused.

 

Prepared by Bruce Godfrey, Research Officer, Queensland Court of Appeal. These notes provide a brief overview of each case and extended summaries can be found at sclqld.org.au/caselaw/QCA. For detailed information, please consult the reasons for judgment.