R v AQ

[2003] QCA 479

SUPREME COURT OF QUEENSLAND

CITATION:

R v AQ [2003] QCA 479

PARTIES:

R
v
AQ
(applicant)

FILE NO/S:

CA No 264 of 2003
DC No 19 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Emerald

DELIVERED EX TEMPORE ON:

3 November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

3 November 2003

JUDGES:

McPherson JA, Williams JA and White J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Grant the application.
2. Allow the appeal.

3. Vary the sentence imposed below by suspending the term of imprisonment forthwith with an operational period of 12 months.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – SEXUAL OFFENCES – where applicant and complainant had been in a relationship – where complainant had terminated relationship – where applicant convicted of two counts of indecent assault against complainant – where applicant aged 31 with no previous criminal history – where applicant a hard worker and paying maintenance for a 12-year-old child – whether trial judge took account of matters personal to applicant

R v J [2002] QCA 048; CA No 3 of 2002; 22 February 2002, considered
R v Jones [2003] QCA 450; CA No 285 of 2003; 16 October 2003, distinguished

COUNSEL:

A W Moynihan for the applicant
M Byrne for the respondent

SOLICITORS:

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

WHITE J:  The applicant pleaded guilty in the District Court at Emerald on the 11th of August 2003 to two counts of indecent assault on the female complainant on the 7th of December 2002.  The applicant was aged 31 years at the time of the offences.  He had no previous convictions and he was employed by a family company as an excavator truck driver around mines in Central Queensland.

The complainant, who was the same age as the applicant, commenced a relationship with him in Brisbane at about the beginning of 2000.  The applicant lived in Blackwater and drove to Brisbane to see her regularly.  After a few months, the complainant moved with her two children, aged 9 and 10, to live in Blackwater with the applicant.  At the beginning of 2002, she bought her own house in Blackwater and the applicant moved into the home with her.

The relationship broke down in about mid last year, although it seems that there had been problems previously.  While the applicant was away working near Winton, the complainant moved his belongings to the family business premises where she also worked as a book and record keeper.  They eventually resumed their relationship about 4 to 6 weeks or so prior to the subject complaints being made.  The applicant would stay at the complainant’s house over night and consensual sexual relations occurred.  Whilst…