R v B - [2000] QCA 42

[2000] QCA 42

COURT OF APPEAL

McPHERSON JA
DAVIES JA
WILSON J

CA No 345 of 1999

THE QUEEN

B Applicant

BRISBANE

..DATE 24/02/2000

JUDGMENT

McPHERSON JA: The applicant for leave to appeal was convicted on his own pleas of guilty in the District Court at Brisbane in respect of two counts of incest; that is, unlawful carnal knowledge with a lineal descendent. He was sentenced in respect of each offence to imprisonment for six years with a recommendation for parole after two years, the terms of imprisonment to be served concurrently.

The two offences were committed between 31 March 1980 and 10 May 1980 in respect of count 1, and on or about 14 May 1980 in respect of count 2. The complainant was, at the time, aged 14. She is said to have been mildly intellectually disabled and she was the daughter of the applicant.

On two occasions the applicant threatened the complainant with violence in order to have her engage in sexual activity with him. On the first occasion he made her have oral sex with him and then sexual intercourse. Both acts culminated in ejaculation. He then told her that if she informed anyone she would be in trouble.

On the second occasion he put his fingers in her vagina, had her play with his penis and then engage in sexual intercourse. On this occasion again he threatened her with trouble if she told anybody.

Two days after the last event the complainant was despatched to Wilston Youth Hostel. Her claims of abuse were repeated there but not believed. However, after attending a lecture on child abuse in 1997, she made the complaint which led to this prosecution.

The applicant made admissions in the course of what is described as a pretext phone call and he later confessed to the police in a formal interview that he had had intercourse with his daughter.

The grounds advanced in support of the application for leave to appeal are that the sentence is manifestly excessive. The applicant's earlier denial of the offences, which appears in a presentence report which was before the sentencing Judge and is now before us, has been explained on the basis that his wife was present when he was interviewed and he was consequently ashamed to confess the offence in front of her.

This argument is advanced in order to demonstrate that, despite the applicant's apparent denial of the offences in the report to which I have referred, he was in fact remorseful and he did, as appears from his being sentenced after that report was made, adhere to his plea of guilty.

The applicant made admissions to the police which led him to being charged. It is said that, without those admissions, the Crown case would have been very weak. That is a factor which may go slightly, but only very slightly, in his favour. It is the fact that a great many of the prosecutions of this kind would not be possible…

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 R v B

Details

AGLC: R v B [2000] QCA 42
Case: [2000] QCA 42
Decision Date: 24/02/2000

CaseChat Overview and Summary

The case of R v B involved the applicant, B, appealing against his conviction for two counts of incest. The applicant was found guilty of having unlawful sexual relations with his 14-year-old daughter, who was intellectually disabled. The offenses occurred between 31 March 1980 and 14 May 1980, and B was sentenced to six years of imprisonment for each count, with a recommendation for parole after two years, to be served concurrently. The applicant argued that the sentence was manifestly excessive, particularly in light of his poor health and limited life expectancy. The key legal issue in this case was whether the sentence imposed was excessive, considering the applicant's health and the mitigating factors presented.

The Court of Appeal considered the severity of the offenses and the need to deter such acts, alongside the personal circumstances of the applicant. The Court highlighted the importance of imposing appropriate penalties to maintain public confidence in the justice system. The Court also noted the significant impact of the offenses on the victim and her family. The Court concluded that the sentence was not excessive, as it was in line with previous cases involving similar offenses. The Court further determined that the applicant's health condition, although serious, did not warrant a reduction in the sentence, as it was unlikely to significantly deteriorate during the imprisonment period.

The Court of Appeal ultimately dismissed the application for leave to appeal, with all judges concurring in their decision. The judges found that the sentence was appropriate and within the range of penalties for such offenses, and that the applicant's health condition did not warrant a reduction in the sentence. The Court emphasized the importance of maintaining public confidence in the justice system by imposing appropriate penalties for serious crimes such as incest. The final order of the Court was to dismiss the application for leave to appeal.

Orders