R v B

[1997] QCA 213

[1997] QCA 213

COURT OF APPEAL
DOWSETT J
MACKENZIE J

HELMAN J

CA No 58 of 1997
THE QUEEN
v.

B

BRISBANE

..DATE 18/06/97

JUDGMENT
180697 D.1 T5/TES23 M/T COA131/97

DOWSETT J: The applicant was convicted in the District Court at Rockhampton on 14 February 1997 on one count of indecently dealing with a girl under the age of 14 years between 26 May 1988 and 31 December 1988, one count of maintaining a sexual relationship with a child under 16 with a circumstance of aggravation namely having unlawful carnal knowledge of her between 30 June 1992 and 1 September 1994, and one count of indecent dealing with a child under the age of 16 in his care on a date unknown between 30 November 1995 and 26 December 1995.

As I understand it, the appeal relates only to the sentence imposed in respect of count 4, that of maintaining a sexual relationship. The applicant was sentenced to eight years imprisonment on that count and to two years on each of the indecent dealing counts, the offences to be served concurrently.

The applicant was born on 9 November 1953 and is therefore presently 43 years of age. He had a fairly extensive criminal history, involving some offences of dishonesty and some street offences and one count of aggravated assault on a female in 1984 which was the last offence of which he has been previously convicted. Although he must be treated as somebody with a significant if minor criminal history, it was nonetheless a long time since he had any convictions prior to the present ones.

The complainant was the daughter of his de facto wife. She was born on 26 May 1980 and was therefore, at the time of the offence in question, between the ages of 12 and 14 years. It is not necessary that I traverse all of the incidents of the sexual

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relationship which were alleged at the trial. It is sufficient to say that it was alleged by the girl that he had carnal knowledge of her on a number of occasions throughout that period.

In particular, she said that it had occurred on two or three occasions in the bathroom and quite a few times in the bedroom.

When pressed on the number of occasions in the bedroom, and when it was suggested to her that it may have been at least two times, she replied "More than that." In addition to the acts of intercourse, I should say, the evidence revealed numerous other incidents of sexual misconduct by the applicant towards the complainant during the period over which the offence was said to have occurred.

On at least one occasion, threats were made and it is reasonable to say that the evidence discloses that he had little regard for the girl's feelings. The primary basis for attacking the sentence is an alleged error of fact by the learned sentencing Judge in that he said, "I am satisfied on the material placed before the Court during the course of the trial that sexual intercourse occurred on a regular basis with the child over that period of time."

This, it is said on behalf of the applicant, implies that the learned sentencing Judge had inferred that intercourse had occurred more frequently than was justified by the evidence. Given that the evidence establishes two or three incidents in the bathroom and more than two incidents in the bedroom, I have difficulty in reaching that conclusion.

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It is true that the expression "on a regular basis" may have a variety of meanings. Technically, I suppose, it means that the incidents occurred on a more or less evenly dispersed basis throughout the whole period. In common usage, however, it means rather less than that, and I have little difficulty in fitting within the meaning of that expression, the circumstances as described by the girl and as I have already rehearsed them.

In the circumstances, I am not satisfied that any factual error is demonstrated. A secondary attack upon the sentence was based upon the assertion that it was beyond the appropriate range for offences of this kind. The primary difficulty lying in the way of that submission is the decision of the Court of Appeal in R v. J (unreported decision - dated 9 December 1992 CA No 264 of 1992). At page 10 of the judgment the following passage appears:

"The learned sentencing Judge in this case was referred to a
number of sentences imposed by single Judges of the
District Court with respect to offences under the section.
Generally they indicated a range from 5 to 8 years for the
head sentence, sometimes with a recommendation for early
release on parole. Bearing in mind the circumstances of
aggravation established here which makes 14 years the
maximum for this offence, we are of the view that a

sentence of 7 years imprisonment, although at the higher

end of the range, is clearly within it."

The table of comparable sentences provided by the Crown in support of the sentence clearly indicates a range if not equivalent to that described in J, then perhaps a little higher.

I am not satisfied that the sentence was beyond the appropriate
range, although I agree that it was at the higher end. In the

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circumstances I would refuse leave to appeal.

MACKENZIE J: I agree.

HELMAN J: I agree.

DOWSETT J: The order of the Court will be that the application for leave to appeal against sentence is refused.

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