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.

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

2 JUDGMENT

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

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…

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 [1997] QCA 213
Case: [1997] QCA 213
Decision Date: 18/06/1997

CaseChat Overview and Summary

In the case of R v B, the applicant appealed against his conviction and sentence imposed by the District Court at Rockhampton. The applicant was convicted on three counts: indecently dealing with a girl under 14 years of age, maintaining a sexual relationship with a child under 16, and indecent dealing with a child under 16 in his care. The appeal specifically targeted the sentence imposed on the count of maintaining a sexual relationship, where the applicant was sentenced to eight years imprisonment. The other two counts resulted in concurrent sentences of two years each.

The primary legal issue before the court was whether there was an alleged error of fact by the sentencing judge in relation to the frequency of the sexual intercourse. The applicant argued that the judge's statement that sexual intercourse occurred on a regular basis implied that the frequency was higher than what the evidence supported. The court examined the evidence and concluded that the term "on a regular basis" could reasonably be interpreted to mean that the incidents were more frequent than two or three times, and that no factual error was demonstrated. The court also considered whether the sentence was beyond the appropriate range, referencing a previous Court of Appeal decision, and found that the sentence, while at the higher end, was within the appropriate range.

The Court of Appeal unanimously agreed that there was no factual error in the sentencing judge's findings, and that the sentence was not beyond the appropriate range. As a result, the application for leave to appeal against the sentence was refused.

Orders