R v B - [1994] QCA 514

B	Applicant
BRISBANE ..DATE 26/10/94

[1994] QCA 514

COURT OF APPEAL

McPHERSON JA
DAVIES JA

DERRINGTON J

CA No 360 of 1994
THE QUEEN
v.

JUDGMENT at Gympie on 19 August 1994 of five counts of indecently and unlawfully dealing with a child under the age of 12 who was in his care; three of permitting himself to be indecently dealt with by that child; and one of unlawfully exposing that child to an indecent act.

He had pleaded guilty in respect of each of those offences. He was sentenced to imprisonment for three and a half years, with a recommendation that he be considered to be eligible for release on parole after serving 15 months of that term. He seeks leave to appeal against that sentence.

All of these offences were committed between 17 July and 10 August 1993. The victim was 11 years of age at the time and the applicant was her step-father. Four of the counts of indecent dealing and two of permitting himself to be indecently dealt with were committed between 17 and 19 July 1993 while the victim's mother, the applicant's wife, was away at a funeral.

The other offences were committed between 3 and 10 August 1993 while the victim's mother was away visiting her own mother. During both periods the victim had been left in the applicant's care. The applicant's indecent behaviour commenced immediately his wife left. On driving back from the bus terminal where he had deposited her he kept asking to hold the victim's hand. Later at home he asked her to sleep within his and her mother's bed, and asked her to play doctors.

JUDGMENT When she said she didn't want to he told her not to hurt him and it looked to her as if he was going to cry. He later touched and put his finger in her vagina after taking her underpants off. He told her that he would buy her presents and give her money if she would let him touch her. The next day he asked her if he could lick her, and when she declined he said she was hurting him.

She later agreed and he took her pants off and began to lick her vagina. He then asked her to lick him, and she licked his penis. The following night followed a similar pattern. Again, a similar pattern ensued, once the wife and mother had departed on 3 August. The victim told the police the same thing happened just about every time the mother was away.

One night, during this later period, he rubbed himself around his penis with a towel and ejaculated in her presence. There can be no doubt of the seriousness of offences such as this.

The applicant, who was in a position of trust, deliberately manipulated a young child to gratify his own sexual feelings.

Deterrence of the applicant and of others who might be like- minded required the imposition of a term of imprisonment.

Nevertheless, it must…

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 [1994] QCA 514
Case: [1994] QCA 514
Decision Date: 26/10/1994

CaseChat Overview and Summary

The applicant, B, has appealed against his sentence for multiple counts of indecently dealing with a child under the age of 12 and permitting himself to be indecently dealt with by that child. The applicant pleaded guilty to five counts of indecently and unlawfully dealing with a child under the age of 12 who was in his care; three counts of permitting himself to be indecently dealt with by that child; and one count of unlawfully exposing that child to an indecent act. The offences occurred between 17 July and 10 August 1993 when the victim was 11 years old. The applicant was her step-father and committed these acts while the victim's mother was away. He was sentenced to three and a half years imprisonment with a recommendation for parole eligibility after 15 months.

The central legal issue for the Court of Appeal was whether the sentence imposed by the trial judge was excessive. The applicant argued that the sentence was too severe given the nature of the offences and mitigating factors such as his early guilty plea and remorse. The Court needed to weigh the severity of the crimes, the lack of force or penetration, the absence of long-term effects, and other mitigating factors against the need for deterrence and denunciation. The Court also needed to compare the sentence to other similar cases to determine whether it was appropriate.

The Court found that while the offences were serious, they did not reach the more severe end of the spectrum. The applicant had manipulated the child to gratify his sexual desires but had not used force, attempted penetration, or continued the conduct over a long period. There was also no evidence of serious long-term effects on the child. The trial judge had properly taken into account the applicant's previous good character and remorse. However, the Court found that the sentence was too high given the circumstances and comparable cases. The Court substituted a sentence of two and a half years imprisonment with a recommendation for parole eligibility after one year.

The Court of Appeal allowed the appeal and set aside the original sentence. It substituted a sentence of two and a half years' imprisonment with a recommendation that the applicant be eligible for parole after serving one year of that term.

Orders