R v Bell; ex parte - [2002] QCA 344

[2002] QCA 344

COURT OF APPEAL

McMURDO P
WILLIAMS JA
ATKINSON J

CA No 212 of 2002

THE QUEEN

BRUCE VINCENT BELL (Respondent)

and

ATTORNEY-GENERAL OF QUEENSLAND (Appellant)

BRISBANE

..DATE 04/09/2002

JUDGMENT

THE PRESIDENT: Justice Williams will deliver his reasons first.

WILLIAMS JA: This is an appeal by the Attorney-General, against a sentence of 15 months' imprisonment, imposed upon the respondent, consequent to his pleading guilty to a charge of indecently dealing with an intellectually impaired person.

The circumstances of the offence were not in dispute. The complainant was a 17 year old intellectually impaired girl, who at the material time, was in the care of the Department of Families Youth and Community Care.

Through her supervisor, she became known to the respondent. The respondent and some others agreed to carry out some domestic cleaning work for an elderly lady; the complainant became aware of that and asked to also attend.

In the course of carrying out the work during the day, the respondent grabbed the complainant and started kissing her. She pushed him away and made it clear that she was not interested in his advances.

Arrangements had been made for the group of workers to sleep overnight at the residence. The respondent had been allocated what was described as an upstairs bedroom and other people were to sleep in other bedrooms.

The complainant went to bed, turned off the light and at about 2.00 a.m. the respondent climbed into that bed, told her to roll over and face him. She said, "No." He then grabbed her and put his hand inside her clothing, undid her pyjama shirt, touched her on the breasts and then placed his fingers inside of her vagina.

She made an immediate complaint to other residents of the house and was taken shortly thereafter for a medical examination by a Government medical officer. That doctor found a number of abrasions and bruises to the genital area.

It is not necessary to detail the medical findings, but it would appear from them that there was a degree of forced rough handling of the complainant in the vaginal area.

The respondent, as I said, pleaded guilty and he did not subject the complainant to the necessity of giving evidence at committal. It was a full hand up committal and, to that extent, it was said that the respondent had exhibited remorse.

The respondent was aged 45 years at the time. He had a significant criminal history. Between 1975 and 1999, there were a number of convictions for driving offences, convictions for a variety of other offences, including housebreaking, wilful damage and assault, but of most significance for present purposes, is the fact that the respondent was convicted in the District Court at Ipswich on the 14th of July 1994 for the offence of rape. He was then ordered to be imprisoned for a period of five years. No details of that rape offence were placed before the learned sentencing Judge. Counsel for the prosecution before the…

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 Bell; ex parte

Details

AGLC: R v Bell; ex parte [2002] QCA 344
Case: [2002] QCA 344
Decision Date: 04/09/2002

CaseChat Overview and Summary

This appeal concerns the sentencing of Bruce Vincent Bell, who pleaded guilty to indecently dealing with an intellectually impaired 17-year-old girl. The Attorney-General appealed against the sentence of 15 months' imprisonment imposed by the sentencing judge. The key issue was whether the sentence was appropriate given the serious nature of the offence and Bell's prior conviction for rape. Both counsel for the prosecution and the defence agreed that the head sentence should be suspended after a period of time, but the Attorney-General contended that the sentence of 15 months was too lenient.

The Court of Appeal found that the sentencing judge was entitled to reduce the head sentence for mitigating factors like Bell's guilty plea and cooperation with the authorities. However, the Court concluded that the sentence of 15 months was outside the proper range of sentencing discretion given the serious nature of the offence and Bell's prior conviction for rape. The Court substituted a sentence of three years' imprisonment, suspended after 12 months, with an operational period of four years. The Court also ordered that Bell's 180 days in pre-sentence custody be deemed time already served under the sentence.

In summary, the Court of Appeal allowed the Attorney-General's appeal and substituted a harsher sentence, finding that the original sentence was too lenient given the serious nature of the offence and Bell's prior conviction for rape. The Court concluded that the substituted sentence of three years, suspended after 12 months, was appropriate in the circumstances.

Orders