R v Bielefeld - [2002] QCA 369

[2002] QCA 369

COURT OF APPEAL

WILLIAMS JA
JERRARD JA
HELMAN J

CA No 159 of 2002

THE QUEEN

GARRETT TIMOTHY BIELEFELD Applicant

BRISBANE

..DATE 19/09/2002

JUDGMENT

MR N V WESTON (instructed by Legal Aid Queensland) for the applicant

MR M J COPLEY (instructed by the Director of Public Prosecutions (Queensland)) for the respondent

HELMAN J: On 29 April this year the applicant pleaded guilty before the District Court at Southport to one count of abduction (taking away the complainant girl who was then nine years old with intent to know her carnally), one count of sodomy of the girl, and one count of unlawfully and indecently assaulting her by penetrating her vagina with a finger. The offences were all committed on 19 September 2000 at the Gold Coast, Queensland.

The learned judge sentenced the applicant to imprisonment for eight years for the sodomy and, as part of the sentence, declared the applicant to be convicted of a serious violent offence. For each of the other two offences he was sentenced to imprisonment for two years. The applicant had been subject to a probation order made in the Southport District Court on 17 February 1999 in relation to offences of unlawful use of motor vehicles and other property offences. His Honour resentenced the applicant for those offences. He imposed sentences of imprisonment for nine months in each case. All of the sentences imposed by his Honour are to be served concurrently.

The applicant seeks leave to appeal against the sentence imposed for sodomy asserting that the declaration makes the sentence manifestly excessive, and that, in making it, his Honour made an error of law. The argument advanced on behalf of the applicant at the hearing of the appeal focussed on the first ground. I should say at the outset that if his Honour erred it was in exercising his sentencing discretion and that otherwise no error of law is evident.

The applicant then aged nineteen came upon the complainant near the Nerang State Forest. She had injured her foot. He offered her a lift to her home on his motor cycle. She accepted. The applicant rode some distance past her house, stopped and carried her into the bush and there assaulted her. The learned judge described the assaults in this way:

"The prisoner removed his own pants as well as the pants of the young complainant. He placed his hand over the girl's mouth, no doubt to prevent her from screaming and yelling for help, and the child experienced difficulty in breathing. She felt the prisoner's penis enter her bottom. She tried to say something to him but was unable to do so. The child was then pulled back and the prisoner placed a finger in her vagina while still penetrating her anus with his penis. When the prisoner had finished committing the sexual offences, he pulled his own pants up and shook the motor cycle in an apparent attempt to assess the amount of petrol in the tank.…

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 Bielefeld

Details

AGLC: R v Bielefeld [2002] QCA 369
Case: [2002] QCA 369
Decision Date: 19/09/2002

CaseChat Overview and Summary

In the case of R v Bielefeld, the applicant, Garrett Timothy Bielefeld, appealed against his sentence for a series of sexual offences committed against a nine-year-old girl. Bielefeld pleaded guilty to one count of abduction, one count of sodomy, and one count of unlawfully and indecently assaulting the girl. The sentencing judge imposed a sentence of imprisonment for eight years for the sodomy offence, and two years for each of the other two offences, to be served concurrently. Bielefeld argued that the declaration of the sodomy offence as a serious violent offence made the sentence manifestly excessive and that the judge had made an error of law in making the declaration.

The Court of Appeal considered the arguments presented by Bielefeld's counsel, which focused on the lack of prior convictions for sexual offences, the applicant's youth at the time of the offence and sentencing, the limited degree of violence used, and the absence of threats and weapons. The Court acknowledged that there was some substance in these submissions but emphasised the gravity of the attack on the complainant and the predictable effects on her. The Court also considered comparable cases but found that the distinguishing features of the present case justified the sentence imposed by the sentencing judge.

The Court concluded that the sentence imposed by the sentencing judge was not manifestly excessive and did not warrant the intervention of the Court. Bielefeld's application for leave to appeal against the sentence was therefore refused. The judges agreed with the reasoning of Justice Helman and followed his proposed order. The final order of the Court was the refusal of the application.

Orders