R v C - [2002] QCA 46

[2002] QCA 46

COURT OF APPEAL

DAVIES JA
McPHERSON JA
WILLIAMS JA

CA No 369 of 2001

THE QUEEN

C Applicant

BRISBANE

..DATE 22/02/2002

JUDGMENT

McPHERSON JA: The applicant for leave to appeal against sentence was convicted on a plea of guilty in the District Court at Townsville on one count of unlawful carnal knowledge. He was sentenced to 12 months imprisonment with 44 days pre-sentence custody being declared time served under the sentence.

It is urged on his behalf in this Court that the sentence was manifestly excessive. While not complaining about the head sentence of 12 months imprisonment, the applicant through his counsel has submitted that the learned sentencing Judge erred in failing to discount the sentence for the plea of guilty in this case.

It is submitted that the utilitarian value of the plea of guilty, particularly in a case like the present involving a sexual act against a juvenile, should have been reflected in an appreciable discount in the sentence.

It is submitted that the appropriate sentence should have been 12 months imprisonment, partially suspended after three months. The applicant, it appears, has already served 16 weeks in custody and, viewing that as four months or so, it would, it is submitted, be appropriate to order the suspension of the sentence forthwith.

The circumstances of the offence are that it was committed on a date between 30th of June 2000 and the 1st of August 2000 at a time when the complainant girl was approximately
15 years and nine months old.

The background is that the complainant's mother and the offending applicant had previously lived in a defacto relationship and they had, in fact, a child from that relationship. Although their relationship of defacto husband and wife had come to an end before the subject offence was committed, the applicant had continued to reside with the complainant's mother.

The complainant herself lived with foster parents, but on occasions visited her natural mother at her home, and it was during one of these visits in the July school vacation in 2000 that the offence in question took place.

According to the applicant's statement the complainant was lying on her mother's bed watching television while the applicant was operating a computer in the same room. The applicant got up from the computer, lay down next to the complainant on the bed and asked her if she was interested in having sex with him. To that she replied, "Yeah, whatever" and proceeded to remove her shorts and underpants. They then engaged in consensual sexual intercourse.

On leaving the room immediately after the event the complainant was confronted by her mother who said, or asked, "Why?", to which the complainant answered, "I don't know."

The applicant on a later occasion invited the complainant to have sexual intercourse with him again, but she declined, telling him that she was concerned about the age difference between them. His response, either then or on some subsequent occasion, was, "How does the age…

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 C

Details

AGLC: R v C [2002] QCA 46
Case: [2002] QCA 46
Decision Date: 22/02/2002

CaseChat Overview and Summary

The applicant, C, sought leave to appeal against his sentence in the Court of Appeal of Queensland. C was convicted of one count of unlawful carnal knowledge and sentenced to 12 months imprisonment with 44 days pre-sentence custody being declared time served. The applicant argued that the sentence was manifestly excessive and that the learned sentencing Judge erred in failing to discount the sentence for the plea of guilty. It was submitted that the appropriate sentence should have been 12 months imprisonment, partially suspended after three months.

The legal issues before the Court were whether the sentence imposed was manifestly excessive and whether the learned sentencing Judge erred in failing to discount the sentence for the plea of guilty. The Court considered the increase in the maximum penalty for this offence from five years to 14 years with effect from 1 July 1997, which influenced the assessment of the sentence.

The Court of Appeal held that while the sentence might have been a little high, it was open to the learned Judge to impose a sentence of the duration that was imposed without exceeding the proper bounds of the penalty which both judicial discretion and the legislature said was fairly capable of being awarded in a case like this. The Court found that the judge's discretion had not miscarried and refused the application for leave to appeal.

The application for leave to appeal was dismissed.

Orders