R v C - [1999] QCA 458

99.458

COURT OF APPEAL

McMURDO P DAVIES JA WILLIAMS J

CA No 264 of 1999
THE QUEEN
v.

(Applicant) Appellant

BRISBANE
..DATE 02/11/99
021199 T8/BP17 M/T COA264/99
DAVIES JA: The applicant pleaded guilty to four offences
against s.210 of the Criminal Code, involving his natural
daughter, Amanda, who was five when the offences were
committed.

He also pleaded guilty to a number of counts involving the showing of a pornographic video to four other children.

The offences involving his own child consisted of two offences of touching his child on the vagina, though on neither occasion did he attempt to penetrate it.

The first of these occurred when the child was living with the applicant pursuant to an arrangement with the child's mother from whom the applicant was estranged. It involved the touching directly on to the vagina by moving his finger backwards and forwards.

The second offence of a similar kind occurred some months later when the child and her mother were staying with the applicant. When the mother was asleep, the applicant took the child into his bedroom and again touched her vagina.

The other counts involved the showing of a pornographic video to the same daughter, Amanda, and four other children aged five, 10, 11 and 12. The other children 021199 T8/BP17 M/T COA264/99

were the children of neighbours of the applicant. The video was shown to these children on two occasions, on each of them only for a short time. It showed sexual intercourse and oral sex.

On one of the occasions on which he showed it, a number of the children attempted to leave, and the applicant put his hand out to prevent them leaving, though they were able to leave by pushing his hand aside. No force was used on any of these occasions, nor were any threats made to any of the children involved, nor were any payments made to any of the children involved.

Although the applicant pleaded guilty, this was only after committal proceedings in which the children had given evidence and been cross-examined. In fact we were told it was on the eve of his trial. It must be said, however, that the cross-examination was neither prolonged nor aggressive.

There were a number of factors taken into account in the
applicant's favour by the learned sentencing judge. He
is 66 years of age with no prior convictions. He has had
a productive working life, including active service in
Korea. It was said and accepted that the applicant was
otherwise a good father to the principal complainant, and
that he was subject to some family stress at the time of
the commission of these offences.
021199 T8/BP17 M/T COA264/99
No victim impact statement on behalf of the principal
complainant was tendered. However the mother of three of
the other complainants who were members of the same
family gave a statement indicating that in respect of two
of them and also in respect of herself, there have been
some psychological consequences.

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 [1999] QCA 458
Case: [1999] QCA 458
Decision Date: 2/11/1999

CaseChat Overview and Summary

In the case of R v C, the applicant appealed against the severity of the sentence imposed for multiple offences against his young daughter and the showing of pornographic videos to several other children. The applicant, who had no prior criminal history, had committed the offences when under significant family stress. The lower court had imposed a total sentence of three and a half years imprisonment, with a recommendation for parole after 15 months. The Court of Appeal was tasked with determining whether this sentence was manifestly excessive, taking into account comparable cases and the overall criminality involved.

The court examined several precedents where the sentences were deemed excessive and found that the applicant's case, while serious, involved no physical harm, threats, or inducements. The court noted the applicant's remorse and his status as a first-time offender as mitigating factors. After reviewing similar cases, the court concluded that the imposed sentence was manifestly excessive, particularly considering the lack of violence and the relatively lower severity of the offences. The court opted to impose concurrent sentences totalling 18 months imprisonment, structured to address both the gravity of the offences and the mitigating factors present.

The Court of Appeal, therefore, granted the appeal, set aside the original sentences, and imposed new sentences as follows: one and a half years imprisonment for each of the two offences involving the applicant's daughter, and six months imprisonment for each of the six counts involving the other children. The court also declined to make an order under s.19 of the Criminal Law Amendment Act 1945, given the absence of expert evidence to support such an order.

Orders