R v C

[1995] QCA 12

IN THE COURT OF APPEAL [1995] QCA 012

SUPREME COURT OF QUEENSLAND	C.A. No. 479 of 1994
C.A. No. 500 of 1994
Brisbane
BeforeFitzgerald P. Davies J.A. McPherson J.A.
[R. v. C]

T H E Q U E E N

v.

C (Applicant)

FITZGERALD P.
DAVIES J.A.

MCPHERSON J.A.

Judgment delivered 15/02/1995

REASONS FOR JUDGMENT - THE COURT

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCES REFUSED.

CATCHWORDS:	CRIMINAL LAW - procedure - application for leave to appeal against sentence - attempted rape and indecent dealing of ten year old girl under applicant's care - sentences not excessive
Counsel:	Mrs D. Richards for the Applicant
Mr P. Callaghan for the Crown
Solicitors:	Legal Aid Office for the Applicant Queensland Director of Public Prosecutions for the Crown

Date of Hearing:1 February 1995

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 15/02/1995

This is an application for leave to appeal against sentences imposed in the Maroochydore District Court on 8 November 1994.

On that day, the applicant was convicted, after a trial, of one offence of attempted rape, for which he was sentenced to imprisonment for five years; and one offence of indecent dealing

with a child under the age of 12 years in his care, for which he was sentenced to imprisonment for three years, the sentences to be served concurrently. The applicant also appealed against his

convictions, but that appeal was abandoned prior to the hearing
of the present application.

The complainant, a young girl born on 18 August 1982, was ten years old when the offences were committed on 18 June 1993. The complainant and the applicant's children, a son and a daughter, are cousins. The applicant had ceased his relationship with the mother of his children, an aunt of the complainant, but at the time of the offences their children were residing temporarily with him. The complainant also stayed overnight at the applicant's residence, after being invited to do so by his daughter.

After the children had played and watched a video, they went to sleep on the lounge room floor covered by a blanket. The complainant awoke to find that her cousins, who had been put to bed, were no longer there, and that the applicant was lying beside her taking the blanket from her. He then pulled her

pants down and put his finger in her vagina. She pretended to be asleep. He then rolled her on her back and held her hands,

lay on top of her, tried unsuccessfully to put his penis in her

vagina, and ejaculated. He then pulled her pants back up, and
replaced the blanket.

The complainant told her cousins' mother the following morning and was examined by a doctor, who found her vaginal area "exquisitely sensitive or tender".

Counsel for the applicant emphasised a number of matters in his favour. He is aged 39 years, has no material criminal record,

has a good work record, has owned his own business since 1982

and supported his children, and it was submitted that, as a result of his conviction and imprisonment, he will lose his business and house, and contact with his children. Further, it

was pointed out that there was no violence or intimidation, no evidence that the complainant has experienced continuing effects, that the applicant desisted during the course of the offence, and that it was an isolated occurrence.

Our attention has been drawn to a number of cases, which counsel for the applicant submitted indicated that this sentence was

outside the proper exercise of the sentencing judge's discretion. Counsel for the prosecution submitted that it was

within range, although at the very top end. the limited sense that they reveal, somewhat surprisingly, sexual offences against young children involving violence in which the offenders received about the same sentence as the applicant, or even less, down to about 3½ years. To that extent, the applicant might appear to have some cause for complaint.

However, his conduct was appalling and involved serious sexual abuse of a young girl in his care pursuant to an arrangement which is commonplace in the community. Further, he has exhibited no remorse, but gave false evidence denying the offences and caused the child to be cross-examined twice.

In my opinion, the sentences are not excessive, and the application should be refused.