R v CAQ

Case [1999] QCA 197 28 May 1999

No judgment structure available for this case.

Type to search within this case.

[1999] QCA 197

COURT OF APPEAL

DAVIES JA
DERRINGTON J

CHESTERMAN J

CA No 42 of 1999

THE QUEEN

CAQ	Applicant
BRISBANE DATE 28/05/99
JUDGMENT

CHESTERMAN J: On 19 February 1999 the applicant pleaded guilty to one count of maintaining a sexual relationship with a child under the age of 12 years at a time when the child was under his care, and to one count of wilfully exposing a child under the age of 12 to an indecent videotape.

He was sentenced on the first count to imprisonment for three and a half years with a recommendation that he be considered for release on parole after serving 15 months. On the second count he was sentenced to one year’s imprisonment. The applicant applies for leave to appeal against the sentence imposed on count 1 on the ground that it is manifestly excessive.

The child complainant was aged 10 and 11 at the time of the offences. The applicant was 51 when he commenced the relationship. The child was the grand-daughter of the applicant’s second wife. His matrimonial entanglements were bizarre. While married to his first wife he commenced an affair with his next door neighbour who was five years older than he. They eventually married in 1986. She is the grandmother.

In about 1996 he commenced an affair with his step-daughter, K, the child’s mother, who was then a woman in her early 30s. He left his wife to cohabit with the step-daughter. The child was part of that household. Despite these events he remained on amicable terms with his wife.

After about three months his newfound partner thought she should attempt a reconciliation with her husband, the child’s father. The applicant then returned to live with his wife. The reconciliation failed and K returned from Victoria. The applicant then left his wife again and resumed cohabitation with K. She died suddenly in July 1997.

Following her death the applicant again returned to his wife. The child lived for a time with her father but he grew tired of parental responsibility and gave the child to her grandmother to be cared for. This occurred in about November 1997. The offences were committed between then and May 1998 when the applicant’s wife discovered that he had been treating the child indecently.

The applicant’s acts consisted of touching the child on her breasts and in the vicinity of her vulva. On Some occasions he put his hand under her clothing, and on others he touched her clothing. The first instance occurred in the swimming pool when he put his hands under her costume. The child struggled and screamed, but was subdued with threats that she would get into trouble if she mentioned what had happened.

There were about 15 occasions when the applicant touched the child in the areas I have mentioned. There is no suggestion of penetration either digital or penile. Twice, it seems, once in the pool and once in the shower, the applicant put the child’s hand…

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 CAQ

Details

AGLC: R v CAQ [1999] QCA 197
Case: [1999] QCA 197
Decision Date: 28/05/1999

CaseChat Overview and Summary

The case of R v CAQ involves the applicant, who was convicted of maintaining a sexual relationship with a child under the age of 12 years, and of exposing the child to an indecent videotape. The applicant was sentenced to three and a half years imprisonment on the first count and one year on the second count. The applicant sought leave to appeal against the sentence on the first count, arguing that it was manifestly excessive. The child complainant was aged between 10 and 11 at the time of the offences, while the applicant was 51 years old. The applicant's relationship with the child was abusive and exploitative, taking advantage of the child's vulnerability and dependence.

The court had to decide whether the sentence imposed on the first count was manifestly excessive, considering the nature and circumstances of the offence, the age and relationship between the applicant and the child, and the recommended parole eligibility after 15 months. The applicant argued that the sentence was disproportionate when compared to similar cases, and that the sentencing judge had erred in considering certain incidents that were not accepted by the court. The Crown submitted that the sentence was within the appropriate range and reflected the seriousness of the offences.

The court found that while the sentence was severe, it was not manifestly excessive. The court acknowledged that the applicant's conduct was egregious and that the child's trust had been betrayed for the applicant's own gratification. The court also noted that the applicant had pleaded guilty, made full admissions, and avoided causing further distress to the child by agreeing to a hand-up committal. The recommendation for parole eligibility after 15 months also reduced the severity of the sentence. The court concluded that the sentencing judge was entitled to take a stern view of the offence and that the sentence was within the permissible range.

The application for leave to appeal was refused. The court held that the sentence imposed on the first count was not manifestly excessive and that the applicant had not demonstrated that the sentence was so disproportionate as to shock the conscience of the court. The court dismissed the application and affirmed the sentence imposed by the District Court.

Orders