R v CC

[2004] QCA 187

SUPREME COURT OF QUEENSLAND

CITATION:

R v CC [2004] QCA 187

PARTIES:

R
v
CC
(applicant)

FILE NO/S:

CA No 51 of 2004
DC No 6 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED EX TEMPORE ON:

31 May 2004

DELIVERED AT:

Townsville

HEARING DATE:

31 May 2004

JUDGES:

McMurdo P, Williams JA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Grant leave to appeal against sentence
2. Allow the appeal to the extent of adding to the sentence imposed a recommendation that the applicant be eligible to apply for post prison community based release after serving three years

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant convicted of two counts of rape and one count of indecent assault – where sentenced to eight years imprisonment – where offences occurred some 35 years prior to his plea of guilty – where applicant now 66 years of age – where applicant has demonstrated significant rehabilitation – where complainant was 12 years old at time of offences and violence was involved – whether sentence imposed sufficiently recognised the extent to which the applicant has rehabilitated himself – whether sentence imposed manifestly excessive

R v B [2004] QCA 182; CA No 49 of 2004, 28 May 2004, considered
R v Irlam; ex parte A-G (Qld) [2002] QCA 235; CA Nos 157 and 173 of 2002, 28 June 2002, considered
R v Losch, CA No 248 of 1980, Court of Criminal Appeal Queensland, considered
R v Pont [2002] QCA 456; CA No 213 of 2002, 28 October 2002, cited

COUNSEL:

A W Moynihan for the applicant
L J Clare for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA:  The applicant pleaded guilty in the District Court at Cairns on the 28th of January 2004, to two counts of rape and one count of indecent assault.  He was sentenced to imprisonment for a period of eight years and seeks leave to appeal against that sentence on the ground that it is manifestly excessive.  The events in question occurred some 35 years prior to the plea of guilty.

Between 1 September 1968 and 30 November 1968, the complainant, then a 12 year old girl, was temporarily living with the appellant and his wife while her mother was convalescing.  The applicant was her uncle.

On an occasion during that period, he drove the complainant and her cousin to an isolated bush setting in his motor vehicle.  He ordered the distressed complainant to remove her clothes.  When she refused, he forced her into the vehicle and stripped her.  He held a knife to her throat and then had sexual intercourse with her for a period of time.  She was allowed to…