CRIMINAL LAW - sentence - indecent dealing with a girl under the age of 16 years - whether the use of the complainant’s evidence of other offences was impermissible - circumstances which a sentencing judge ought to take in account when determining the appropriate sentence
Counsel:
T. Rafter for the Applicant Ms L. Clare for the Crown
Solicitors:
Gilshenan & Luton for the Applicant Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:
16 March 1995
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 04/08/1995
The applicant was convicted on 13 December 1994 at Townsville on one count of indecent dealing with a girl under the age of 16 years. The applicant had also been indicted on three counts of incest and one count of attempted incest. During the trial the Crown withdrew one of the incest counts and the Judge directed an acquittal with respect to another but left attempted incest on the same facts to be considered by the jury. They acquitted on that count. They were unable to reach a verdict with respect to the remaining counts, one of incest and one of attempted incest. The complainant was on those relevant dates, 16 years or older, thus indecent dealing was not available in the alternative. At the end of the trial the Crown indicated that it would proceed no further with the charges in respect of which no verdict was returned.
The applicant was sentenced on 19 December 1994 to imprisonment for 2½ years and seeks leave to appeal against that sentence. Counsel for the applicant contends that the appropriate sentence should have been a term of imprisonment of 12 months. The applicant is now aged 66 years having been born on 21 January 1929. He is the complainant's grandfather. The complainant was born on 12 February 1975 and gave evidence of a course of sexual abuse by the applicant over a period from early 1989 to 1992, beginning when she was 14 years.
The complainant was brought up by her grandparents from infancy and lived with them in their home until she left in 1993. The applicant was away from home regularly in his employment as a construction worker and bridge carpenter. The complainant’s evidence was that, after she had lost her virginity to her boyfriend when aged about 14 years, the applicant began a practice of following her from the bathroom to her bedroom after she had showered. He would lie her back onto her bed, mount her and rub his penis against her naked vagina. His penis was always flaccid. He would lubricate it and use his hand to rub it against…
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 D
Sign in free to access the full text
Details
AGLC
R v D [1995] QCA 329
Case
[1995] QCA 329
Decision Date
CaseChat Overview and Summary
The appellant was convicted of indecently dealing with a girl under the age of 16 years. The court was required to consider the appropriate sentence to impose. The appellant argued that the trial judge had erred in admitting evidence of other similar offences, and that the sentence imposed was excessive. The appeal was dismissed.
The legal issues for the court's determination were whether the use of the complainant's evidence of other offences was permissible, and if not, whether this constituted a miscarriage of justice. The court was also required to consider the appropriate sentence for the offence. The court held that the trial judge was correct in admitting evidence of other offences, as it was relevant to the appellant's character and propensity to commit such offences. The court also held that the sentence imposed was not excessive, taking into account the seriousness of the offence and the appellant's criminal history. The appeal was dismissed.
The court noted that the appellant had a significant criminal history, and that the offences for which he was convicted were of a similar nature to the offence for which he was being sentenced. The court held that the trial judge was entitled to take this into account when determining the appropriate sentence. The court also noted that the complainant had provided detailed evidence of the appellant's offending behaviour, and that this evidence was relevant to the appellant's character and propensity to commit such offences. The court held that the trial judge was entitled to admit this evidence, and that its admission did not constitute a miscarriage of justice. The court further held that the sentence imposed was not excessive, taking into account the seriousness of the offence and the appellant's criminal history.
The appeal was dismissed, and the sentence imposed by the trial judge was upheld.