R v DMP - [2006] QDC 331

[2006] QDC 331

DISTRICT COURT
CRIMINAL JURISDICTION
JUDGE ROBIN QC
THE QUEEN
v.
DMP
BRISBANE
..DATE 03/08/2006
SENTENCE
CATCHWORDS: Criminal law - sentence - whether sentence can be qualified by both a recommendation for early post-prison community based release and a partial suspension.

HIS HONOUR: This is an unusual sentencing occasion. It starts out as the all too common situation of a stepfather seeking sexual gratification at the expense of his stepdaughter. It becomes unusual in light of Exhibit 3 which is a report about you from the psychiatrist Dr Shelley Keane. It indicates that apart from some physical difficulties about which perhaps something can be done such as your deafness, which is obviously embarrassing you today, you suffer the disadvantage of an extremely low IQ on the doctor's assessment. That was likely to cause difficulties with Court proceedings which were mentioned and it may well have some bearing on the amount of blameworthiness there may be in your dreadful offending against your stepdaughter which occurred from when she was about seven until she was about 16. The most serious count is one of maintaining an unlawful sexual relationship with her. Then there are five separate counts relating to individual incidents which she could describe in enough detail to justify charging them separately.
The background, the Court hears, is that that separately charged conduct was actually representative of many other instances of which particular detail couldn't be given.

You have been insistent that, although charged with rape at One stage on a basis that was never made clear to the Court, You never raped the girl and, indeed, on the facts as presented by the Prosecutor there never was penetration of her vagina either by a finger or anything. There were occasions of simulated sex which involved rubbing your penis close to her, many occasions of masturbation by you in the girl's presence, often after you had sought stimulation by merely getting her to expose her vagina to you. You frequently ejaculated in her presence, but never in or on her, always on to tissues which you had by you or the toilet if the offending behaviour occurred in a bathroom.

2

SENTENCE
It seemed to me the most serious of the offences separately charged was count 3 which involved your getting the child to fellate you.
You have made a point, it seems to me, of stressing that the child was not forced and that whenever she asked you to stop some particular activity, you would do it.
It is rather unlikely, I would think, that a girl so young was intending to indicate consent or was even capable of indicating consent with the understanding which the law requires. From the point of view of the law, a child under 16 is not able to consent to sexual activity and anything of that kind perpetrated on or with her by an adult person constitutes an offence. This unfortunate child whose victim impact statement I have was under 12 for…

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 DMP

Details

AGLC: R v DMP [2006] QDC 331
Case: [2006] QDC 331
Decision Date: 3/08/2006

CaseChat Overview and Summary

In the case of The Queen v. DMP, the defendant was convicted of multiple counts of sexual offences against his stepdaughter, who was under the age of 16 at the time of the offences. The case was heard in the District Court of Queensland. The primary legal issue before the court was whether it was appropriate to impose a sentence that included both a recommendation for early post-prison community-based release and a partial suspension of the sentence. The court needed to determine if such an unusual sentence was permissible under the law and if so, how it should be structured to balance the interests of the defendant, the victim, and the community.

The court considered the unique circumstances of the case, including the defendant's low IQ and the impact this had on his culpability and potential for rehabilitation. It also noted the defendant's guilty plea, which warranted some credit. The court balanced these factors against the severity and duration of the offences, ultimately deciding that a sentence of five years imprisonment for the most serious offence, and one year for the other counts, was appropriate. The sentences were ordered to run concurrently and would be suspended after the defendant served two years, with a recommendation for post-prison community-based release after 20 months. This sentence aimed to provide a deterrent effect while also offering the possibility of early release subject to appropriate conditions and supervision.

In summary, the court ruled that an unconventional sentencing approach could be justified in this case, combining elements of both a suspended sentence and a recommendation for early release. The rationale behind this decision was to provide the defendant with the opportunity for early release under controlled conditions, while also ensuring that the sentence retained a sufficient deterrent effect. The court's final order was that the defendant would serve two years in prison before the remaining three years were suspended, with a recommendation for post-prison community-based release after 20 months.

Orders