R v F

[1998] QCA 131

[1998] QCA 131

COURT OF APPEAL

FITZGERALD P
PINCUS JA
MUIR J

CA No 31 of 1998

THE QUEEN

v

F  Applicant

BRISBANE

DATE 07/04/98

JUDGMENT

THE PRESIDENT:  The applicant seeks leave to appeal against sentences imposed on him in the District Court at Beenleigh on 2 February 1998 in respect of his conviction on four charges of maintaining a sexual relationship with a child under the age of 16 years.

He was sentenced to imprisonment for seven years on each charge to be served concurrently and the sentencing Judge recommended that he be eligible for release on parole after three years.

The four charges relate to behaviour engaged in by the applicant over a period of three years between January 1994 and January 1997.  There were four children involved; two pairs of sisters and at all times the applicant was in a position of trust in relation to the girls who were well known to him as the daughters of friends and/or lessees of premises that he owned.  The girls were quite young; none was older than 13 at any material time and the youngest was seven.

Briefly summarised the applicant's behaviour consisted of showing the girls pornographic videos, rubbing their breasts above and under their clothing; showering with them when they were naked; touching their bodies under the guise of washing them; rubbing their vaginas; performing oral sex; inducing the girls to masturbate him usually to ejaculation and sometimes these activities would take place in combination.  He would perform oral sex on one girl while another was masturbating him.  Sometimes two and sometimes three girls were involved at the one time.  The behaviour was obviously disgusting and serious.

However, there were factors in the applicant's favour.  He not only pleaded guilty on an ex officio indictment thereby avoiding the necessity of a committal or a trial but he did so after making full admissions to police of his own volition apparently to avoid an innocent person being implicated in complaints by one of the girls.

While his statements to police indicate that he initially attempted to portray the complainants as willing participants, the sentencing Judge apparently accepted the submission of the applicant's counsel at that time that he was remorseful and there is no suggestion that he is particularly likely to re-offend.

Secondly, there is nothing to suggest that at any time the applicant caused any direct pain or hurt to any of the girls; that his sexual acts amounted to or were intended to amount to penetration; or that he threatened them to induce their participation and cooperation.

It was common ground at his sentencing that his cooperation was induced more subtly by his relying on general feelings of loyalty and persuading them not to tell anyone because the result would be to get him into trouble.

While this does not lessen the appellant's gross misconduct it places the offences in a less serious category than some others which have come before the Court and which have…