R v Friend

[2002] QCA 471

SUPREME COURT OF QUEENSLAND

CITATION:	R v Friend [2002] QCA 471
PARTIES:	R v FRIEND, Gareth Llewellyn (applicant)
FILE NO/S:	CA No 233 of 2002 DC No 1838 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EXTEMPORE ON:	6 November 2002
DELIVERED AT:	Brisbane
HEARING DATE:	6 November 2002
JUDGES:	McMurdo P, McPherson JA, Mullins J Separate reasons for judgment of each member of the court, each concurring as to the orders made
ORDER:	Allow the application and appeal to the extent of varying the sentence by reducing it from five years to four years.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AFTER INQUIRY AND CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – whether sentence manifestly excessive
COUNSEL:	R East for the applicant BG Campbell for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT:  Mr Justice McPherson will deliver his reasons first.

McPHERSON JA:  The applicant was sentenced in the District Court to imprisonment for five years on one count of maintaining a sexual relationship with a child under 16, with the aggravating circumstance that he had indecently dealt with her.

The sentence followed a trial at which he was found guilty and convicted of five counts of indecent dealing, Counts 2, 3, 5, 7 and 10, as to which, individually, no further penalty was imposed.

He was not found guilty of Count 4, rape, and Count 6 and 8, indecent dealing, on which the jury were unable to agree.  The Crown did not proceed at the trial with another count of rape, Count 9, which it was unable to particularise.  Nolle prosequi was entered with respect to those counts.

The opportunity to commit the offences arose through the applicant's association with the complainant's family.  He was the boyfriend of the complainant's older sister, whom he later married and with whom he then had two children before the marriage came to an end.

From a sentencing standpoint, the most significant feature of the offending behaviour is that the complainant was only five years old when the first of the indecent acts, Count 2, took place, in May in 1991.  She was five when the second, Count 3, occurred, between five and seven for Counts 5 and 7, and between six and nine years old for Count 10, which was committed, evidently, some short time before January 1996, when the offending ceased.
The acts involved were as follows; Count 2, going into the complainant's bedroom and touching her outside the vagina, as if tickling her there; Count 3, applying Vaseline to the complainant's vagina while they were both in the bathroom.  The rape was alleged to have followed this incident.  Count 5, touching her under her underwear, and moving his finger on the outside of her vagina; Count 7, putting his finger inside her vagina, which "really hurt" the complainant; Count 10, putting his hand, either over or…