R v G

[2000] QCA 70

[2000] QCA 70

COURT OF APPEAL

McMURDO P
DAVIES JA
MOYNIHAN J

CA NO 218 of 1999

THE QUEEN

v.

GApplicant

BRISBANE

..DATE 15/03/2000

JUDGMENT

THE PRESIDENT:  The applicant was convicted after a trial of four counts of rape in the District Court at Mackay.  He was sentenced to 10 years imprisonment and declared to be convicted of a serious violent offence.  He had no relevant prior criminal history and was 59 years of age - 50 years at the time of the offences.

The record does not include the evidence given at trial but the offences related to acts of rape committed by the applicant upon his step-daughter, who was 16 years old at the time of the first offence and a virgin.  The complainant's victim impact statement sets out the expected consequences of such an abuse of trust.

The complainant and her husband have both received counselling and the complainant is currently visiting a psychologist on a regular basis.  She continues to feel depressed, ashamed, alone, helpless and withdrawn and angry.  She suffers regularly from nightmares and flashbacks and her relationship with men has been affected.

Leading up to trial she suffered from insomnia and had to take about four weeks off work because of her many Court appearances. 

The applicant has been subsequently convicted in the Southport District Court on two charges of indecently dealing with a child under 12 years and was sentenced to 18 months imprisonment.  Those offences involved an 11 year old who was living with her mother in the applicant's house.  He fondled her breasts and placed her hand on his exposed penis and rubbed her on the vaginal area.  He was convicted on that occasion also after a trial.  Those offences occurred in 1997 and, it appears, were committed after he had been charged in respect of these offences. 

The offences with which this Court is concerned occurred prior to the coming into force of part 9A of the Penalties and Sentences Act 1992. This Court has held that part 9A of the Act does not apply to offences committed before 1 July 1997: see R v. Mason & Saunders [1998] 2 QdR 186.

The respondent, therefore, has rightly conceded that the declaration under part 9A of the Act cannot stand. The applicant does not submit that a sentence less than 10 years imprisonment should be imposed in this case. Indeed, that concession was made at the sentence and it is supported by comparable cases such as R v. Massey [1997] 1 QdR 404 and R v. Adams, 158 of 1997, 8 August 1997.

The offence constituted a shocking breach of trust.  The applicant abused his position of power over his
step-daughter for his own selfish sexual gratification.  It has had the expected long-term sequela.  The sentence of 10 years imprisonment was as is conceded within the appropriate range, although the declaration, as it is also conceded, cannot stand.

The application for leave to appeal against sentence must be granted and the appeal allowed but only to the extent of removing the declaration under part 9A of the Penalties and Sentences Act 1992.

DAVIES JA:  I agree.

MOYNIHAN J:  So do I.

THE PRESIDENT:  The order is as I have proposed.

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