R v H

Case [2001] QCA 167 1 May 2001

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[2001] QCA 167

COURT OF APPEAL

McPHERSON JA
THOMAS JA
MACKENZIE J

CA No 40 of 2001

THE QUEEN

H. (Applicant)

BRISBANE

..DATE 01/05/2001

JUDGMENT

McPHERSON JA: Mr Justice Thomas will give judgment in this matter.

THOMAS JA: This is a particularly depressing case. The applicant was sentenced to 17 years' imprisonment for a variety of sexual offences committed between 1982 and the end of 1998. Over that period he committed offences against three children, namely his own daughter between age about 5 to 15, his stepson between age 9 and 15, and a neighbour's female child aged 9 or 10. The indictment contained 30 counts, and in addition the sentencing Court was asked to take into account seven further matters of incest.

The applicant was 41 years old at the time of sentence. He had no relevant criminal history.

The offences included rape of the 10 year old neighbour, rape of his daughter over a number of years, maintaining a sexual relationship with his daughter, and sodomy of his stepson. The 17 year sentence was imposed in respect of the count of maintaining. There were concurrent sentences of 12 years for rape, 10 years for sodomy, and 10 years for incest. However, it is to the totality of the criminal conduct that one must look in order to assess the validity of the operative sentence of 17 years.

Following violent conduct towards his wife in late 1998 the applicant voluntarily participated in counselling. As a result of disclosures made by him to the counsellor his conduct was brought to the attention of the police. In due course the applicant gave a lengthy record of interview and did not dispute any of the allegations that were made. He was cooperative with police and pleaded guilty to an ex officio indictment, with the result that all complainants were spared the ordeal of Court attendance, along with other benefits that flow from early pleas of guilty.

In addition a psychologist's report shows that he had himself been the subject of continuing sexual abuse from his grandfather which continued well into adulthood, and he is very much the product of a corrupt environment. A psychiatric report describes him as suffering from an emotionally unstable borderline personality disorder, as a sufferer of depressive reaction, and as a man impaired by borderline intelligence.

Beyond what has already been stated, I cannot find any point of mitigation or any consideration which permits comprehension of these extraordinarily corrupt and protracted sexual depredations upon three children over a period of 16 or 17 years up to 1998. The offences against the girl next door, with whose mother the applicant had had an affair, were an abuse of his child-minding role. The rape was a forcible one, committed inside his vehicle when she was 10 years old.

She complained to her mother at the time but a decision was taken that the matter would be taken no further.

Accordingly the applicant continued his sexual activities with members of…

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 H

Details

AGLC: R v H [2001] QCA 167
Case: [2001] QCA 167
Decision Date: 01/05/2001

CaseChat Overview and Summary

The case of R v H involved the applicant appealing against his sentence for various sexual offences committed over a period of 16 to 17 years against three children, including his own daughter, his stepson, and a neighbour's child. The applicant, who had no prior criminal history, pleaded guilty to 30 counts of offences including rape, sodomy, maintaining, and incest. The applicant was sentenced to 17 years' imprisonment, with various concurrent sentences for the different offences. The appeal centred on whether the sentence was manifestly excessive, particularly in light of the applicant's guilty plea and cooperation with authorities. The Court had to consider the severity and duration of the offences, the applicant's background, and the appropriate weight to give to these factors in sentencing.

The legal issues before the Court included whether the starting point of 20 years for the primary offences was appropriate, and whether the final sentence of 17 years was manifestly excessive. The Court also had to address the applicant's argument regarding the application of the serious violent offence provisions to his maintaining charge, and the sentences for the sodomy offences. The Court considered the need for deterrence and protection of society, as well as the mitigating factors such as the applicant's background and cooperation.

The Court concluded that while the starting point and final sentence were on the higher side, they were not beyond the range open to the sentencing judge. The Court found that the severity and duration of the offences, particularly the offences against his daughter and stepson, warranted a significant sentence. The mitigating factors, while acknowledged, did not sufficiently reduce the overall gravity of the crimes. The Court also determined that the sentences for the sodomy offences needed adjustment to reflect the maximum penalties applicable at the time of the offences. The Court allowed the appeal in part, setting aside the sentences of 10 years for counts 4 to 17 and replacing them with sentences of seven years, while affirming the rest of the sentence.

The final order was that the appeal would be granted in part, the sentences on counts 4 to 17 would be set aside and replaced with seven years' imprisonment, and in all other respects, the appeal would be dismissed, and the original sentences would remain.

Orders