R v H - [1999] QCA 465

99.465

COURT OF APPEAL

DAVIES JA THOMAS JA ATKINSON J

CA No 275 of 1999
THE QUEEN
v.

(Applicant) Appellant

BRISBANE
..DATE 04/11/99

041199 T11/BP17 M/T COA266/99
DAVIES JA: The applicant pleaded guilty in the District
Court on 30 July last to nine counts involving sexual
offences against a young boy. They consisted of three
counts of indecent treatment of a child with a circumstance
of aggravation that he was under the age of 14 years, for
which he was sentenced to five years imprisonment, four
counts of indecent treatment of a child under 16, for which
he was sentenced also to five years imprisonment, the
maximum term of imprisonment for that offence, and two
counts of sodomy for which he was sentenced to eight years
imprisonment.

The learned sentencing judge added a recommendation that the applicant be eligible for release upon parole after serving three and a half years, declared that a period of 240 days spent in pre-sentence custody be imprisonment already served, and made a declaration under s.19 of the Criminal Law Amendment Act 1945 requiring the applicant to report his address to police after his release for a period of 10 years.

The applicant seeks leave to appeal against those sentences, though in effect it is an appeal against the totality of eight years with a recommendation after three and a half years.

In his written outline, the applicant conceded that the appropriate range for these offences was six to eight years, 041199 T11/BP17 M/T COA266/99

and consequently that the offence of eight years was within
the appropriate range.

That concession was withdrawn by Mrs McGinness who appeared for the applicant in this Court. She contended that in fact the appropriate range was six to seven years.

For reasons which I will mention a little later, that submission appears to me to be correct.

However it is contended in addition that the recommendation should have been made at an earlier date, the submission being, as Mrs McGinness put it in this Court, after two and a half years.

The applicant is 55 years of age. He was born on 29 July 1941. The offences occurred a substantial period ago. They occurred in two episodes, one from late 1986 to early 1987, the other from late 1990 to early 1991.

In the first period, the applicant committed three of the offences of indecent treatment and one of sodomy and in the second period, the further four offences of indecent treatment and one of sodomy.

The complainant was nine years of age when the first set of offences was committed, and 13 during the second. The applicant has no relevant prior criminal history. He has a small number of minor convictions. He is an unmarried man 041199 T11/BP17 M/T COA266/99

who became friendly with the complainant's parents, to the point where he was invited to go on holidays with them and their two children, of whom the complainant was one. He was treated as an honorary uncle…

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 [1999] QCA 465
Case: [1999] QCA 465
Decision Date: 4/11/1999

CaseChat Overview and Summary

The Court of Appeal in R v H heard an appeal against the applicant's sentences for multiple sexual offences against a child. The applicant had pleaded guilty to nine counts of indecent treatment and sodomy, and was sentenced to a total of eight years imprisonment with a recommendation for parole after three and a half years. The applicant sought leave to appeal against the sentences, arguing that the appropriate sentence range was six to seven years and that the recommendation for parole should have been made after two and a half years.

The court was required to determine the appropriate sentence range for these offences and whether the recommendation for parole should have been made at an earlier date. The court considered the severity of the offences, the applicant's lack of prior criminal history, and the mitigating factors such as his guilty plea, expressions of regret, and good character. The court also considered the impact of the offences on the complainant and his family.

The court found that the appropriate sentence range for these offences was six to seven years and that the recommendation for parole should have been made after two and a half years. The court granted the applicant leave to appeal and substituted the sentences of eight years on each of the sodomy counts with sentences of seven years imprisonment in each case. The court also substituted the recommendation made by the sentencing judge with a recommendation that the applicant be eligible for parole after serving two and a half years imprisonment. The court's decision was based on the appropriate sentence range for these offences, the mitigating factors in the applicant's favour, and the impact of the offences on the complainant and his family.

Orders