R v H - [1999] QCA 396

99.396

COURT OF APPEAL

PINCUS JA AMBROSE J CULLINANE J

CA No 241 of 1999
THE QUEEN
v.

H Applicant

BRISBANE
..DATE 16/09/99
160999 T15/SJ3 M/T COA229/99
AMBROSE J: This is an application for leave to appeal
against sentences imposed in respect of 18 offences of a
sexual nature committed upon two male children over a period
of about 18 months to which the applicant pleaded guilty on
1 July 1999.

In respect of each offence to which he pleaded guilty the applicant was sentenced to eight years' imprisonment without any recommendation in respect of parole being made; all sentences were to be served concurrently.

The applicant contends that the sentencing discretion miscarried because the sentencing Judge failed to recommend that the applicant be eligible for parole after serving three years of the eight year sentence imposed.

It is necessary to refer only briefly to offences to which the applicant pleaded guilty. The offences were committed, as I have said, in respect of each of two young boys. The first two counts, one in respect of each of those boys, charged that being an adult the applicant maintained an unlawful relationship of a sexual nature with a child under 16 years, a circumstance of aggravation being that in the course of that relationship he attempted to sodomise that child who was then under 12 years of age.

The period during which the relationship was maintained
under the first two counts extended for about 18 months.
Each of those offences attracted a maximum penalty of life
160999 T15/SJ3 M/T COA229/99
imprisonment. There were 16 other counts, five being
indecently dealing with a child under 16 years of age and in
each case the child was in fact under 12 years of age.

There was one count of wilfully and unlawfully exposing a child in fact 12 years of age to an indecent act. There were seven counts of an attempt to sodomise one or other of the children. There were two counts of attempting to procure one of the children to sodomise him. And there was one count of exposing a child to an indecent publication it being a video catalogue of homosexual and heterosexual sexual activities. Each of those 16 offences attracted a maximum penalty of 14 years imprisonment.

The applicant gave a statement to police officers on
7 September 1998. The interview lasted for about one hour
and 20 minutes and in the course of this he made very full
admissions as to his unlawful activity with the two children
and indeed it was this record of interview I think which

formed the basis upon which he was sentenced.

I do not propose to analyse in significant detail the many
sexual activities which the applicant persuaded the two
young boys to participate in with him but it will be
necessary unfortunately to make some reference to these
activities. It appears that the applicant was a long-time
friend of the father of the children. The applicant said he
first met…

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 396
Case: [1999] QCA 396
Decision Date: 16/09/1999

CaseChat Overview and Summary

In the case of The Queen v. H, the applicant sought leave to appeal against the sentences imposed for 18 sexual offences committed against two male children over an 18-month period. The applicant pleaded guilty to the charges on 1 July 1999 and was sentenced to eight years' imprisonment for each offence, with all sentences to be served concurrently, and no recommendation for parole. The applicant argued that the sentencing discretion had miscarried because the Judge failed to recommend parole eligibility after three years.

The primary legal issue before the court was whether the sentencing discretion had miscarried by not recommending parole eligibility after three years. The court had to consider the severity and nature of the offences, the extent of the applicant's cooperation, and the lack of previous convictions in determining whether the sentence was appropriate.

The Court of Appeal found that the applicant's activities were not only a gratification of his own abnormal and perverted tastes but also a deliberate effort to corrupt the children at a young age, which seemed to have succeeded. The court concluded that the sentence imposed was proper and dismissed the application for leave to appeal, finding no miscarriage of the sentencing discretion. All three judges, Pincus JA, Ambrose J, and Cullinane J, agreed that the application should be refused.

Orders