R v Harper - [2002] QCA 107

[2002] QCA 107

COURT OF APPEAL

McPHERSON JA
WILLIAMS JA
MUIR J

CA No 17 of 2002

THE QUEEN

STEVEN GLEN HARPER Applicant

BRISBANE

..DATE 19/03/2002

JUDGMENT

WILLIAMS JA: This is an application for leave to appeal against a series of sentences imposed on the basis that they are manifestly excessive. Counts 1 to 4 on the indictment alleged sexual assaults against two females which occurred on the evening of 21/22 July 2001.

At the time the applicant was a patron at the Mossman Hotel and the two female complainants were 18 year old female employees at the hotel. Apparently they were each wearing miniskirts at the time which was probably part of their work attire.

So far as count 1 is concerned the complainant was collecting glasses in the public bar area when the applicant approached her from behind, placed his hand up the back of her miniskirt, and touched her on the vagina. She did not suffer any physical injuries. She was shocked and upset and apparently verbally abused the applicant for his conduct.

Somewhat later that evening, between 9 p.m. and 10 p.m., the other complainant was collecting glasses in the public bar area. Again she was approached by the applicant who placed his hand up the front of her miniskirt and touched her upper thigh area near her vagina. She jumped away and again apparently abused the applicant in strong terms. That constituted count 2.

Later that evening, between 10 p.m. and 1 a.m., exactly the same thing happened involving the second complainant; that was count 3. Then at about 1.25 a.m. the applicant once again approached that complainant and on this occasion he placed his hand under the back of her skirt and, to use the word which appears in the record, he "grasped" her vagina.
That was count 4.

As a result of the trauma of those three incidents that second complainant resigned from her job. The applicant was evicted from the hotel by other hotel staff after the last of those offences. It appears that a complaint was made to the police, but it is not clear from the material when the complaint was investigated.

Count 5 on the indictment involved an offence which occurred on the 19th of August 2001. On that occasion the applicant had gone with others to a farm property. A group were sitting on the verandah of the home for some time and a nine year old girl was present. At some stage in the course of the evening it was noticed that the applicant was no longer on the verandah and the young girl's voice was heard coming from the garage. The adults went to the garage and there found the nine year old girl and the applicant in "quite close proximity". They were facing each other.

The applicant was seen to be holding the waistband of his tracksuit pants with one hand and masturbating himself with the other. He continued doing that for some 20…

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 Harper

Details

AGLC: R v Harper [2002] QCA 107
Case: [2002] QCA 107
Decision Date: 19/03/2002

CaseChat Overview and Summary

The Court of Appeal considered an application for leave to appeal against a series of sentences imposed on the basis that they were manifestly excessive. The applicant, Steven Glen Harper, was convicted on five counts related to sexual assaults and indecent exposure, occurring in various incidents at the Mossman Hotel and on a farm property. The sentences imposed were six months imprisonment on counts 1 to 3, 12 months imprisonment on counts 4 and 5, and six months imprisonment on a summary charge, all sentences to be served concurrently.

The legal issues the Court had to decide were whether the sentences imposed were manifestly excessive and if the sentence did not reflect the applicant's early plea of guilty. Counsel for the applicant argued that the sentence failed to reflect the applicant's early plea of guilty, while counsel for the respondent pointed out that most comparable sentences involved sexual assaults before the penalty for such offences was increased. The Court considered count 5, the offence involving the nine-year-old girl, to be the most serious.

The Court reasoned that the learned sentencing judge, despite the persistent conduct of the applicant, could well have imposed a sentence in excess of 12 months for count 5 alone, particularly given the increase in the maximum penalty. However, in view of the early plea of guilty, the Court found that a sentence of 12 months imprisonment, though arguably towards the top of the range, duly reflected the early plea of guilty. The Court of Appeal refused the application for leave to appeal.

The final orders were that the application for leave to appeal was dismissed, and the sentences imposed by the learned sentencing judge were upheld.

Orders