R v J - [2002] QCA 48

[2002] QCA 48

COURT OF APPEAL

DAVIES JA
McPHERSON JA
WILLIAMS JA

CA No 3 of 2002

THE QUEEN

J Applicant

BRISBANE

..DATE 22/02/2002

JUDGMENT

WILLIAMS JA: After events which occurred on 8 February 2001 the applicant was charged with the attempted rape of a woman who had been his former de facto partner, with the alternative count of unlawful and indecent assault arising out of the same events. The applicant's plea of guilty to the indecent assault count was accepted in full discharge of the indictment.

The applicant and the complainant were aged about 32. They had a de facto relationship which existed for most of the period between October 1996 and September 1999. Their relationship, according to the material placed before the Court, was at times a stormy one and it does seem that their sexual encounters often involved activity which was described in the material as "rough".

After the relationship broke up the parties did see each other on occasions and indeed in about September 2000 they went on a holiday together to Bali for a little more than a fortnight. During that period sexual intercourse took place on a number of occasions. After that, the complainant indicated that the relationship was over. There was after that at least one night on which the applicant stayed at the complainant's residence and intercourse occurred.
But again, there was an intimation from the complainant on that occasion that the relationship was ended.

There followed telephone contact, generally initiated by the applicant. On the day of the offence the applicant telephoned the complainant twice at work and indicated he wanted them to meet and talk things over with a view to getting back together. The complainant informed him that the relationship was over and abruptly terminated the last call at work. That night the applicant telephoned the complainant at home. He was again informed that the relationship was over. He suggested that he come over and speak to the complainant but she indicated she did not want that. The telephone rang on a number of occasions after that but the complainant did not answer it.

At about 9 p.m. the applicant arrived at the complainant's house. He said that he was worried about her and wanted to see if she was all right. The complainant let him into the house; the applicant indicated that he felt they were still friends. There was some discussion over a period of time during which they watched a television program. During that the applicant asked for a second chance with respect to the continuation of the relationship but the complainant's attitude was as previously indicated, that it was over.

Thereafter, the applicant asked the complainant for sex. Indeed, it could be said that he pleaded with her for sex that night. At one stage it appears the complainant did indicate that she would have sexual intercourse with him but then she resiled from that by saying, "You repulse me when you touch me."…

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 J

Details

AGLC: R v J [2002] QCA 48
Case: [2002] QCA 48
Decision Date: 22/02/2002

CaseChat Overview and Summary

In the case of The Queen v. J, the applicant, previously engaged in a de facto relationship with the complainant, was charged with attempted rape and unlawful and indecent assault following an incident that took place on 8 February 2001. The applicant entered a guilty plea to the indecent assault charge, which was accepted by the court. The relationship between the parties was tumultuous and had a history of "rough" sexual encounters. After the relationship ended, the applicant made repeated attempts to reconcile with the complainant, which culminated in the charged incident. The applicant forcibly engaged in sexual acts with the complainant, leading to the charges. The Court of Appeal was tasked with assessing the sentence imposed on the applicant, specifically whether it was manifestly excessive.

The legal issues at hand were whether the sentence imposed by the lower court was appropriate given the circumstances of the offence, the relationship history between the applicant and the complainant, and the applicant's criminal history. The Court of Appeal needed to consider if the sentence was disproportionate and whether the sentencing judge appropriately balanced the victim impact statement against the history of the relationship. The appeal also examined whether the sentence conformed to established legal principles and precedents in similar cases.

The Court of Appeal found that the sentence of 12 months' imprisonment, suspended after four months, was not manifestly excessive. The court considered the facts of the case, including the background relationship, the nature of the offence, and the applicant's criminal history. The court found that the sentencing judge had appropriately weighed the factors relevant to the imposition of the sentence, including the plea of guilty. The judges noted that while the victim impact statement was somewhat exaggerated, the offence had a significant impact on the complainant. The Court of Appeal concluded that the sentence was in line with other cases and that the applicant's appeal against the sentence should be dismissed. The judges unanimously agreed on this outcome.

Orders