R v J - [2001] QCA 216

[2001] QCA 216

COURT OF APPEAL

McMURDO P
HELMAN J
MUIR J

CA No 5 of 2001

THE QUEEN

J Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

..DATE 01/06/2001

JUDGMENT

THE PRESIDENT: The respondent pleaded guilty in the Ipswich District Court on 13 November 2000 to seven counts of rape, three counts of indecent dealing and one count of attempted rape. The offences occurred between 1975 and 1979 when he was 16 years old. He was sentenced to two years' imprisonment suspended after six months with an operational period of four years. The appellant, the Attorney-General, appeals against that sentence on the basis that it is inadequate and also that the learned primary Judge erred in concluding that a term of imprisonment of two years was the maximum period of imprisonment that could be imposed.

The offences, as the learned primary Judge recognised, were extremely serious. When he was about 13 or 14 and his sister, "S", was aged 10 the respondent pulled a wooden crate over the top of them, touched her on the vagina, took her underwear off and lay on top of her. When she screamed he hit her across the face and told her to shut up. He then raped her and ejaculated inside her. She was bleeding and feared she might bleed to death. The respondent told her to shut up or he would get her.

On another occasion he touched "S" on the vagina in the bath. She rubbed soap into his face and he retaliated by pushing her head under the water. He then touched her on the vagina again, made her get out of the bath and lie on the floor and again raped her. He said if she told anyone about it he would kill her.

On the next occasion after a school fete he placed his hand over her mouth and raped her as she sat on his lap.

On another occasion he told her that if she stole a toy truck for him he would never touch her again. When she did so he told her that unless she went into a cane field with him he would tell her mother that she stole the truck. He then raped her in the cane field.

On two other occasions, he touched her on the vagina. On yet another occasion, when "S" was aged between 12 and 13, he asked her to put a band-aid on his finger in her mother's bedroom. He closed and locked the door, pushed her onto the bed, ripped the buttons off her shirt and raped her.

S's victim impact statement describes her life as -

"an emotional roller coaster. I have attempted suicide because of depression. I constantly feel like I'm crazy and unloved. I'm currently on antidepressants and have been for quite some time. I have two boys who are not in my care because I feel like an unfit mother at times because I sometimes let this abuse happen because I could…

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 [2001] QCA 216
Case: [2001] QCA 216
Decision Date: 01/06/2001

CaseChat Overview and Summary

In this case, the Attorney-General of Queensland has appealed against the sentence imposed on the respondent, who pleaded guilty to multiple counts of rape, indecent dealing, and attempted rape. The offences occurred between 1975 and 1979 when the respondent was aged between 16 and 18 years old. The Ipswich District Court sentenced the respondent to two years' imprisonment, suspended after six months, with an operational period of four years. The appeal focuses on the adequacy of the sentence and whether the primary judge correctly interpreted the maximum period of imprisonment that could be imposed.

The central legal issue in this case was whether the Court of Appeal should intervene in the sentence imposed by the Ipswich District Court. The appeal hinged on two main points: first, whether the primary judge erred in concluding that a term of imprisonment of two years was the maximum period of imprisonment that could be imposed under section 107B(3)(a) of the Juvenile Justice Act 1992; and second, whether the sentence was inadequate given the gravity of the offences. The appellant argued that the sentence was lenient and did not adequately reflect the seriousness of the crimes committed, especially considering the respondent's history of offending and the impact on the victims.

The Court of Appeal found that the primary judge had correctly interpreted the relevant statutory provisions. The judges held that the primary judge had considered the sentencing options available under the Children's Services Act 1965 and concluded that the respondent would have been ordered to be committed to two years' care and control if sentenced as a child. The judges also noted that the primary judge had taken into account the respondent's background and the serious nature of the offences. Despite the seemingly lenient sentence, the Court of Appeal concluded that it was not inadequate, particularly given the respondent's lack of prior criminal history and his cooperation with the authorities. The Court of Appeal also noted that the operational period of four years did not contravene the statutory provisions.

In conclusion, the Court of Appeal dismissed the appeal, affirming the sentence imposed by the Ipswich District Court. The judges acknowledged the severity of the offences but found that the sentence was within the constraints imposed by the relevant legislation and was not inadequate in the circumstances of the case.

Orders