R v K

Case [2003] QCA 521


SUPREME COURT OF QUEENSLAND

CITATION:  R v K [2003] QCA 521
PARTIES:  R v K (applicant)
FILE NO/S:  CA No 290 of 2003 DC No 270 of 2003
DIVISION:  Court of Appeal
PROCEEDING:  Sentence Application
ORIGINATING 
COURT: 
District Court at Beenleigh
DELIVERED EX  20 November 2003
TEMPORE ON: 
DELIVERED AT:  Brisbane
HEARING DATE:  20 November 2003
JUDGES:  McMurdo P, Davies JA and Wilson J
Separate reasons for judgment of each member of the Court,
each concurring as to the order made
ORDER:  Application for leave to appeal against sentence dismissed
CATCHWORDS:  CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – applicant convicted on own plea of four counts of indecent dealing with children under 16 – where sentenced to 12 months imprisonment and three years probation with condition that he participate in program or treatment appropriate for sexual offenders – where conviction recorded – where applicant showed remorse – where early plea of guilty – where applicant seeks leave to appeal against sentence – whether sentence manifestly excessive
COUNSEL:  T Williamson for the applicant C W Heaton for the respondent
SOLICITORS:  Bartels Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the
respondent

THE PRESIDENT: Justice Wilson will deliver her reasons first. WILSON J: The applicant seeks leave to appeal against sentence. He was convicted of four counts of indecent dealing with children under 16 between December 2000 and November 2001. The children were his stepchildren. Three of the offences related to C who was aged 12 and 13 when the offences occurred and the fourth related to her sister J who was aged 14.

The offences all involved inappropriate touching. Two of them also involved digital penetration of the complainant's vagina.

The applicant pleaded guilty to an ex officio indictment. On each count a conviction was recorded. He was sentenced to 12 months imprisonment with three years probation, with the added

condition that he participate in any program or treatment
appropriate for sexual offenders.

The application for leave to appeal against sentence was brought on the basis that the sentence was excessive.

The applicant was born on 10 December 1955 so that he was aged 47 at sentence. His only other conviction is for breach of a domestic violence order which was committed in February 2002, that is, after these offences.

These offences were reported to police on 26 November 2001. liars. While he could recall only two of the incidents, he was prepared to accept the other incidents had occurred if the complainant said so. He denied digital penetration, but then said he accepted what the complainant said and he was sentenced on the basis that there had been such penetration.

Initially the applicant denied them. Some days later he
contacted police and participated in a record of interview.

As I say, he pleaded guilty, thereby saving the complainants the trauma of giving evidence and being cross-examined. His conduct is indicative of genuine remorse.

By December…

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AGLC
R v K [2003] QCA 521
Case
[2003] QCA 521
Decision Date

CaseChat Overview and Summary

In this case, the applicant was convicted on their own plea of four counts of indecent dealing with children under the age of 16. The applicant was sentenced to 12 months imprisonment and three years probation, with a condition that they participate in a program or treatment appropriate for sexual offenders. The applicant sought leave to appeal against the sentence, arguing that it was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The court was required to consider the nature and circumstances of the offence, the culpability of the offender, and any mitigating or aggravating factors. The court also had to consider the principle of proportionality in sentencing.

The court found that the sentence was not manifestly excessive. The court considered the severity of the offences, the vulnerability of the victims, and the need to deter the applicant and others from committing similar offences. The court also considered the applicant's early plea of guilty and their showing of remorse. While the sentence was severe, it was not so excessive as to shock the conscience of the court. The court dismissed the applicant's application for leave to appeal against the sentence.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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