R v K - [2000] QCA 43

[2000] QCA 43

COURT OF APPEAL

McPHERSON JA
DAVIES JA
WILSON J

CA No 305 of 1999

THE QUEEN

K Applicant

BRISBANE

DATE 24/02/2000

JUDGMENT

McPHERSON JA: The applicant was convicted on pleas of guilty in the Children's Court at Brisbane and sentenced in respect of various offences. The sentences and the offences for which they were imposed can be described as follows: two years imprisonment in respect of assault occasioning bodily harm; four years for entering a dwelling house at night with intent; 12 years for rape; three years for assault occasioning bodily harm; and 12 years for a second count of rape. All sentences were to be served concurrently, with the result that the effective sentence is 12 years imprisonment. Pursuant to s 188(1) of the Juvenile Justice Act 1992 the applicant must serve 70 per cent of his sentence before being released. He was a child or juvenile at the date of commission of the offence and, by a slim margin, also at sentence. It is perhaps worth pointing out that, if he had been an adult, he would have served 80 per cent of the sentence inasmuch as the offences, or some of them, in this case constitute serious violent offences within the meaning of the Penalties and Sentences Act, and were committed after the provisions governing those offences came into force.

The offences were committed on three different dates on or between 22 September and 1 November 1998. They can be summarised as follows. First, in relation to count 1, the offence was committed on 22 September 1998 when the applicant threw a piece of wood through an open window of a house, hitting the complainant and knocking her unconscious. The sentence, as I have already said, for that offence was two years imprisonment. The complainant, who is a young woman, was sitting quietly in the privacy of her home when she was suddenly and unexpectedly struck in this fashion. Considerable force must have been used to project the piece of timber because she was rendered unconscious and knew nothing about what had happened until she regained consciousness.

On 18 October 1998 the complainant in count 2, who is also a young woman then aged 31 years, left the front door of her house open one night after a friend had come to visit. She later heard the door close and, on making a search, found that someone had unplugged her bedroom lamp, pulled back the bed covers, opened drawers, spread her underwear over the room, as well as scattering a packet of condoms there, and removing a light bulb from the kitchen.

Later, while the complainant was in the bathroom, she heard noises from outside, and on investigation found that her handbag was missing. She then telephoned her mother and asked her to come over, as she was becoming afraid of what was happening.

Then, on going into her five year old son's room, she saw a figure walking towards the kitchen…

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 K

Details

AGLC: R v K [2000] QCA 43
Case: [2000] QCA 43
Decision Date: 24/02/2000

CaseChat Overview and Summary

The applicant, K, appealed against his sentence imposed by the Children's Court at Brisbane, which was a total of 12 years imprisonment to be served concurrently for multiple offences, including assault occasioning bodily harm and rape. The applicant was a juvenile at the time of the offences and at the time of sentencing. The court had to decide whether the sentence was manifestly excessive and whether the youth of the applicant warranted a lesser sentence.
The court found that the applicant's personal circumstances and background were unfortunate and deserved sympathy, but these factors were not enough to warrant a lesser sentence. The court also found that the applicant showed little or no genuine remorse for his actions and posed a significant risk to the community. The court concluded that the sentence was not manifestly excessive and that the youth of the applicant did not warrant a lesser sentence, given the premeditated and violent nature of the offences. The appeal was dismissed.

Orders