R v K - [1999] QCA 41

[1999] QCA 41

COURT OF APPEAL

PINCUS JA
THOMAS JA
SHEPHERDSON J

CA No 396 of 1998

THE QUEEN

K Applicant

BRISBANE

DATE 24/02/99

JUDGMENT

PINCUS JA: This is an application for leave to appeal against sentence.

The applicant is a man 74 years of age, having been born on 24 July 1924, and he was convicted on pleas of guilty of seven counts of unlawful and indecent dealing with a girl under the age of 12. There are two complainants, one of whom was aged between 8 and 12 years when the five counts involving her occurred. The other complainant was aged 10 and 11 when the two counts involving her occurred.

Consideration of the matter was complicated for the primary judge by information before the Court which indicated, as to one complainant, a continuous course of sexual interference over years including, but by no means limited to, the five counts charged and by the fact that the victim impact statement this complainant put forward suggested that all this had a very bad effect on her life. However, it appears to me that the judge did not make the error of imposing a sentence in respect of uncharged offences, a course he was not entitled to take. The sentence he imposed relating to the seven offences in respect of which there was a plea of guilty was three years, with a recommendation for consideration for parole after 12 months.

The sexual interference with the girls was fairly serious. The applicant was a family friend living with the children and their parents and, according to the information before the Court, the parents did not take steps to protect the children against the applicant. It is said against the applicant below that he took advantage of the parents' trust. It seems to me more likely that what he took advantage of was their irresponsibility, which enabled him to attack the children in a way which I will describe.

The five counts to which I have referred consisted in contact with the girl's vagina. On one occasion he had the complainant masturbate him to ejaculation and another count consisted in him having the complainant sit in his lap and he rubbed her vagina against his penis until he ejaculated on to her vagina, causing her genitals to bleed. The judge regarded that offence as being very close to rape. Rape was in fact initially charged, but that was not proceeded with.

As to the other child, the two acts of interference consisted in digital penetration of her vagina on one occasion and on another, he lay on top of the child and the applicant rubbed his penis on her vagina until he ejaculated.

It is said on behalf of the applicant that there was delay in prosecuting him but it does not appear to me that there was any mitigating delay within the principles laid down in L [1996] 2 Queensland Reports 63. At the hearing a delay of five months…

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 [1999] QCA 41
Case: [1999] QCA 41
Decision Date: 24 February 1999

CaseChat Overview and Summary

In the matter of R v K, the applicant, a 74-year-old man, sought leave to appeal against his sentence for seven counts of unlawful and indecent dealing with a girl under the age of 12. The applicant, a family friend living with the children and their parents, was convicted on pleas of guilty. The primary judge imposed a three-year sentence, with a recommendation for consideration for parole after 12 months. The applicant's counsel argued that the sentence was manifestly excessive, and that the judge should have imposed a wholly suspended sentence instead.

The legal issues before the court were whether the judge had erred in not imposing a wholly suspended sentence and whether the non-parole period of 12 months was excessive. The court considered the seriousness of the offences, the applicant's age and health, and the need for general deterrence and denunciation of the conduct. The court also compared the case to previous cases where suspended sentences were imposed, such as L [1994] QCA 380. The court concluded that the judge had not erred in imposing the sentence, and that it was not manifestly excessive.

The Court of Appeal found that the judge had not made any error in imposing the sentence, and that it was not manifestly excessive. The court considered the seriousness of the offences, the applicant's age and health, and the need for general deterrence and denunciation of the conduct. The court also compared the case to previous cases where suspended sentences were imposed, but found that the circumstances were distinguishable. The court found that the judge had properly exercised his sentencing discretion and that the recommendation for early parole did not indicate an error.

The final orders of the Court of Appeal were that the application for leave to appeal be refused, and that a warrant issue with a seven-day delay before service.

Orders