R v K

[1999] QCA 32

[1999] QCA 32

COURT OF APPEAL

McMURDO P
McPHERSON JA
WILSON J

CA No 435 of 1998

THE QUEEN

v.

K  Applicant

BRISBANE

DATE 23/02/99

JUDGMENT

THE PRESIDENT:  This is an application for extension of time within which to seek leave to appeal against sentence.  The applicant was convicted on 9 October 1998 in the District Court at Townsville of one count of assault.

The applicant had gone to trial on 11 counts of assault and assault occasioning bodily harm in relation to three of his children.  He was acquitted on 10 counts and convicted of one count of unlawful assault.  The facts of that assault were as follows.  The applicant placed a rope around the complainant's neck and pulled the complainant off the ground so that he was hanging.  The complainant was his son then aged about 14.  The applicant was aged 38 at the time.

The applicant pointed a rifle between the complainant's eyes and threatened him about making complaints to the police.  The complainant lost consciousness and was lowered to the ground.  When he regained consciousness the applicant again lifted him from the ground.  He was released when he agreed not to tell the police anything further.

The complainant was the applicant's eldest son.  When the assault occurred in May 1984 the complainant had returned to live with his father after being brought to the attention of the protection authorities.

The applicant was sentenced to 10 months imprisonment cumulative upon a two year sentence he had received for two offences of indecent dealing with a girl under 14, his daughter.

This application is brought because the applicant's application for leave to appeal against sentence was not filed until 27 November 1998, 19 days late.  A satisfactory reason has been given for the delay; his solicitor at trial mistakenly thought the applicant had legal aid and that Legal Aid were attending to the filing of the appeal.

But a further question is whether, if the application to extend time were given, the applicant would have any prospect of success.  It is submitted that having regard to the totality principle and that the offences occurred 15 years prior to trial a sentence of 10 months cumulative is manifestly excessive.

The applicant's only convictions were his two convictions for the indecent dealing of which he was convicted on 19 February 1998 and which were committed between 1 July 1978 and 28 August 1984 at about the same time as this offence.  The maximum penalty for unlawful assault is 12 months imprisonment.

Although the assault occurred in the same time span as the sexual offences this offence was of quite a different category.  For a father to conduct himself in such a way was a shocking breach of trust especially as the authorities had already intervened with a view to protecting the boy.  The actions of the applicant could have resulted in death or serious harm and must have constituted a psychologically brutal and terrifying assault.

It was a further aggravating factor if one is needed that the applicant's actions were aimed at ensuring his son did not make complaints to police.  The applicant does not have any benefit of remorse or an early guilty plea.  The circumstances of the assault make it a most serious example of offences of this nature.

The offence of assault of which the applicant was convicted is therefore so serious in my view that the applicant should not be given leave to appeal against sentence as he has no real prospects of success.  I would refuse the application.

McPHERSON JA:  I agree.

WILSON J:  I agree.

THE PRESIDENT:  The order is the application is refused.

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