R v K - [1998] QCA 193

COURT OF APPEAL

[1998] QCA 193

de JERSEY CJ
DEMACK J

CHESTERMAN J

CA No 127 of 1998
THE QUEEN
v.

K	(Applicant)

BRISBANE
..DATE 23/06/98
230698 D.1 T5/SB21 M/T COA149/98
DEMACK J: On 9 August 1996, the applicant was sentenced to 10
years' imprisonment following his conviction by a jury of two
counts of indecently dealing with a boy under the age of 17
years with a circumstance of aggravation and one count of
sodomy of the same boy. The offences had been committed 20
years previously.

The applicant Kuhn lived in a de facto relationship with the boy's mother who was an alcoholic. The evidence showed that conduct of that kind had been committed over an extended period commencing when the boy was in grade 1 but this was treated only as background material by the sentencing Judge. That Judge noted that Kuhn showed no remorse. An appeal against that conviction was dismissed by this Court. There was apparently no appeal against the sentence.

On 24 February 1998 Kuhn was convicted by a jury of two counts of indecently dealing with a boy under the age of 14 years and four counts of sodomy of the same boy. This boy was an older brother of the boy in the earlier trial.

Following that conviction Kuhn pleaded guilty to six counts of
rape and two counts of indecently dealing with a girl under 14
years. She was a sister of the two brothers. The same
District Court Judge dealt with the three matters. He came to
the conclusion that there should be an effective sentence of
16 years' imprisonment. He imposed sentences of six years'
imprisonment in respect of each of the charges of rape to be
served upon the expiration of the sentence of 10 years'
imprisonment imposed on 9 August 1996.
230698 D.1 T5/SB21 M/T COA149/98

The transcript of his sentencing remarks says 10 August 1997 and if that appears in the records of Corrective Services Commission it should be altered to read 9 August 1996. Lesser penalties were imposed in respect of the other charges. The issue on appeal is whether the effective sentence is manifestly excessive.

The applicant was convicted in the District Court on 2 June 1989 of one count of indecently dealing with a girl under 16 years and fined $2,000. There were no other relevant matters in his criminal history.

To put the matter in some context it is necessary to refer briefly to the facts. The complainant boy in respect of whom sentences were imposed this year was the third child in a family of six children being born on 4 August 1963. His parents separated when he was four years old and thereafter Kuhn formed a relationship with his mother. As I have said that woman was an alcoholic.

Count 1 in respect of that boy occurred when the boy was four years old and it involved the touching of his penis. The second count was of a similar nature.…

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 [1998] QCA 193
Case: [1998] QCA 193
Decision Date: 23/06/1998

CaseChat Overview and Summary

The case of R v K involves an appeal by the applicant, who was sentenced to 16 years' imprisonment for various sexual offences against children, including two counts of indecently dealing with a boy under the age of 14 years, four counts of sodomy, six counts of rape, and two counts of indecently dealing with a girl under 14 years. The applicant, Kuhn, was in a de facto relationship with the children's mother, who was an alcoholic. The issue before the Court of Appeal was whether the effective sentence was manifestly excessive.

The Court of Appeal examined the sentencing process and the factors taken into account by the sentencing judge. The Court noted that the offences were committed over an extended period, involved threats and violence, and had a significant impact on the victims. The Court also considered the applicant's criminal history, which included a previous conviction for indecently dealing with a girl under 16 years. The Court of Appeal concluded that the sentencing judge had taken into account all relevant matters and imposed a sentence that was appropriate in all the circumstances. The Court dismissed the appeal and upheld the sentence.

The final orders of the Court of Appeal were that the application was refused, and the sentence imposed by the sentencing judge was upheld. The applicant's sentence of 16 years' imprisonment was considered to be appropriate and not manifestly excessive. The Court of Appeal's decision provides guidance on the factors to be considered when sentencing an offender who commits multiple sexual offences against children.

Orders