R v KAI - [2002] QCA 378

[2002] QCA 378

COURT OF APPEAL

McPHERSON JA

WILLIAMS JA
HELMAN J

CA No 201 of 2002
DC No 30 of 2002

KAI Applicant

BRISBANE

DATE 24/09/2002

JUDGMENT

McPHERSON JA: Justice Williams will give the first judgment.

WILLIAMS JA: The applicant pleaded guilty in the District Court at Townsville to three counts of indecent dealing with a circumstance of aggravation, two counts of unlawful carnal knowledge with a circumstance of aggravation, eight counts of incest and one count of maintaining a sexual relationship with a child.

The complainant girl was aged nine years when the first offence occurred and the offences extended over a period of six years. The applicant was the complainant girl's stepfather and was aged between 39 and 45 years when the offences occurred.

The applicant and the complainant girl's mother had been in a de facto relationship for some time before they married in about February of 1995. The first of the offences occurred at about the time that that marriage occurred.

The particulars of the offences as detailed in the record show that initially there was touching on the breasts and vaginal area over clothes. That extended then to actually touching breasts and vagina and then the first act of carnal knowledge occurred in the year 1996. Later in the year 1996, the first incident of oral sex occurred, that was the applicant performed oral sex on the girl. Subsequent offences involved both vaginal intercourse and oral sex performed by each on the other.

A serious aggravating circumstance was that the complainant girl gave birth on 24 February 2001 to a baby of which the applicant was the father. That would appear to accord with the evidence that on 1 April 2000 the applicant and the girl stayed at a motel in Charters Towers and intercourse then took place; that would appear to be the approximate date of conception given the birth of the child.

The material discloses that on a number of subsequent occasions the applicant had intercourse with the girl, the last occasion being on or about 25 October 2000 when she would have been between five and six months pregnant. In my view, the fact that the applicant pleaded guilty to some five counts of incest after the girl obviously was pregnant shows that he had little or no remorse with respect to his conduct.

I should also record that it was because of a change in the law in 1997 which deemed a stepdaughter to be a lineal descendant that there are eight counts of incest after that date whereas on the two occasions on which intercourse occurred prior to then the charge was one of unlawful carnal knowledge with a circumstance of aggravation. All of those charges carried as the maximum penalty that of life imprisonment.

I would also record that the complainant girl was cross-examined at committal. It may be that it was not extensive cross-examination but, nevertheless, she was cross-examined at that stage.

The actual plea…

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 KAI

Details

AGLC: R v KAI [2002] QCA 378
Case: [2002] QCA 378
Decision Date: 24/09/2002

CaseChat Overview and Summary

The applicant, KAI, sought leave to appeal against his sentence in the Queensland Court of Appeal. KAI had pleaded guilty in the District Court at Townsville to multiple charges, including indecent dealing, unlawful carnal knowledge, incest, and maintaining a sexual relationship with a child. The victim was a nine-year-old girl at the onset of the offences, and KAI was her stepfather. The abuse spanned six years, culminating in the victim giving birth to KAI's child in February 2001. The District Court Judge sentenced KAI to 10 years' imprisonment, a term KAI considered manifestly excessive. The Court of Appeal was tasked with determining whether the sentence was indeed excessive and if the appeal should proceed.

The primary legal issue before the Court was whether the sentence imposed by the District Court was manifestly excessive, warranting an appeal. The Court considered the nature and gravity of the offences, the absence of remorse shown by KAI, and the precedent set by similar cases. The Court also noted the victim impact statement, which detailed the profound and lasting effects of the crimes on the victim and her child. The appeal hinged on whether the 10-year sentence fell outside the range of acceptable penalties for such serious offences.

The Court of Appeal found that the 10-year sentence was within the broad range of penalties imposed in similar cases, which varied from seven to 13 years. The Court acknowledged the severity of the offences, particularly the fact that KAI continued the abuse even after the victim became pregnant. Given the plea of guilty, the Court deemed a discount to the head sentence from 12 years to 10 years appropriate. The Court concluded that the sentence was not manifestly excessive and rejected the application for leave to appeal. The judges emphasised the significant impact on the victim and her child, reinforcing the appropriateness of the sentence.

The Court of Appeal dismissed the application for leave to appeal against sentence, affirming the 10-year imprisonment term imposed by the District Court. The judges concurred that the sentence was commensurate with the gravity of the offences and did not warrant an appeal.

Orders