R v KJB

[2002] QCA 448

SUPREME COURT OF QUEENSLAND

CITATION:

R v KJB [2002] QCA 448

PARTIES:

R
v
KJB
(applicant)

FILE NO/S:

CA No 190 of 2002
DC No 20 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court

DELIVERED EXTEMPORE ON:

24 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

24 October 2002

JUDGES:

McPherson JA, Cullinane and Holmes JJ
Separate reasons for judgment of each member of the court, each concurring as to the order made

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – PRACTICE AND PROCEDURE – where applicant convicted of maintaining a sexual relationship with a child with a circumstance of aggravation – where applicant sentenced to eight years imprisonment with a recommendation for parole after three years – whether sentence imposed was manifestly excessive

Criminal Code Act 1899 (Qld) , s 229B

R v Batts [1997] QCA 213; CA No 58 of 1997, 18 June 1997, considered
R v Fogarty [1996] QCA  490; CA No 418 of 1996, 6 December 1996, considered
R v Jones [1992] QCA 425; CA No 264 of 1992, 4 December 1992, considered

COUNSEL:

K M McGinness for the applicant
M J Copely for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA:  I will ask Justice Cullinane to give the first judgment.

CULLINANE J:  The applicant seeks leave to appeal against a sentence of imprisonment of eight years with a recommendation that he be eligible to be considered for parole after three years imposed on him following his plea of guilty by the District Court on the 7th of May 2002, for the offence of maintaining an unlawful relationship of a sexual nature with a circumstance of aggravation, namely rape.

The offence was committed over a period of almost three years from the beginning of 1999 to November 2001.  The complainant was born on the 2nd of May 1986 and was 12 when the unlawful relationship commenced.  The applicant and the complainant's mother had married in 1998 after having lived together since 1995. 

The relationship commenced shortly before the complainant's thirteenth birthday.  The applicant's conduct towards the complainant included touching and kissing her breasts, performing oral sex upon her on one occasion, and once or twice penetrating her vagina with his fingers.  In the course of the relationship the complainant was raped by the applicant on at least two occasions.

Some parts of the complainant's statement suggests that this may have occurred on quite a number of occasions, but the learned sentencing Judge proceeded upon the basis that he raped the applicant at least twice.  The applicant's conduct occurred whilst the complainant's mother was either elsewhere in the house or asleep in bed.

The police came to speak to the applicant as a result of the complainant telling a school friend what had been happening.  Initially the applicant admitted only to the fondling of the complainant's breasts, suggesting that…