R v KN

[2005] QCA 74

SUPREME COURT OF QUEENSLAND

CITATION:	R v KN [2005] QCA 74
PARTIES:	R v KN (applicant)
FILE NO/S:	CA No 19 of 2005 DC No 368 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	17 March 2005
DELIVERED AT:	Cairns
HEARING DATE:	17 March 2005
JUDGES:	McMurdo P, Jerrard JA and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time to appeal refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where applicant pleaded guilty to numerous sexual offences over a period of four to five years – victim in position of trust – sentence not manifestly excessive
COUNSEL:	J Bradshaw for the applicant C Heaton for the respondent
SOLICITORS:	Paul Williams & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent

JONES J:  The applicant seeks leave out of time to appeal against the severity of sentences imposed on him by the District Court at Cairns on the 9th of December 2004.  The reason for the application being made out of time has been explained by the applicant's counsel, Mr Bradshaw, in an affidavit sworn by him on the 2nd of February 2005.  The Crown indicated it accepts that statement of facts.  Were that the only relevant circumstances I would have favoured granting such leave.  Of more significance is whether the appeal, if leave were granted to proceed, had any prospects of success. 

The offences and penalties imposed are as follows:

Maintaining a sexual relationship with a child - eight years' imprisonment;
Seven counts of incest - four years' imprisonment on each count;
Two counts of indecent dealing with a child under the age of 12 years - two years' imprisonment on each count;
All terms of imprisonment were ordered to be served concurrently.

The complainant was born on 23rd May 1990.  The complainant was the applicant's stepdaughter.  The complainant's mother was a Filipino national who, in 1996, came to Australia with her daughter, then aged six, and soon after married the applicant.  The applicant was 57 years of age at the time of sentencing.  The offending spanned a period of five years.

The first offending occurred when the complainant was approximately nine years of age.  This involved the applicant touching the complainant on her breasts and vagina, and masturbating himself against her vagina area.  He convinced her that this was normal conduct between father and daughter.  He secured her silence by suggesting she would suffer consequences from her mother if she complained.

The first act of intercourse occurred shortly before the complainant's 12th birthday.  Sexual intercourse thereafter occurred on a regular basis.  This was possible because the mother was often absent from home on activities associated with her being a member of the Army Reserve.  In addition to the seven acts of incest identified in the…