R v L - [2002] QCA 268

[2002] QCA 268

COURT OF APPEAL

McPHERSON JA
JERRARD JA
WILSON J

CA No 80 of 2002
DC No 2112 of 2001

THE QUEEN

L Applicant

BRISBANE

DATE 26/07/2002

JUDGMENT

JERRARD JA: On the 25th of February 2002 "L" pleaded guilty to two charges. One was that he, being an adult, maintained an unlawful relationship of a sexual nature with the complainant, a child under the age of 16 years who was to his knowledge his lineal descendant, and that in the course of that relationship he unlawfully and indecently dealt with her.

The plea of guilty admitted having maintained that relationship between the 1st of May 1990 and the 16th of February 1991 at Benaraby in Queensland. The second plea of guilty was to a charge of incest with the complainant on 16 February 1991 at Benaraby.

The unlawful sexual relationship which he admitted by his plea of guilty began shortly before his daughter's 15th birthday and that relationship continued for nine months. She was 15 when the act of incest occurred.

"L" was sentenced to four years' imprisonment on each count and recommended for consideration for release on parole after he had served 15 months of that term. He applies for leave to appeal against both sentences, arguing that they were manifestly excessive. He contends he ought to have been sentenced to a period of three years' imprisonment, with a recommendation that he be released on parole after serving 12 months.

The circumstances of the first offence included that on between five to 10 occasions "L" had called his daughter into the bathroom when he was showering and had her masturbate him, sometimes to ejaculation. On other occasions he went into the bathroom when she was in the bath, and when in there he fondled her breasts, touched her on her vulva, and attempted some digital vaginal penetration.

On other occasions he went into her bedroom and induced her to masturbate him and commit acts of fellatio upon him. These occurred while he touched her on her breasts and on the vulva. These incidents occurred apparently on a sporadic basis.

The act of incest occurred in his bedroom, and he desisted from the intercourse when it was plainly too painful to his daughter for him to continue. He did masturbate himself on that occasion and ejaculated onto her stomach.

The unlawful sexual relationship between "L" and his daughter came to an end in February 1991 when she told her mother, "L"'s wife, about what had been happening to her. Her mother took the complainant to the Gladstone Police and to a counsellor, but apparently no "formal" complaint to those police was made and they took no action.

The child's mother separated for a brief period from "L" but their relationship resumed and the parties moved to Western Australia, where they finally separated in or about April 1999.

In May 2000 "L", who was then living in Western Australia, was questioned by police in that State about an…

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 L

Details

AGLC: R v L [2002] QCA 268
Case: [2002] QCA 268
Decision Date: 26/07/2002

CaseChat Overview and Summary

The case of R v L involves the applicant, "L", who pleaded guilty to two charges: maintaining an unlawful sexual relationship with his daughter, a child under 16 years, and incest with her on 16 February 1991. The sexual relationship, which began when the daughter was 15 years old, continued for nine months. "L" was sentenced to four years' imprisonment for each charge, with the possibility of parole after serving 15 months. "L" sought leave to appeal against the sentences, arguing they were manifestly excessive and that he should have received a three-year sentence with parole recommended after 12 months.

The central legal issue before the court was whether the sentences imposed by the trial judge were manifestly excessive. "L" argued that his voluntary confession to the police, his participation in a counselling program, and his remorse should have resulted in a lesser sentence. The prosecution, on the other hand, contended that the sentences were appropriate given the nature and severity of the crimes committed.

The court considered the mitigating factors presented by "L", including his voluntary confession and participation in counselling, but also noted the gravity of the crimes, particularly the incest charge. The court reviewed several precedent cases to determine the appropriate sentencing range for similar offences. It found that while "L"'s actions warranted a severe sentence, the trial judge had appropriately considered the mitigating factors and imposed a sentence within the range suggested by precedent. Therefore, the court concluded that the sentences were not manifestly excessive.

The Court of Appeal dismissed the application for leave to appeal against the sentence. The judges found that the trial judge had appropriately balanced the mitigating factors with the severity of the crimes and that the sentences imposed were in line with those in similar cases. The court's decision was that the application for leave to appeal against sentence was dismissed.

Orders