R v L - [1999] QCA 423

99.423

COURT OF APPEAL
de JERSEY CJ
DAVIES JA

JONES J

CA No 242 of 1999
THE QUEEN
v.

(Applicant) Appellant

BRISBANE
..DATE 07/10/99
071099 T8/SA2 M/T COA242/99

DAVIES JA: The applicant pleaded guilty in the District Court at Townsville on 27 October last year to one count that between 1 January 1996 and 8 July 1998 he maintained an unlawful relationship with his stepson with two circumstances of aggravation; the first that during the relationship he had carnal knowledge by anal intercourse with the child who was then under 16; the second that the child was under his care.

In fact, there were nine acts of anal intercourse which occurred over a period of two and half years whilst the child was aged between nine and a half and 12. At the relevant time, the applicant was separated from his wife, the child's mother.

On 28 June this year, the applicant was sentenced in respect of that offence to a term of 13 years imprisonment. He seeks leave to appeal against that sentence.

At the time of his sentence, the applicant was 34 years of
age, having been born on 9 August 1964. He has a number of
previous convictions, the most significant of which, for
present purposes are the following. On 3 December 1985 he was
convicted on two counts of rape and three of indecent assault
for which he was sentenced to an effective term of 10 years
imprisonment. He escaped from custody in 1991 and was
sentenced for that offence in that year to six months
imprisonment cumulative upon his previous sentence.
071099 T8/SA2 M/T COA242/99

Then on 24 October 1997 he was convicted of serious assault on a police officer, going armed, wilful damage, assault and resisting police for which he was sentenced to an effective term of 12 months imprisonment suspended after three months for an operational period of 18 months.

This short term of imprisonment interrupted the offending conduct, the subject of the present appeal, which continued unabated during part of the period of the suspended sentence.

It is unnecessary to discuss in detail the applicant's revolting conduct towards his young and vulnerable stepson over the period to which I have referred. It is sufficient to say that they included not only nine acts of anal intercourse, to which I have already referred, but two incidents where the applicant rubbed his penis against the child's anus without penetration.

The applicant's mother must have suspected, before the end, that something was amiss because she had on a number of occasions asked the child whether any sexual misconduct had occurred and the child had denied it. This was because the applicant had told him that he would hurt the child or his mother if the child ever mentioned what had occurred.

Eventually, after the last of the nine sodomies which occurred
on 7 July 1998, the child did complain to his mother who then
called in the police.
071099 T8/SA2 M/T COA242/99

The applicant…

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 [1999] QCA 423
Case: [1999] QCA 423
Decision Date: 7/10/1999

CaseChat Overview and Summary

In the matter of R v L, the appellant, L, was convicted in the District Court at Townsville of maintaining an unlawful relationship with his stepson, involving multiple instances of anal intercourse, over a period spanning from January 1996 to July 1998. L appealed against the 13-year imprisonment sentence imposed on him, arguing that it was manifestly excessive. The Court of Appeal considered the severity of the crimes, including the multiple acts of sodomy, L's prior criminal history which included rape, the age and vulnerable position of the victim, and the length of time over which the crimes persisted. The Court also noted L's guilty plea as a mitigating factor.

The legal issue before the Court was whether the sentence imposed was disproportionately high compared to similar cases. The Court compared L's case to several precedents where similar offences were committed, assessing factors such as the nature and duration of the relationship, the age of the victim, the existence of a trust relationship, and the offender's criminal history. The Court found that while the crimes were severe, the sentence was indeed excessive when compared to sentences in comparable cases, particularly as many of those cases involved offenders with less severe criminal histories or less persistent offending behaviour.

The Court of Appeal, after reviewing the precedents, concluded that a sentence of more than 11 years was not warranted. They determined that the original sentence deviated significantly from the penalties imposed in similar cases, and thus granted the appeal, setting aside the original sentence and imposing a new sentence of 11 years imprisonment. The Chief Justice and Justice Jones concurred with the majority decision, albeit with some reservations about L's potential for rehabilitation and the long-term impact of such crimes on victims.

Orders