R v. L; Ex Parte Attorney-General - [1998] QCA 468

[1998] QCA 468

COURT OF APPEAL

de JERSEY CJ
McPHERSON JA
CHESTERMAN J

CA No 373 OF 1998

THE QUEEN

L Respondent

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

DATE 03/12/98

JUDGMENT

THE CHIEF JUSTICE: The Honourable the Attorney-General appeals against sentences imposed by a learned District Court Judge in relation to two counts of indecent dealing with a child under the age of 12 years. The first offence occurred in June to July 1996 and the second in January 1997.

The respondent was a friend of the complainant boy's family. At the time of the offences the respondent was 38 years old and the complainant was 10 years old.

I take the following account of the circumstances substantially from the respondent's counsel's written outline,

"The respondent was the station master at a central Queensland town. The complainant boy was the youngest of four children and his parents managed the local swimming pool. The respondent got to know the family and would visit their home and chat to the boy's mother. Sometimes when the mother had to go back to the pool to work the respondent would stay at the house, wait for the children to come home from work and sometimes cook a meal for the children and help them with their homework. In the June school holidays in 1996 the respondent went on holidays with the family to a large tin hut at a place called Kangaroo Creek new Bowen. The boy's grandfather was also there and other relatives of the family would occasionally visit.
One night the mattress on the complainant's bed got wet during the night. The respondent then took him into his own bed where he placed the child on to his, the respondent's stomach. They were both wearing shorts. In that position the respondent put his hand down the front of the boy's shorts and rubbed the boy's penis on the outside of his underpants. The complainant said that his, that is, the boy's penis, 'stood up'. After a time the respondent withdrew his hand and after a short time removed the boy from on top of him and placed him on the bed next to him.
The second offence occurred a couple of months later. At the time the complainant was staying on average every second weekend over the Saturday night, apparently with his brother as well. On one of those weekends the respondent took the complainant and his brother to the Fairbairn dam to go fishing from the respondent's boat. The respondent took the complainant out onto the dam in the boat to fish leaving the brother on shore and was touching the boy's penis on the outside of his pants, causing it to become erect."

The learned sentencing Judge referred to the respondent's pleas of guilty, remorse and tender of an apology to the respondent's previously unblemished record; his substantial past voluntary community work; other personal difficulty associated with the breakdown of his marriage and his isolation consequent upon these charges within…

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.

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Details

Case: [1998] QCA 468
Decision Date: 3 December 1998

CaseChat Overview and Summary

The case of R v. L; Ex Parte Attorney-General involved an appeal by the Attorney-General against sentences imposed on the respondent, L, by a District Court Judge for two counts of indecent dealing with a child under the age of 12. The offences occurred in June to July 1996 and January 1997. The respondent, a 38-year-old man, was a friend of the victim's family and had a position of trust and familiarity with the child and his family. The first offence took place when the respondent was staying with the victim's family and took the child into his bed, touching the child inappropriately. The second offence occurred during a fishing trip when the respondent indecently dealt with the child again. The District Court Judge sentenced the respondent to 15 months imprisonment wholly suspended for four years on the first count and three years' probation on the second count. The Attorney-General appealed, arguing that the sentences were manifestly inadequate, particularly in light of the gravity of the offences, the effect on the victim, and the need for general deterrence.

The Court of Appeal was required to determine whether the sentences imposed were appropriate in light of the nature of the offences and the relevant sentencing principles. The court considered the gravity of the offences, the effect on the victim, the respondent's background and mitigating factors, and the need for general deterrence. The court acknowledged the respondent's pleas of guilty, remorse, and his previously unblemished record, but emphasised that these factors should not overshadow the seriousness of the crimes committed against a young child. The court also noted the significant impact on the victim, who had been undergoing counselling since the incidents and exhibited signs of trauma. Furthermore, the court recognised the importance of general deterrence in cases involving sexual offences against children, highlighting community expectations that such crimes should be met with serious consequences.

The Court of Appeal found the sentences imposed by the District Court to be manifestly inadequate. The judges considered the principles set out in previous cases, including R v. Wain, and concluded that the gravity of the offences, the age disparity, and the effect on the victim warranted a term of actual imprisonment. The court held that while suspended sentences carry their own burdens, the circumstances of this case justified the serving of an actual term of imprisonment. The Court set aside the sentences imposed by the District Court and ordered that the respondent be imprisoned for 12 months on each count, with the terms to be suspended after the serving of three months, and an operational period of two years dating from the date of the appeal decision.

Orders