R v L; ex parte Attorney-General - [1995] QCA 444

IN THE COURT OF APPEAL	[1995] QCA 444
SUPREME COURT OF QUEENSLAND

C.A. No. 176 of 1995

Brisbane

[R. v. L; A-G]

THE QUEEN

v.
L

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Pincus J.A. Davies J.A. Demack J.

Judgment delivered 06/10/1995
Reasons for judgment of the Court

THE ATTORNEY-GENERAL'S APPEAL AGAINST SENTENCE IS ALLOWED TO THE EXTENT THAT THE RECOMMENDATION FOR RELEASE ON PAROLE AFTER SERVING NINE MONTHS OF THE SENTENCE IS SET ASIDE.

CATCHWORDS: CRIMINAL LAW - SENTENCE; sodomy; whether delay between commission of offence and complaint to police necessarily is a mitigating factor in sentencing; whether delay in police prosecution necessarily is a mitigating factor in sentencing.

Counsel:	Mr. P. Callaghan for the appellant Mr. D. Lynch for the respondent
Solicitors:	Queensland Director of Public Prosecutions for the appellant Legal Aid Office for the respondent
Hearing Date:	19 June 1995
REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 6th day of October 1995

This is an appeal by the Attorney-General against sentences imposed in the District Court on 4 April last. On that day the respondent pleaded guilty to one count of attempted sodomy, 11 of sodomy and 10 of indecent dealing with a boy under 14 years. On the attempted sodomy he was sentenced to 3 years imprisonment, on each of the 11 sodomy counts he was sentenced to 6 years imprisonment and on each of the indecent dealing counts he was sentenced to 2 years imprisonment. All sentences were to be served concurrently. In addition the learned sentencing Judge recommended that the respondent be eligible for parole after serving 9 months imprisonment.

All of the above offences were committed between November 1962 and December 1968. We shall say something later about the delay between the commission of these offences and the respondent's arrest and conviction.

The respondent is 68 years of age having being born on 30 August 1927. At the time of commission of these offences he was between 35 and 41 years of age. The complainant at the time of commission of the offences was between 7 and 13 years of age. He is the brother of the respondent's wife.

The offences were committed at a farm owned by the complainant's parents during visits by the respondent and his wife, at several residences of the respondent and at a place where, during his school holidays, the complainant worked for the respondent. The first in time was apparently the attempted sodomy which occurred at the farm. It occurred by force, the respondent threatening to hit the complainant if he did not comply. The complainant was able to resist penetration only by contracting the cheeks of his buttocks. He had attempted to run away during the course of this incident.

Then followed continual sexual abuse over the following 6 years which included, as we have said, sodomy on 11 occasions, and also requiring the boy to masturbate him and to perform oral sex on him. The respondent's conduct was often accompanied by violence. When the complainant…

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: [1995] QCA 444
Decision Date: 6/10/1995

CaseChat Overview and Summary

The case before the Court of Appeal involved an appeal by the Attorney-General against sentences imposed on the respondent, L, by the District Court. The respondent had pleaded guilty to multiple counts of sexual offences, including attempted sodomy, sodomy, and indecent dealing with a boy under 14 years of age. The offences were committed between November 1962 and December 1968. The Court of Appeal needed to determine whether certain factors, including the delay between the commission of the offences and the respondent's arrest and conviction, should be considered as mitigating factors in sentencing.

The primary legal issues before the Court were whether the delay between the commission of the offences and the respondent's arrest and conviction should be considered as a mitigating factor in sentencing, and whether the delay in police prosecution should also be considered a mitigating factor. The Court examined previous cases to determine if such delays warranted mitigation and considered the impact of these delays on the respondent's liberty and reputation.

The Court of Appeal held that while certain delays between the commission of an offence and the imposition of a sentence could be considered mitigating factors, this was not the case here. The Court reasoned that the delay did not cause the respondent to be left in a state of apprehension or uncertainty regarding prosecution. Additionally, the Court found that the delay between the commission of the offences and the complainant's report to the police did not warrant mitigation on grounds of fairness to the respondent. The Court concluded that the mitigating factors, including the respondent's plea of guilty and cooperation with the police, were adequately reflected in the sentences imposed but did not justify an early parole eligibility date.

The Court of Appeal allowed the Attorney-General's appeal to the extent that the recommendation for release on parole after serving nine months of the sentence was set aside. The Court did not alter the sentences themselves but removed the parole eligibility recommendation, finding it disproportionate given the severity of the offences and the mitigating factors considered.

Orders