R v M

[2003] QCA 443

SUPREME COURT OF QUEENSLAND

CITATION:	R v M [2003] QCA 443
PARTIES:	R v M (appellant)
FILE NO/S:	CA No 114 of 2003 CA No 276 of 2003 DC No 3292 of 2002
DIVISION:	Court of Appeal
PROCEEDINGS:	Appeal against Conviction Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	17 October 2003
DELIVERED AT:	Brisbane
HEARING DATE:	3 September 2003
JUDGES:	McMurdo P, Dutney and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1.  Appeal against conviction dismissed 2.  Application for extension of time within which to appeal against sentence allowed 3.  Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW -  APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – UNRESONABLE OR INSUPPORTABLE VERDICT – where appellant convicted of two counts of indecent treatment of child under 12 who is a lineal descendant - whether verdict unsafe and unsatisfactory and unreasonable on the evidence CRIMINAL LAW – SENTENCE -  JUDGMENT AND PUNISHMENT – FACTORS TO BE TAKEN INTO ACCOUNT -  where appellant sentenced to three years imprisonment for rape and two years imprisonment on two counts of indecent treatment, to be served concurrently – where appellant had no prior convictions – where appellant father of victim – whether sentence manifestly excessive Criminal Code 1899 (Qld), s 349 Evidence Act 1977 (Qld), s 93A Black v The Queen (1993) 179 CLR 440, referred to Mackenzie v R (1996) 190 CLR 348, considered
COUNSEL:	S J Hamlyn-Harris for the appellant C Heaton for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P:  The appellant was charged with four sexual offences alleged to have been committed on his son on about 25 November 2001.  On 8 April 2003, in the District Court at Brisbane, the jury found him guilty of count 1, rape; not guilty of count 2, rape, and not guilty of the alternative verdict on count 2, indecent dealing with a child under 16; and guilty of two counts of indecent treatment of a child under 12 who is a lineal descendant.  He appeals against those convictions on the ground that the verdict was unsafe and unsatisfactory and unreasonable on the evidence.  He was sentenced to three years imprisonment for rape and two years imprisonment on each count of indecent of treatment, all sentences to be served concurrently.  He also applies for an extension of time within which to apply for leave to appeal against sentence contending that the sentence was manifestly excessive.

The appeal against conviction

1. The appellant and his wife, the mother of the victim, were married on 25 August 1990.  Their son was born in mid-1995.  The couple separated in early 2000 and the appellant's wife had the day to day custody of their son, with the appellant exercising regular access.  He visited fortnightly and on occasions stayed overnight.  The boy and his mother…