R v M - [2002] QCA 409

[2002] QCA 409

COURT OF APPEAL

DAVIES JA
JERRARD JA
HELMAN J

CA No 219 of 2002

THE QUEEN

M. Applicant

BRISBANE

..DATE 03/10/2002

JUDGMENT

MR M GREEN (instructed by Legal Aid Queensland) for the
applicant

MR M D NICOLSON (instructed by the Director of Public Prosecutions (Queensland)) for the respondent

HELMAN J: On 14 June this year the applicant, a truck driver now aged sixty-one, pleaded guilty before a judge of the District Court at Brisbane to the offence of unlawfully and indecently dealing with a girl under the age of fourteen years at Brisbane in December 1987. The learned Judge sentenced him to imprisonment for three years and recommended that he be considered for parole after he had served nine months of the sentence. He applies for leave to appeal against his sentence complaining that it was manifestly excessive.

The girl was only four years old when the applicant molested her. He was forty-six. When the offence occurred the complainant was living in a household the other members of which were her mother and stepfather. The applicant, the stepfather’s father, was on a visit, and, on an occasion when she was playing in her bedroom he came and said, “We’re going to play a game. This is our game.” He said, “You’re my little princess. You’ll always be my princess. Don’t tell anyone or I’ll come into your dreams.” The complainant remembered being scared, but did not know what the applicant was talking about. She did not remember what happened in detail next, but certain parts stuck in her mind.

She remembered that she was put on the bed and he was aggressive with her. He undid his pants and said, “Touch my willie.” She said, “No, I don’t want to”, and he yelled at her saying, “Touch my willie”, and so she did. He then took all her clothes off. She was naked on the bed and cross-legged. He then started to touch her between her legs, on her vagina. He was saying, “You’re my little princess”, and he kept saying it while he was touching her. He then moved away for a short time and came back. He told her to lie down and he said to her, “Look at me” and so she did, and he put something in her vagina. It hurt and she told him that it was hurting. He was moving the object around inside her and she cried and told him to stop. He just kept on saying, “Look at me.” He was smiling the whole time. She estimated that it all went on for about twenty minutes and then something made the applicant stop and he put the object under the bed. He then told her to put her clothes back on and to sit on the floor and play. And then, before he walked out of the room, he said, “If anybody asks what happened say the boys next door poked you with a stick while climbing trees.…

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 M

Details

AGLC: R v M [2002] QCA 409
Case: [2002] QCA 409
Decision Date: 3 October 2002

CaseChat Overview and Summary

The case of R v M involved the applicant, a sixty-one-year-old truck driver, who pleaded guilty to the offence of unlawfully and indecently dealing with a girl under the age of fourteen years. The offence occurred in December 1987 when the applicant molested the complainant, who was only four years old at the time. The learned Judge sentenced the applicant to imprisonment for three years and recommended that he be considered for parole after serving nine months. The applicant applied for leave to appeal against his sentence, arguing that it was manifestly excessive. The complainant was living with her mother and stepfather at the time of the offence, and the applicant was the stepfather's father. The applicant molested the complainant in her bedroom while playing a game with her. The offence had a devastating effect on the complainant, who suffered from depression, anxiety, and panic attacks. The applicant had a history of committing offences of this kind both before and after the incident in question. The Court of Appeal was required to decide whether the sentence imposed by the learned Judge was manifestly excessive.

The Court of Appeal held that the sentence imposed by the learned Judge was not manifestly excessive. The Court noted that it was open to the Court to take into account not only prior convictions, but also convictions of subsequent offences when exercising its sentencing discretion. The Court also noted that the applicant had not committed any offences within the ten years prior to the imposition of the sentence, and that his Honour had taken this into account in making the recommendation for parole after his serving nine months imprisonment. The Court further noted that the devastating effect that the incident had upon the complainant was an important feature of the case which could not be overlooked, and that his Honour had taken this into account in arriving at the sentence he imposed. The Court of Appeal refused the application, and the applicant's sentence stood.

Orders