R v M - [1999] QCA 344

99.344

COURT OF APPEAL

McMURDO P PINCUS JA THOMAS JA

CA No 219 of 1999
THE QUEEN
v.

M Applicant

BRISBANE
..DATE 20/08/99
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PINCUS JA: This is an application for leave to appeal
against sentence by a middle aged man convicted of rape of
his adopted daughter. There were four rapes charged, the
first of which occurred when the complainant was 13 and last
when she was 16.

The learned primary judge, who took into account that the applicant pleaded guilty, imposed a sentence of 12 years imprisonment with the recommendation that the applicant be considered eligible for parole after having served five years.

In the judge's report to this Court her Honour drew attention to the decision of the High Court in Siganto (1998) 73 ALJR 162, and to the question whether cases which decided that Part 9A of the Penalties and Sentences Act 1992 do not apply to offences committed and before that Part came into operation should be followed. This Court had given consideration to the question mentioned by the primary judge in Staines (CA No 462 of 1998, 10 August 1999), and the Crown has not argued against the view which was expressed in that case.

The record discloses that the applicant came to trial on
these four and other counts and the jury was empanelled.
Shortly after that counsel for the applicant asked for an
adjournment to take some instructions and the result was
that when the Court resumed the applicant pleaded guilty to
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these four counts of rape, other counts which had been laid,
of unlawful and indecent dealing, being dropped.

There were, according to the submissions made by the Crown below, some other culpable acts than four rapes which were committed by the applicant, and I will mention these again later.

The complainant was adopted by the applicant and his wife when she was five years of age and she understood herself to be the applicant's natural daughter. Just before her 13th birthday the applicant offered to buy the complainant a cassette player if she had intercourse with him.

It appears that this offer was not accepted, but shortly after that the applicant told the complainant to get undressed and had intercourse with her without her consent.

She was a virgin at the time and the act of intercourse

caused her much distress. Immediately after the rape the
applicant took photographs of the complainant naked in

various poses.

The second rape, when the complainant was in grade 6 or
grade 7, occurred in the presence of a school friend of the
complainant. The applicant called her friend into the
bedroom where, at his direction, the complainant had lain
down to enable him to have intercourse with her, and the
applicant conversed with the friend while he was having
200899 D.1 T15/JT16 M/T COA200/99
intercourse. He invited the friend to have intercourse with
him. According to the friend's statement, the complainant
looked scared…

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 [1999] QCA 344
Case: [1999] QCA 344
Decision Date: 20/08/1999

CaseChat Overview and Summary

In R v M, the applicant, a middle-aged man, sought leave to appeal against his sentence for raping his adopted daughter. The Court of Appeal, comprising McMurdo P, Pincus JA, and Thomas JA, heard the application. The applicant was convicted of four counts of raping his adopted daughter, who was between 13 and 16 years old at the time of the offences. The primary judge sentenced the applicant to 12 years imprisonment, with the recommendation that he be considered for parole after serving five years. The primary judge noted the High Court decision in Siganto and questioned whether cases that held Part 9A of the Penalties and Sentences Act 1992 did not apply to offences committed before the Part came into operation should be followed.

The court examined the legal issue of whether the sentence imposed by the primary judge was appropriate in light of the applicant's guilty plea and the circumstances of the case. The Crown did not argue against the view expressed in Staines regarding the applicability of Part 9A. The court compared the present case with previous cases, such as Anderson, A, M, P, G, and C, where similar or lower sentences were imposed for numerous sexual offences. The court found that the 12-year head sentence was beyond the range and not justifiable in light of the comparable sentences. Pincus JA and Thomas JA agreed that the head sentence should be reduced from 12 years to 10 years, with no recommendation for parole. McMurdo P concurred with the proposed order and reasons provided by Pincus JA.

The Court of Appeal granted the applicant leave to appeal, allowed the appeal, and varied the sentence by reducing the head sentence from 12 years to 10 years and omitting the recommendation for release on parole. The rest of the sentence remained confirmed.

Orders