R v M

[1994] QCA 518

[1994] QCA 518

COURT OF APPEAL
McPHERSON JA
DAVIES JA

DERRINGTON J

CA No 363 of 1994
THE QUEEN
v.

M	Applicant
BRISBANE
..DATE 26/10/94

McPHERSON JA: This is an application for leave to appeal
against concurrent sentences of imprisonment for 12 months
imposed in respect of two counts of unlawful carnal knowledge
of a girl aged 15 and imprisonment for 18 months imposed for
one count of indecent assault. The sentences followed
verdicts at trial in the District Court at which the applicant
was acquitted of two counts of rape, and of unlawfully
detaining the girl on a motor vehicle.

MR COLLINS: I'm sorry, Your Honour. The application in this matter was solely with respect to the indecent dealing.

McPHERSON JA: Yes. All right, thank you.
MR COLLINS: I'm sorry.

McPHERSON JA: All the offences in question took place in a motor vehicle late in the night or early in the morning of 18 October 1992. The applicant was aged 29 in 1992 and was 31 at the time of trial in 1994. He had worked as a storeman. He had a girlfriend named Wendy, with whom he was living in a house at Banyo with another family and other persons.

The complainant girl had also come to live there not long before the incident giving rise to the charges. On the night in question the applicant came to the complainant's bed and suggested that she come with him in a car to a friend's place.

The friend was a girl named Angela, who had recently, to the

knowledge of the complainant, had a disagreement with her
brother and in consequence had left the house.
The girl agreed to come with the applicant, but he drove on to
the beach where he twice had sexual intercourse with her.
Later he tried to compel her to have oral sex with him,
forcing her head down towards his penis. She avoided taking
it in her mouth and he desisted after some protest by her.
Because the matter was the subject of specific reference in
the course of the proceedings before us, it may be as well for

me to refer specifically to the passage in the complainant's

evidence, where she gave an account of what happened. She
said:

"He hopped back in the car and he still had his zipper and his

button undone, and he asked me if I wanted to give him a
head job, and I said no. And he said he wanted me to
give him a head job, and he got me - put me next to his

penis."

She went on to say:
"He grabbed my neck and he pulled me down to his penis. He

put my mouth down next to his penis and I just opened my

mouth."

She was asked whether his penis was actually inside her mouth
and she said:
"Not really. Just next to it sort of thing, because I

wouldn't do anything, so he just let go of me."

She added that it was right next to her nose, and that his penis was touching her mouth, indicating her top lip.

The factors going in aggravation of the offence or offences were the difference in ages; the applicant was not an immature man, and it might be noticed he had a girlfriend of his own; the complainant herself was a little over 15 years, and she was a guest in the house, who had recently arrived; she had lately left a home for girls, and was apparently without the advantage of a family network or friends to protect her.

It is evident that the applicant realised she was vulnerable and took advantage of it in order to induce her to accompany him to enable him to commit the offences. He had a few convictions for traffic offences and for some relatively trivial offences of obtaining by false pretences.

It is right to say that he appears, on the evidence, to have had a very difficult childhood which evokes some sympathy in his favour. What he did on this occasion appears to have lost

him the trust of or relationship with the girlfriend Wendy and
their two children, one of whom was on the way at the time.
He has, nevertheless, continued to support and to see the

children.

The learned sentencing Judge took a stern view of the indecent
assault. He did so possibly because a degree of compulsion
was used, even if, as it happens, the applicant desisted when
the complainant protested. It is evident that remorse was not
a factor that could be taken into account in his favour. When
interviewed by the police shortly after the event he denied
having sexual intercourse with the girl on the occasion in
question; and it seems not to have been until his counsel was
cross-examining the complainant in the course of the trial
that the concession was made that sexual intercourse had in
fact taken place.
It is not possible or proper to make too much of this point,
having regard to the fact that his attitude that he was not
guilty of rape turned out, on the jury verdicts, to have been
thoroughly justified. Nevertheless, by not admitting sexual
intercourse he no doubt put the girl and the State to a degree
of expense, which on the conduct of the trial, as it turned
out to be, was not justified. The result was that the Judge
was entitled, I think, to treat the case as one in which the
applicant had showed no remorse at all for the offence he had
committed.
The application for leave to appeal is directed only at the
sentence of 18 months for the indecent assault which, it is
said, should be reduced to 12 months. I have given careful
thought to this question and I must say that I have hesitated
about what should be done. In the end, however, I am not
persuaded that the case is one in which, sitting on appeal, we
should interfere to reduce the sentence of 18 months for the
indecent assault, in the circumstances in which it was
committed, to a lesser penalty. I need not, I think, repeat
the observations I have made about the difference in ages and
the need of the girl for protection; but the case is one in
which a judge sitting to impose a sentence could fairly have
arrived at the conclusion which was reached in this case, even
if I would perhaps not myself have imposed a sentence of quite
the same duration for the offence in question.
In all the circumstances, I do not think the application is
one which should be granted, and I would refuse it.

DAVIES JA: I agree.

DERRINGTON J: I agree.

McPHERSON JA: The order of the Court is that the application is refused.

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