R v NJ

[2008] QCA 331

SUPREME COURT OF QUEENSLAND

CITATION:

R v NJ [2008] QCA 331

PARTIES:

R
v
NJ
(applicant/appellant)

FILE NO/S:

CA No 162 of 2008
DC No 24 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

24 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

25 September 2008

JUDGES:

MacKenzie AJA, Jones and Daubney JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   That the application for leave to appeal be granted

2.   The appeal be allowed

3.   The sentence imposed on 19 June 2008 be set aside and in lieu thereof the applicant be sentenced for a period of four years, such term to be suspended after six months with an operational period of four years

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN ALLOWED – GENERALLY – where the applicant pleaded guilty to one count of incest and was sentenced to five years imprisonment to be suspended after one year with an operational period of five years – Where the complaint was made 33 years after the commission of the offence – Whether the sentencing Judge had sufficient regard to the length of delay between the commission of the offence and the making of the complaint – Whether the sentencing Judge had sufficient regard to the ill health of the accused – Whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(6)

R v B [2000] QCA 42, considered
R v D’Arcy [2001] QCA 325, considered
R v G [1997] 1 Qd R 484; [1995] QCA 517, considered
R v Guthrie (2002) 135 A Crim R 292; [2002] QCA 509, distinguished
R v Irlam; ex parte A-G (Qld) [2002] QCA 235, cited

R v Janz[2008] QCA 55, considered
R v N [1972] QWN 1, considered
R v Pope; ex parte A-G (Qld)[1996] QCA 318, cited

COUNSEL:

K Mellifont for the applicant
G Cummings for the respondent

SOLICITORS:

Russo Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. ACKENZIE AJA: MI agree that the sentencing discretion miscarried in the respects identified by Jones J.  I agree with the orders he proposes for the reasons he gives.  I only wish to add the following additional comments.

1. The case has some features seldom found in incest cases.  Unlike the more common situation, there is only one isolated act of incest and no suggestion that any other sexual misconduct occurred at any time.  Having said that, the seriousness of the individual offence cannot be minimised because, apart from the breach of trust inherent in the offence, the applicant must have known that his daughter who was 14 and a half years old and sexually inexperienced would have been greatly traumatised by what happened.