R v P - [2001] QCA 130

[2001] QCA 130

COURT OF APPEAL

McPHERSON JA
CHESTERMAN J
HOLMES J

CA No 4 of 2001

THE QUEEN

P (Applicant)

BRISBANE

DATE 05/04/2001

JUDGMENT

McPHERSON JA: This is an application for an extension of time within which to appeal against a sentence imposed in the District Court. The time for applying for leave to appeal against sentence expired on 12 December 2000 and it was not until 8 January 2001 that the application was filed. However, no objection is made by the Crown to the extension of time and indeed the need for it seems quite clearly to have arisen from an oversight or mistake on the part of the solicitors for which the applicant himself was not responsible. In the circumstances, the matter will be considered as if it were an application for leave to appeal against sentence which had been made in time.

The offences for which the applicant was convicted on his own pleas were two counts of indecent treatment of a child under 16 years with a circumstance of aggravation, the child in that case being aged 13 years; and eight counts of indecent treatment of a child under 16 years with a circumstance of aggravation, in that instance the child was aged 9 and, later, 10 years.

The sentence in respect of all of the offences was two years' imprisonment on each count, which meant in the end that the effective sentence was one of two years' imprisonment to be served concurrently. His Honour made no recommendation for parole.

The circumstances of the offences can be summarised as follows. First, taking counts 1 and 2 which related to the older of the two complainants, the offences were committed between March 1996 and January 1997. So far as the second of the two complainants are concerned, counts 3 to 8 and 10 to 11 were committed between 31 July 1998 and 7 February 1999. Count 9 was not proceeded with.

The facts relating to the offences are, in the case of counts 1 and 2, the complainant was the applicant's stepdaughter who was, at the time, 13 years old. On an occasion giving rise to one of the offences the applicant entered the bathroom while the complainant was naked in the bath. He joined her in the bath after playfully threatening to do so if she continued to splash him with water. He picked her up bodily and she wrapped her legs around his torso. He then slid her down his body, bringing her vaginal area into contact with his erect penis.

Later that day the plaintiff requested that the child expose her breasts to him whilst the two of them were using a computer. The complainant complied and the applicant squeezed and massaged her breasts despite her protests, saying that he thought she was enjoying it.
As regards the younger of the two complainants, she was the other stepdaughter of the applicant and, as I have already mentioned, she was 9 years of…

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 P

Details

AGLC: R v P [2001] QCA 130
Case: [2001] QCA 130
Decision Date: 05/04/2001

CaseChat Overview and Summary

This case involves an application for an extension of time to appeal against a sentence imposed in the District Court. The applicant, who pleaded guilty to multiple counts of indecent treatment of a child under 16 years, seeks leave to appeal against the sentence of two years' imprisonment, to be served concurrently. The Court of Appeal consists of McPherson JA, Chesterman J, and Holmes JCA. The legal issues before the court are whether the sentence imposed was excessive and whether the applicant's mitigating factors warranted a lesser sentence.

The court found that while the applicant's admissions of guilt and his decision to undergo counselling may have warranted some mitigation, the seriousness of the offences, particularly the breach of trust and exploitation of the two young victims, justified the sentence imposed. The court considered the range of appropriate sentences for such offences to be between 18 months to three years imprisonment. The sentencing judge had exercised his discretion within this range and had appropriately taken into account the mitigating factors presented.

The Court of Appeal, in agreement with the District Court's sentencing decision, refused the application for leave to appeal against the sentence. The judges acknowledged that a lesser sentence might have been appropriate, but found that the sentence imposed was within the appropriate range and did not demonstrate any error or excessiveness. The court granted an extension of time for the application but ultimately denied the application for leave to appeal against sentence.

Orders