R v P - [2000] QCA 271

[2000] QCA 271

COURT OF APPEAL

de JERSEY CJ
DAVIES JA
WILLIAMS J

CA No 132 of 2000

THE QUEEN

P Applicant

BRISBANE

DATE 12/07/2000

JUDGMENT

THE CHIEF JUSTICE: At a time when he was 60 years old in April or May 1999 the applicant committed a number of offences on a 10-year-old boy. They were offences of sodomy, for which he was imprisoned for nine years and declared convicted of a serious violent offence with a reporting condition under section 19 of the Criminal Law Amendment Act 1945, and four counts of unlawful and indecent dealing with the same child aggravated because the child was under his care. It is enough to concentrate this morning on the penalty imposed for the sodomy. The applicant submits that it was manifestly excessive.

He was a long-standing trusted friend of the mother of the complainant. She regularly left her son in the applicant's care over the weekend. The boy called him "Uncle Ray". On the relevant occasion the applicant provided the boy with pornographic material, straddled the child, masturbated himself ejaculating into the child's mouth and instructing the child to swallow.

He lubricated the child's anus and his own penis with vaseline and sodomised the child including ejaculating. Whilst in the shower he had the child wash his, that is the applicant's penis, and digitally penetrated the child's anus and performed oral sex on the child.

When confronted by the police the applicant made admissions but they were in self-serving terms suggesting that the boy engaged in these acts of his own free will and in a sense instigated them, or some of them.

The applicant is of borderline intelligence. He received a disability pension. He had a most significant prior criminal history including convictions on two counts of sodomy of a boy under the age of 14 years committed in 1965 for which he was sentenced to six years imprisonment and sodomy committed again in 1977 for which he was sentenced to three years imprisonment.

The circumstances of those offences and the applicant's responses to the allegations which founded them were comparable with these. There was evidence before the learned sentencing Judge of continuing adverse emotional consequences to the complainant which is hardly surprising.
The essentials of the approach taken by the Judge emerged from these sentencing remarks:

"It seems to me, Mr P, that the overwhelming need in this case is to impose orders that will act to protect young children from further prohibitory offending by yourself in this way. I accept the submission of your counsel that your previous criminal history relates to offences committed many years ago.
Nevertheless you have demonstrated that notwithstanding significant terms of imprisonment being imposed upon you, you have not learnt from those sentences that the Courts and the community simply will not tolerate this sort of conduct.

It is a matter of concern that I have been asked to proceed in the absence of any psychiatric material. I take the view that…

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 [2000] QCA 271
Case: [2000] QCA 271
Decision Date: 12/07/2000

CaseChat Overview and Summary

In the Court of Appeal in Queensland, the case of R v P was heard by Jersey CJ, Davies JA, and Williams J. The applicant, P, had been convicted of multiple offences against a 10-year-old boy, including sodomy. P was sentenced to nine years imprisonment and declared to be a convicted person of a serious violent offence with a reporting condition under the Criminal Law Amendment Act 1945. P argued that the sentence was manifestly excessive, given his age, prior criminal history, and cooperation with the prosecution.

The court was required to determine whether the sentence was manifestly excessive. The primary consideration was the need to protect young children from further prohibited behaviour by P, given his history of similar offences against boys in positions of trust. The court also had to assess the significance of P's prior criminal history and his borderline intelligence in light of the current offence. The applicant argued that insufficient weight had been placed on his cooperation and pleas of guilty, while the Crown argued that the protection of society was paramount in this case.

The court found no fault with the reasoning of the trial judge. The need to protect children and deter the applicant was paramount, given his history of similar offences against boys in positions of trust. The court acknowledged that the sentence was substantial, but considered it justified in light of the repeat serious offending. The court found that the nine-year sentence coupled with the declaration was not manifestly excessive. The court also found that the declaration was warranted, and that the trial judge had not erred in imposing it.

The application was refused. The court upheld the sentence imposed by the trial judge, finding it to be justified in light of the need to protect young children and deter the applicant from further offending. The court also found that the declaration was warranted, and that the trial judge had not erred in imposing it. The applicant's appeal was therefore dismissed.

Orders