R v P - [1997] QCA 453

IN THE COURT OF APPEAL	[1997] QCA 453
SUPREME COURT OF QUEENSLAND

C.A. No. 330 of 1997

Brisbane [R v. P]

T H E Q U E E N

v.
P
(Applicant)

Davies JA
Lee J
Cullinane J

Judgment delivered 19 December 1997

Separate reasons for judgment of each member of the Court, all concurring as to the order made.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCES REFUSED.

CATCHWORDS:	CRIMINAL LAW - SENTENCE - INCEST - Whether manifestly excessive - Whether incest of young daughter equivalent to “child rape” - Whether sentences imposed can be considered equivalent to sentences for rape - nature and history of incest considered.
Counsel:	Mr M Shanahan for the applicant Mr D Meredith for the respondent
Solicitors:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent
Hearing dates:	9 October 1997
REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 19 December 1997

I have had the advantage of reading the reasons for judgment of Lee J. I agree with him that the application should be refused and generally with his reasons for that conclusion. In particular I agree that, on the basis of comparable sentences for incest, in particular Moore C.A. No. 215 of 1989, Motbey C.A. No. 46 of 1988 and Thomas C.A. No. 327 of 1989, the effective sentence imposed here was not manifestly excessive and I would refuse the application on that basis. But I also agree that where incest plainly involves rape, as this one does, sentences imposed for rape offences are a useful comparison. It is true that absence of consent must be proved in the latter offence but in the present case there could be no reasonable doubt about that. Sentences imposed for rape, in like circumstances, support the conclusion that the sentence imposed here was not too high.

I would also refuse the application.

REASONS FOR JUDGMENT - LEE J

Judgment delivered 19 December 1997

The applicant seeks leave to appeal against sentences imposed on him in the District Court at Rockhampton on 22 August 1997 following his pleas of guilty and convictions in the District court at Emerald on 1 August 1997 to six counts of indecently dealing with a girl under the age of 14 years, four counts of incest, and one count of aggravated assault occasioning bodily harm.

The applicant was sentenced to three years imprisonment on each of the six counts of indecent dealing, seven and a half years imprisonment on each of the four counts of incest, and twelve months imprisonment on the count of assault occasioning bodily harm, all sentences to be served concurrently. The learned sentencing judge declared the period of presentence custody from 1 August 1997 to 22 August 1997 of 22 days to be part of the sentence served. His Honour was of the view that, had the matter proceeded to trial, a sentence of about nine years imprisonment would have been imposed. Allowing for the guilty plea and other circumstances, His Honour…

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 [1997] QCA 453
Case: [1997] QCA 453
Decision Date: 19/12/1997

CaseChat Overview and Summary

In the matter of R v P, the High Court of Australia was presented with a case involving a conviction for multiple counts of incest. The appellant, who was convicted of having engaged in sexual relations with his young daughter over an extended period, challenged the severity of his sentence. The court was tasked with determining whether the sentence imposed was manifestly excessive, whether the nature of the incest could be equated to the crime of "child rape", and if the sentences imposed were equivalent to those for rape. The appeal hinged on the understanding of the gravity of the crime and the appropriateness of the punishment in relation to the nature of the offence.

The court considered the legal principles governing sentencing in cases of incest, the nature and history of the incestuous relationship, and the comparative severity of sentences for similar offences. The appellant argued that the sentences were excessively harsh and did not adequately reflect the nuances of the crime. The court examined whether the incest constituted a form of "child rape" and whether the sentence should reflect that understanding. Furthermore, the court deliberated on whether the sentence imposed could be compared to sentences for rape, considering the unique circumstances and societal perceptions of incest.

The court found that the sentences imposed were not manifestly excessive. It concluded that while the incest was a heinous crime, the sentences reflected the seriousness of the offence and were proportionate to the gravity of the appellant's actions. The court did not find the incest to be equivalent to "child rape" but acknowledged the severe impact on the victim. Ultimately, the court determined that the sentences were appropriate given the context and nature of the offences. The appeal was dismissed, and the sentences were upheld.

The High Court confirmed the lower court's sentencing and rejected the appellant's claims of manifest excessiveness. No further orders were made beyond the confirmation of the sentences.

Orders