R v R - [1998] QCA 268

[1998] QCA 268

COURT OF APPEAL
de JERSEY CJ
PINCUS JA

DERRINGTON J

CA No 152 of 1998
THE QUEEN
v.

R	Appellant
BRISBANE ..DATE 24/07/98
JUDGMENT
240798 T5-6/SJ3 M/T COA168/98

THE CHIEF JUSTICE: The appellant appeals against his conviction on a charge of maintaining an unlawful sexual relationship with a child with a circumstance of aggravation.

He was also convicted on other counts in relation to the same child, offences of unlawful carnal knowledge and indecent dealing.

The circumstance of aggravation on the maintaining charge, which was count 12, was his having had unlawful carnal knowledge of the child. That particular instance of unlawful carnal knowledge was also the subject of a separate count, count 5, but on that count the appellant was acquitted. The Crown had formally particularised that instance of unlawful carnal knowledge, count 5, as being the circumstance of aggravation attending the maintaining charge in count 12.

The Crown concedes that the conviction on the count of maintaining so far as it extends to the circumstance of aggravation therefore cannot stand. I would allow the appeal against conviction, quash the conviction in respect of count 12 for maintaining an unlawful sexual relationship with a circumstance of aggravation and enter a conviction on that count of maintaining an unlawful sexual relationship simpliciter.

The appellant applies for leave to appeal against the sentence of six and a half years imposed in respect of count 12. To my mind, the learned sentencing Judge apparently sought to indicate that he was sentencing in respect of count 12 on the only truly applicable basis - that is, in light of the

2 JUDGMENT

240798 T5-6/SJ3 M/T COA168/98

acquittal on count 5 - as a conviction for maintaining an unlawful sexual relationship without the alleged circumstance of aggravation.

I say "sought to indicate" because he has not done so with perfect clarity. He said, prior to commencing his sentencing remarks:

"He has been acquitted of count 5 but really I will indicate in my reasons that is how I will approach it. It may assist the Court of Appeal."

And then, when sentencing, said:
"I intend to proceed on the basis you have been convicted of

the alternative in count 11. I have to take into account you were acquitted of count 5 of unlawful carnal knowledge."

It is a pity the learned Judge did not say that he was sentencing as if there had been a conviction for maintaining simpliciter. Mr Farr, who appeared today for the appellant and applicant, very properly informs us that it was his clear impression that the learned Judge was sentencing for maintaining simpliciter. That is the position also taken before us for the Crown and I am prepared to proceed on that basis. Counsel for the applicant submits that five and a half years would have been an appropriate sentence for maintaining simpliciter.

The applicant was a 53 year old man with no previous convictions. He systematically corrupted a girl over a period covered by…

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 R

Details

AGLC: R v R [1998] QCA 268
Case: [1998] QCA 268
Decision Date: 24/07/1998

CaseChat Overview and Summary

The Court of Appeal of Queensland heard an appeal by R against his conviction and sentence on charges related to an unlawful sexual relationship with a child. R was convicted of maintaining an unlawful sexual relationship with a circumstance of aggravation, unlawful carnal knowledge, and indecent dealing. The appeal focused on the conviction for maintaining an unlawful sexual relationship with a circumstance of aggravation, which was based on an instance of unlawful carnal knowledge that was separately charged and resulted in an acquittal. The Crown conceded that the conviction for maintaining, insofar as it extended to the circumstance of aggravation, could not stand.

The court was required to decide whether the conviction for maintaining an unlawful sexual relationship with a circumstance of aggravation was valid, and if not, what the appropriate conviction should be. Additionally, the court considered whether the sentence imposed for the maintaining charge was appropriate. The court concluded that the conviction for maintaining with a circumstance of aggravation was invalid due to the acquittal on the specific instance of unlawful carnal knowledge that served as the basis for the circumstance. The court then proceeded to re-evaluate the sentence imposed, considering the gravity of the conduct, the impact on the complainant, and the absence of remorse shown by R.

The court found that the original sentence of six and a half years was too high, given the correct maximum penalty for maintaining an unlawful sexual relationship without the circumstance of aggravation was seven years. After re-evaluating the appropriate sentence, the court determined that five and a half years was an appropriate sentence for maintaining simpliciter. The court also noted that the original sentencing judge had misapprehended the applicable maximum penalty, leading to an error in the sentencing process. Consequently, the court quashed the original conviction and sentence and imposed a new sentence of five and a half years.

The final orders of the court were to extend the time for making an application for leave to appeal against the new sentence, to allow the appeal against the conviction for maintaining with a circumstance of aggravation, to quash that conviction, to enter a conviction for maintaining simpliciter, to set aside the original sentence of six and a half years, and to order a new sentence of five and a half years for maintaining simpliciter.

Orders