R v R - [2000] QCA 279

[2000] QCA 279
COURT OF APPEAL

DAVIES JA
McPHERSON JA
MULLINS J

[R v R]

CA No 126 of 2000

THE QUEEN

R Applicant

BRISBANE

..DATE 14/07/2000

JUDGMENT

McPHERSON JA: This is an application for leave to appeal against sentences imposed on the applicant in the District Court in Brisbane following his pleas of guilty entered on an indictment charging him with a number of sexual offences committed against a young girl.

The applicant was sentenced to a term effectively of imprisonment for 11 years for maintaining a sexual relationship with a child under 12, with the circumstance of aggravation that she was in his care; to imprisonment for four years for three counts of indecent treatment of the same child, again when she was in his care; to nine years for two counts of raping that child; to eight years for three counts of carnal knowledge of a girl under 12, again when she was in his care; and to four years for two counts of indecently treating a child under the age of 12 years.
As I said, the sentence was effectively one of 11 years' imprisonment because those sentences were directed to be served concurrently.

At the time of the offence or offences for which he was sentenced on this occasion, the applicant was under a suspended sentence imposed in 1986, so that his conviction on this occasion reactivated that sentence and he became liable to serve the balance of his suspended period of sentence of 12 months. In addition, a period of 325 days of pre-sentence custody was taken into account by an appropriate declaration made by his Honour.

The offences were committed during a two and half year period between 1 January 1997 and 21 April 1999. During that period the applicant maintained a sexual relationship with the young complainant who was then aged between nine and 11 years, and was the daughter of a friend of the applicant whom he knew through his own sister.

The offences are of a revolting nature and it is not necessary I think to revisit them in more detail at present than to say that they involved touching the complainant on her breasts and vagina, masturbating in front of her to ejaculation, rape on separate occasions, oral sex, and inserting a vibrator into the complainant's vagina, as well as having her masturbate or touch him on the penis. On some occasions when she resisted his attentions and attempts to make her do these acts, he bribed her by promising to reward her in various ways thereby, in effect, in my opinion, submitting her to a form of prostitution at an early age.

Needless to say, the experience has had a markedly adverse effect on the complainant, on her schooling, and on her family as a whole. The child was, as I have mentioned, the daughter of a friend of his sister and the friend used to leave her children temporarily with the applicant when she was going…

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 [2000] QCA 279
Case: [2000] QCA 279
Decision Date: 14/07/2000

CaseChat Overview and Summary

The case of R v R involved an application for leave to appeal against sentences imposed on the applicant in the District Court in Brisbane. The applicant, who was under a suspended sentence imposed in 1986, was found guilty of various sexual offences committed against a young girl. The offences included maintaining a sexual relationship with a child under 12, indecent treatment of the same child, and rape. The applicant was sentenced to a term effectively of imprisonment for 11 years, to be served concurrently with other sentences. The applicant argued that the sentencing judge failed to take sufficient account of mitigating factors, such as his remorse, family background, and participation in psychiatric treatment. The court examined whether the sentence was outside the appropriate range for the offences and whether the judge had considered the mitigating factors adequately.
The court found that the sentence was within the appropriate range of 10 to 12 years and that the sentencing judge had considered the mitigating factors, including the applicant's pleas of guilty and remorse. The court held that there was no basis for disturbing the sentence on appeal, as it was consistent with the principles governing such applications. The court refused the application for leave to appeal against the sentence. The case underscores the importance of considering both aggravating and mitigating factors in sentencing, as well as the need for sentences to be within the appropriate range for the severity of the offences committed.

Orders