R v Regan - [1997] QCA 477

[1997] QCA 477

COURT OF APPEAL
McPHERSON JA
THOMAS J

DOWSETT J

CA No 381 of 1997
THE QUEEN
v.

RICKY JOHN REGAN

BRISBANE

.	.DATE 21/11/97

211197 T9/JAP/20 M/T COA 268/97

THOMAS J: The applicant was convicted of two counts of unlawful carnal knowledge of a girl under the age of 16. On each count he was sentenced to six months' imprisonment.

At the time of the offences in 1995 the complainant was 14 and the applicant 21 years old. The applicant was a friend of the complainant's older brother and had known her for most of her life. There was no romantic attachment between them.

On the day in question, after leaving school on a Friday afternoon the complainant went to a party at a friend's house. She consumed alcohol and at about 11.30 p.m. formed the intention of going to her brother's house. However, on the way, in the company of others, including the applicant, she continued to drink at other locations, including the beach, at a hotel and went to two houses consecutively in Cleveland.

The record reveals a rather tawdry exploitation of a girl affected by liquor. The learned sentencing Judge described the circumstances in this way:

"The complainant went into a room and laid down on a mattress. Whilst on the mattress you removed the complainant's pants and your clothing and had intercourse with her. The complainant, at that time, said she did not want to. Later, you left that residence and went to another house. At that time, you kept asking the complainant to go upstairs but she declined. Later, whilst the complainant was having a shower you got into the shower with her and, again, had intercourse with her. Whilst it is not alleged that either act of intercourse was without the complainant's consent it is a case where the complainant had, at least, expressed some reluctance to have intercourse."

The complainant was, before the first of these events, a virgin. Plainly, she was exploited. The applicant pleaded guilty on 211197 T9/JAP/20 M/T COA 268/97

the morning of the trial which had been scheduled. The learned sentencing Judge observed that the community had not been saved any money, or resources, as the trial had been ready to proceed and that no remorse had been shown on the applicant's part. The complainant had continued to believe that she was required to give evidence at the trial. Accordingly, His Honour considered that the applicant was deserving of little, if any, credit in relation to his

pre-sentencing conduct.

The circumstances urged in mitigation are that there was no great disparity in the ages of the applicant and the complainant, although a matter of degree must attend that submission. Further, he was not in a position of trust. No force was used to commit the offences. It was also mentioned that the applicant had a reasonable work record in recent years and that he had family support.

It was mentioned before us that he had obtained…

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 Regan

Details

AGLC: R v Regan [1997] QCA 477
Case: [1997] QCA 477
Decision Date: 21/11/1997

CaseChat Overview and Summary

The Court of Appeal in this case heard an appeal against sentence brought by the applicant, Ricky John Regan, who had been convicted of two counts of unlawful carnal knowledge of a girl under the age of 16. Regan was sentenced to six months imprisonment for each count. The offences occurred in 1995 when the complainant was 14 years old, and Regan was 21 years old. The complainant had been drinking alcohol and was accompanied by Regan and others, including the complainant's older brother, who was a friend of Regan. There was no romantic relationship between Regan and the complainant. The events were characterised by the sentencing judge as an exploitation of the complainant who had expressed some reluctance to engage in sexual activity.

The appeal against sentence raised the question of whether the sentence imposed was manifestly excessive or whether the sentencing judge had erred in the exercise of his discretion. The Court considered the circumstances of the offences and the applicant's criminal history in reaching its decision. The Court found that the sentence was within the available range and that there was no error in the exercise of the sentencing judge's discretion. The appeal against sentence was dismissed.

In summary, the Court of Appeal found that the sentence imposed on Regan for his convictions of unlawful carnal knowledge of a minor was not manifestly excessive, and that the sentencing judge had not erred in his exercise of discretion. The appeal against sentence was dismissed, and Regan's sentence of six months imprisonment for each count was upheld.

Orders