R v S - [2002] QCA 300

[2002] QCA 300

COURT OF APPEAL

WILLIAMS JA
MACKENZIE J
HOLMES J

CA No 69 of 2002

THE QUEEN

S Appellant

BRISBANE

..DATE 15/08/2002

JUDGMENT

WILLIAMS JA: I will ask Justice Holmes to deliver her reasons first.

HOLMES J: The applicant seeks leave to appeal against a sentence of four years' imprisonment imposed on him in respect of two counts of indecent dealing with a child under the age of 14 years. He was convicted after a trial of those counts but the jury was unable to agree on a further count of rape of the same complainant. The complainant was the younger sister of his girlfriend, later his wife.

The offence the subject of the first count was alleged to have occurred between the 3rd of May 1978 and the 5th of May 1979 when the complainant was 10 years old, and that the subject of the second count between the 7th of June 1980 and the 12th of April 1981 when the complainant was 12.

As to the first occasion, the complainant gave an account of being asleep in a bunk bed with her younger brother who was about six and being woken by the applicant. He lifted her nightgown and rubbed her chest and her vaginal area under her underpants. When she began to cry he put his hand over her mouth. He then took her hand and that of her younger brother, who by then had woken, and tried to make each touch the other's genitals. They resisted. Then the applicant moved the complainant's hand up and down his erect penis. Before leaving the room he told the children were not to tell anyone, particularly their sister, and that no-one would believe them if they did.
The applicant was at that time the boyfriend of the complainant's sister. In 1980 he married the complainant's sister. The complainant often spent weekends with the couple at their house. Her evidence was that over the period of his relationship with her sister the respondent had continued to touch her breasts and vaginal area on what was roughly a weekly basis and would also come in while the complainant was bathing and, under the pretext of helping her, touch her vaginal area.

The particular incident which was the subject of the second count occurred when the complainant was taking a bath with her younger brother and involved what she described as fingering which, it is fairly clear from other references, meant digital penetration of her vagina.

The applicant was born on the 2nd of March 1959 so that he was between 19 and 20 when the first offence was committed and between 21 and 22 at the time of the second. He had a single previous conviction for the offence of wilful exposure committed in 1987. There had of course been a very considerable delay in the making of the complaints which led to the convictions in respect of which he was sentenced. He was not charged until January…

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 S

Details

AGLC: R v S [2002] QCA 300
Case: [2002] QCA 300
Decision Date: 15/08/2002

CaseChat Overview and Summary

The applicant in this case, S, was convicted by a jury of two counts of indecent dealing with a child under the age of 14 years, involving the complainant, who was the younger sister of the applicant’s girlfriend, later wife. The jury was unable to agree on a further count of rape of the same complainant. The applicant sought leave to appeal against a sentence of four years' imprisonment imposed on him. The Court of Appeal was required to determine whether the sentence was manifestly excessive and if leave to appeal should be granted.

The Court of Appeal found that the sentence imposed was manifestly excessive, considering the absence of a genuinely comparable set of circumstances in the case of Betteridge, which the Crown had relied on to justify the sentence of four years. The Court noted that the case of Betteridge involved three complainants aged seven and eight and four offences, with elements of physical force and aggressive bullying behaviour which were absent in this case. The Court also considered other comparable cases and found that the sentence imposed was excessive given the applicant’s relative youth at the time of the offences, the absence of physical force, the applicant’s single minor conviction, and his good work history over the 20 years since the offences.

The Court of Appeal allowed the appeal, setting aside the sentence and substituting in lieu on both counts a sentence of two years' imprisonment. The order of the Court was as indicated by Justice Holmes.

Orders