R v S - [2002] QCA 106

[2002] QCA 106

COURT OF APPEAL

McPHERSON JA
WHITE J
HOLMES J

CA No 8 of 2002

THE QUEEN

S Appellant

BRISBANE

..DATE 20/03/2002

JUDGMENT

HOLMES J: The appellant was arraigned on 26 March 2001 and pleaded guilty to one count of indecent dealing with an intellectually impaired person under care and one count of carnal knowledge of an intellectually impaired person under care.

His appeal against conviction was not lodged until 21 December 2001. Consequently, he requires an extension of time before that appeal can proceed.

The allegation in respect of the indecent dealing count was that the appellant procured the complainant, an intellectually impaired young woman, to perform fellatio on him. Alleged sexual intercourse following that event is the basis of the carnal knowledge count.

The Crown case was set out in a precis tendered on the appellant's sentence. The complainant was a 21 year old woman suffering from what was described as a moderate degree of intellectual impairment. She resided at a residential care service and required 24 hour care but was able to undertake weekend visits to her mother, the de facto wife of the appellant.

Initially the complainant told a support worker that the appellant had had sex with her. She was interviewed by police and confirmed the incidents, the subject of the two counts I have outlined.
She said that the appellant had told her not to reveal that he had sex with her; if she did she would not be allowed to visit her mother.

Sheets from the appellant's bed were found to contain DNA from the complainant likely to be from vaginal or oral mucous. The appellant was interviewed by police. His account, according to the precise, was that he had woken to find the complainant jumping up and down in his erect penis. He conceded that he had ejaculated inside her vagina.

As I have said, the appellant pleaded guilty to these two counts. That plea having been offered, the Crown entered a nolle prosequi in respect of the third count of carnal knowledge. However, for various reasons the sentence of the appellant was adjourned.

He subsequently made application to the Court to vacate his pleas of guilty. In essence, his grounds for that application were that he had pleaded guilty because he had been advised that he would get a lighter sentence by doing so and that the time he would spend in actual custody would be only 12 months. He was anxious, he said, to ensure that it was no longer, so that he would be able to care for his partner who suffered from cerebral bleeding and for a disabled uncle for whom he had responsibility.

In one of his affidavits filed on the application to vacate the pleas of guilty, he said he believed himself to be entering the guilty pleas on the basis identified in his interview, that is that he had woken to find the complainant bouncing up and down on him.

However, under…

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 106
Case: [2002] QCA 106
Decision Date: 20/03/2002

CaseChat Overview and Summary

In the case of R v S, the appellant was found guilty of indecent dealing with and carnal knowledge of an intellectually impaired person under his care. The appellant appealed against his conviction and sought leave to appeal against his sentence. The appeal against conviction was not lodged until 21 December 2001, requiring an extension of time before it could proceed. The appellant argued that he had pleaded guilty due to a misunderstanding of the potential sentence and had sought to withdraw his pleas. However, the court found that the appellant had received accurate advice from his legal representatives and understood the nature of the allegations against him. The court concluded that the guilty pleas were the result of a free choice by the appellant who understood the charges to which he was pleading guilty.

The legal issues the court had to decide were whether the appellant's guilty pleas were the result of a free choice and whether the sentence imposed was appropriate. The court found that the appellant had made a free choice in entering his guilty pleas and had received accurate advice from his legal representatives. The court also found that the sentence imposed was an appropriate exercise of the trial judge's discretion, taking into account the mitigating factors of the pleas of guilty, the appellant's ill health, and his otherwise good character.

The court granted an extension of time for the appeal against conviction but dismissed the appeal. The court also granted leave to appeal against the sentence but dismissed that appeal as well. The orders were as stated by Holmes J. McPherson JA and White J both agreed with the decision.

Orders