R v S - [2002] QCA 65

[2002] QCA 65

COURT OF APPEAL

McMURDO P
WILLIAMS JA
PHILIPPIDES J

CA No 327 of 2001

THE QUEEN

S Applicant

BRISBANE

..DATE 08/03/2002

JUDGMENT

THE PRESIDENT: The applicant who represents himself today was convicted in the Townsville District Court of one offence of rape. He was sentenced to two and a half years imprisonment with a recommendation for parole after two months.

He claims the sentence was manifestly excessive. He emphasises that he finds prison life stressful and he is on medication for his nerves. He also emphasises his age at 66 years and his prior lack of criminal history and asks us to consider making an earlier recommendation for parole.

The complainant, a 13 year old boy, and his father knew the applicant who lived nearby. The complainant occasionally did odd jobs for the applicant. On the 30th of March 2001 he went to the applicant's unit in a retirement village. The boy was sitting in a chair when the applicant lifted him out of the chair by the arms and despite the boy's protests carried him into the bedroom, threw him on the bed, locked the front door and closed the bedroom door.

He said, "No one will know, it won't hurt." He removed the complainant's and his own pants and smeared cooking oil, or margarine, which was in a container beside the bed, on his penis and the complainant's penis. The applicant had an erection and forced the complainant to suck his penis holding his head with his hand. He then sucked the complainant's penis.

The complainant unsuccessfully attempted to push the applicant away. While sucking the complainant's penis the applicant attempted to digitally penetrate the complainant's anus, however, the complainant pushed the applicant's hand away.

The applicant bit the complainant on the penis causing considerable pain. The applicant stood up, masturbated and ejaculated on the leg of the complainant, saying, "You'd better not ring the police." The complainant dressed himself and road off on his bike, but before reaching home dialled 000 and made a complaint.

These facts were not contested at sentence.

Police attended the complainant's residence late - later that day and took possession of a number of items. The applicant denied any impropriety and declined to be interviewed.

The applicant's conduct now comes within the extended definition of rape, which relevantly includes penetrating the mouth of the complainant with the offender's penis.

Before 27 October 2000 such conduct constituted the offence of indecent dealing, punishable by up to 10 years imprisonment, or indecent assault with a circumstance of aggravation punishable by up to 14 years imprisonment. The offence charged here is now punishable by life imprisonment.

The applicant pleaded guilty on an ex officio indictment. He was 66 years old at sentence. He had a good work history, including five years service with the Australian Army, of which 11 months was spent in Vietnam on active service. He has no prior criminal convictions. As a result of this offence he was…

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 65
Case: [2002] QCA 65
Decision Date: 08/03/2002

CaseChat Overview and Summary

The applicant, S, has appealed against his conviction for rape and the sentence imposed by the Townsville District Court. S was found guilty of raping a 13-year-old boy and was sentenced to two and a half years imprisonment with a recommendation for parole after two months. S argues that the sentence was excessively harsh and requests an earlier recommendation for parole due to his age, lack of prior criminal history, and the stress he experiences in prison.

The legal issues in this appeal revolve around the severity of the sentence imposed for the offence of rape and whether it was manifestly excessive. The Court was required to consider the nature and circumstances of the offence, the applicant's lack of remorse, and the impact on the victim. The Court also needed to assess whether the sentence was within the appropriate range for this type of offence.

The Court found that the sentence was not manifestly excessive, considering the serious aspects of the offence, including the use of force and the significant impact on the victim. The Court acknowledged the mitigating factors, such as the applicant's early plea of guilty and his prior good work record, but ultimately determined that the sentence was within the appropriate range. The Court also noted that the applicant had shown no remorse for his actions. Therefore, the Court refused the application for leave to appeal against the sentence.

The final orders of the Court were that the application for leave to appeal against the sentence was refused.

Orders