R v S - [2001] QCA 54

[2000] QCA 54

COURT OF APPEAL

McMURDO P
THOMAS JA
WILSON J

No 238 of 2000

THE QUEEN

S Applicant

BRISBANE

..DATE 21/02/2001

JUDGMENT

THE PRESIDENT: Justice Wilson will deliver her reasons first.

WILSON J: This is an application for leave to appeal against sentence. In September 2000 the applicant pleaded guilty to 22 counts of indecent treatment of a child under 16 years with circumstances of aggravation and one count of maintaining an unlawful sexual relationship with a child under 16 years with circumstances of aggravation.

Twenty-one of the counts of indecent treatment and the count of maintaining an unlawful sexual relationship related to his stepdaughter, KLS. The 22nd count of indecent treatment related to his natural daughter, BLS.

The conduct in relation to the stepdaughter occurred between 1990 and 1998 when she was aged between seven and 15 years. The conduct in relation to the natural daughter occurred in 1998 when she was aged 10 years.

The conduct in relation to the stepdaughter involved touching her breast area and genitals, having her rub his penis until he ejaculated and rubbing his penis on her back and buttocks to ejaculation. There was one incident of digital penetration of her vagina. There was one incident of taking an indecent picture of her which he later destroyed.

The conduct in relation to the natural daughter consisted of pulling her shirt over her head and touching her on the stomach, neck and chest.

On each count of indecent treatment, the sentencing Judge imposed two years' imprisonment and on the count of maintaining a sexual relationship with a child he imposed six years' imprisonment with a recommendation for parole after two years. The sentences were to be concurrent.

The stepdaughter made no complaint until her sister, the applicant's natural daughter, told her what the applicant had done to her. The stepdaughter told the pastor at their church what had happened. Then the applicant received counselling from the church and the conduct ceased.

Twelve months later he went to police and disclosed the offences to them. They had no prior knowledge of the offences. Subsequently, he pleaded guilty to an ex officio indictment.

The applicant was born on 17 February 1957. The conduct occurred when he was a mature man, apparently happily married to the victims' mother. In all there were seven children in the household, two of them born of the mother's former relationship and five born of the mother's relationship with the applicant. The fifth and sixth children were born after the conduct began and the seventh was born after it ceased.

The applicant has no other criminal record. He has a good work history and a creditable record of church and community involvement.

Counsel for the applicant submitted that the sentence was manifestly excessive, having regard to a number of factors:
first, the nature of the conduct, which he described as moderate, and second, that insufficient weight had been given to special mitigating circumstances. These included, in particular, that the…

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 [2000] QCA 54
Case: [2001] QCA 54
Decision Date: 21/02/2001

CaseChat Overview and Summary

In the case of R v S, the applicant sought leave to appeal against his sentence. The applicant had pleaded guilty to multiple counts of indecent treatment of a child under 16 years and maintaining an unlawful sexual relationship with a child under 16 years, all with aggravating circumstances. The offences involved the applicant's stepdaughter and natural daughter and occurred between 1990 and 1998. The court was required to determine whether the sentence of six years' imprisonment with a recommendation for parole after two years was appropriate, particularly considering the applicant's voluntary confession and remorse.

The court found that the sentencing judge had not adequately accounted for the applicant's voluntary confession and remorse, which are significant mitigating factors. The court acknowledged that the applicant had confessed to police, who had no prior knowledge of the offences, and that this confession demonstrated genuine remorse and contrition. The court also noted that the applicant had undergone counselling and arranged for counselling for the victims and other family members. The Court of Appeal concluded that the sentence imposed was manifestly excessive because it did not sufficiently account for these mitigating factors. The court decided to reduce the non-parole period to 18 months to better reflect the applicant's remorse and voluntary confession. The Court of Appeal granted leave to appeal and re-sentenced the applicant to four and a half years' imprisonment with a recommendation for parole after 18 months.

Orders