R v. S - [1998] QCA 318

[1998] QCA 318

COURT OF APPEAL

McPHERSON JA
AMBROSE J
BYRNE J

CA No 234 of 1998

THE QUEEN

S Applicant

BRISBANE

DATE 27/08/98

JUDGMENT

McPHERSON JA: The applicant seeks leave to appeal against sentences imposed on him on 2 June 1998 in the District Court at Beenleigh. There were two indictments.

He was charged on the first indictment and pleaded guilty to one count of maintaining a sexual relationship with his step-daughter K, accompanied by a circumstance of aggravation; three counts of indecent assault with circumstances of aggravation; one count of indecent treatment of a child under 16 years with circumstances of aggravation; one of wilfully exposing a child under 16 to an indecent act while she was in his care; one count of attempted rape and one of attempted indecent assault.

Under the second indictment, which involved his natural daughter J, he was charged with another count of indecent assault with circumstances of aggravation and a further count of indecent treatment of a child under 16 years with circumstances of aggravation.

K was some 12 or 13 years old at the time of the first offence in the first indictment. J was 11 years old or thereabouts. The applicant pleaded guilty to these charges, but did so only after the trial commenced. He was sentenced on the first indictment to seven years imprisonment for the offence of maintaining a sexual relationship with circumstances of aggravation, and three years for the remaining counts on that indictment, all sentences to be served concurrently.

On the second indictment, he was sentenced to 18 months imprisonment for the two offences there, and that term of imprisonment was ordered to be served cumulatively upon the sentences imposed in respect of the first indictment. Effectively, therefore, he was sentenced to a cumulative term of eight and a half years imprisonment of which seven years was attributable to the first indictment.

The offences charged on the first indictment occurred between 1 September 1995 and 1 August 1997. With respect to that complainant, who is his step-daughter, the applicant engaged in activities such as putting his finger into her vagina, licking her breasts, exposing himself to her, forcing her to masturbate him and attempting to kiss her. As a result of some of these actions on his part she suffered vaginal pain for some days after some of the incidents.

The charge of attempted rape occurred during one day of the school holidays. The complainant was lying on her bed when the applicant came into her room, put his hand over her mouth and his finger in her vagina. As she struggled, he tried unsuccessful to put his penis in her vagina. He was naked and lying on top of her. She struggled and he eventually desisted after she punched him in the head.

The offence of wilfully exposing a child under 16 to an indecent act while in his care occurred when he performed oral sex on another person in the presence, and in…

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 [1998] QCA 318
Case: [1998] QCA 318
Decision Date: 27 August 1998

CaseChat Overview and Summary

In the case of The Queen v. S, the applicant sought leave to appeal against sentences imposed on him in the District Court at Beenleigh. The applicant was found guilty of multiple sexual offences against his step-daughter and natural daughter. These offences included maintaining a sexual relationship, indecent assault, indecent treatment of a child, wilful exposure to an indecent act, attempted rape, and attempted indecent assault. The applicant pleaded guilty after the jury had been empanelled, following concerns about his mental condition and ability to understand the proceedings. The applicant had a history of alcohol abuse, cirrhosis of the liver, and limited intellectual ability. He also had previous convictions for various offences, including sexual offences against children.

The legal issues before the court were whether the sentences imposed by the District Court were manifestly excessive and whether the sentences adequately recognised the applicant's plea of guilty and his co-operation. The applicant argued that the sentence of eight and a half years with no recommendation for parole was excessive, while the respondent argued that the sentences were appropriate given the applicant's criminal history and the nature of his offences. The court had to balance the severity of the crimes, the applicant's prior convictions, and the mitigating factor of his late plea of guilty.

The court held that the sentences were not manifestly excessive and appropriately reflected the gravity of the offences committed. The court noted that the applicant had previously been convicted for a similar offence and served a sentence without any apparent deterrent effect. The attempted rape charge and the involvement of two victims, one of whom was a young child, further weighed against the applicant. Although the plea of guilty was a mitigating factor, the court found that the sentences were justified, considering the nature of the crimes and the applicant's criminal history. The court decided that the effective sentence of eight and a half years was a proper recognition of the applicant's plea of guilty, despite being initially concerned about the length of the sentence.

The court ultimately refused the applicant's application for leave to appeal, confirming the original sentences imposed by the District Court. The judges agreed that the sentences were appropriate in light of the circumstances and the mitigating factors considered.

Orders