R v S

[1996] QCA 391

[1996] QCA 391

COURT OF APPEAL

MOYNIHAN J
MACKENZIE J
CULLINANE J

Appeal No 328 of 1996

THE QUEEN

v.

S  Applicant

BRISBANE

DATE 02/10/96

JUDGMENT

MACKENZIE J:  The applicant was convicted of two counts of incest.  The girl was 14 and 15 at the time of the respective offences.  He had also been charged with, but acquitted of, counts of rape and administering stupefying drugs with intent to facilitate rape or incest relating to the same occasions.  He was also acquitted of three counts of rape relating to other occasions of which the complainant gave evidence.

The record indicates that no alternative charges were left to the jury on the charges of rape and from a remark made by the sentencing Judge it appears that that was done through inadvertence.

By way of background to the matter the complainant had lost contact with the applicant from the time when she was about three until she met him when she was 14 and shortly afterwards went to live in his household with his current wife and family near Ipswich.  She, that is to say the complainant, was in conflict with her mother at the time.

The first conviction relates to an occasion when the applicant interrupted the complainant when she was doing her homework; he drove her to an oval near a soccer field and there he gave her four West Coast Coolers and a marijuana cigarette.  She consumed the West Coast Cooler and smoked the cigarettes.  It may be that the jury thought that there was no element of coercion in respect of those.

Following the consumption of the alcohol and marijuana she said she felt weird and strange and although her memory was somewhat patchy she recalled him having intercourse with her on a sleeping bag beneath a building at the oval.

The next conviction relates to an incident when the applicant was living at the Sunshine Coast and the complainant was 15.  One afternoon he took the complainant and his two sons who were then five and three fishing.  He supplied the complainant with beer and marijuana which she, again, voluntarily consumed.  That night he called her over to some trees where he was and there had sexual intercourse with her.

She gave evidence to the effect that she was resigned to what was going to happen although she was crying and screaming during the course of the act.  The complaints were not made until mid 1994.  There was evidence that the applicant had made threats to her involving various things; the display of a weapon and of physical harm if she revealed the offences.

The matter went to trial; the defence did not give evidence, but the complainant was cross-examined on the basis that the offences did not happen and that her evidence was false.  The trial Judge took into account the ordeal of giving evidence especially in the light of the victim impact statement which showed that the complainant had suffered great emotional damage, as far as she was concerned, as a result of the treatment by the applicant.  It is not a case where any remorse is evident.

The trial Judge formed the view that eight years imprisonment was appropriate, but because the applicant had served 325 days for one of the counts of administering a stupefying drug upon which he was initially convicted, given a re-trial and then acquitted on the present trial, reduced the sentence to seven years.

The applicant was 42 years of age.  He has a lengthy criminal history for offences of dishonesty.  He has no previous offences of a sexual nature.  The record indicates clearly enough that the applicant took advantage of his position and committed the offences for which he was convicted.

The sentences which have been presented to us as comparatives really in many respects stand on their own facts and one has to form a conclusion as to what was an appropriate sentence in this particular case.

As I have attempted to indicate there were a number of circumstances which I think aggravated the particular offences on this occasion and while it may be said that the sentence is heavy I am not persuaded that it is manifestly excessive given the particular circumstances of the case.

I would refuse the application for leave to appeal.

MOYNIHAN J:  I agree.

CULLINANE J:  I agree.

MOYNIHAN J:  The order is that the application for leave to appeal is refused.