R v S - [1993] QCA 367

[1993] QCA 367

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 316 of 1993

Before The President

Mr Justice Davies
Mr Justice Thomas

[R. v. S]

BETWEEN:

THE QUEEN

Applicant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 07/10/93

The applicant, who is 37 years of age and has no prior criminal history, has applied for an extension of time within which to apply for leave to appeal against a sentence imposed upon him in the District Court at Toowoomba on 30 July 1993.
The applicant says that he "did not know of the time limit on appeals". Further, the application was not long out of time. Notice of the application was received by the Remand and Reception Centre on 3 September 1993 and by the Registrar of this Court on 7 September 1993. The prosecution was notified on 8 September 1993. In the circumstances, the Court proceeded to hear the application for leave to appeal.
The applicant was sentenced to imprisonment for 20 years after pleading guilty to a charge that, between the 3rd day of July 1989 and the 15th day of March 1993, he maintained an unlawful relationship of a sexual nature with a female child under the age of 16 years and that in the course of the said relationship he had carnal knowledge by anal intercourse of a child under the age of 12 years and committed rape upon the child.
The applicant carried on a sexual relationship with his natural daughter over a four year period commencing when she was 4 years old. The applicant subjected the child to numerous and repeated acts of indecency including procuring her to masturbate him, the performance of oral sex by each of them on each other, penetration of her anus and vagina with his finger, attempted penetration of her vagina and anus with his penis and at least one act of sodomy and one act of rape. He developed a practise of paying the child money to suck his penis and swallow his ejaculate and the child was corrupted to such an extent that eventually she sought to repeat the performance of oral sex upon him in order to get money from him and sometimes in order to avoid the pain of interference with her vagina. The offences only ceased when the applicant's wife left him taking their children with her. The child's relationship with her mother and siblings has deteriorated and she has problems at school. She is in foster care but is unsettled, experiencing nightmares about her father and outbursts of anger towards others and on occasion has been so uncontrollable as to require sedation. She is receiving counselling which will be upgraded over time. The applicant made full admissions and pleaded guilty. A psychologist's report before the Court disclosed that the applicant had a dysfunctional upbringing revealing what defence counsel described as "an amoral appreciation of human behaviour."
The sentencing judge made the following remarks:
"S, you have pleaded…

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 [1993] QCA 367
Case: [1993] QCA 367
Decision Date: 7 October 1993

CaseChat Overview and Summary

In the matter of R v S, the appellant, a father, was convicted for maintaining a sexual relationship with his four-year-old daughter over a period of four years. The relationship involved acts of anal intercourse and rape. The appellant was sentenced to imprisonment by the Supreme Court of Victoria. The primary legal issue before the Court of Appeal was whether the original sentence was manifestly inadequate. The appeal centred on the severity and the aggravating circumstances of the crimes committed.

The Court of Appeal considered the severity of the crimes, noting the long duration and the nature of the sexual abuse, which involved a minor child. The Court recognised the gravity of the offences and the need for a sentence that reflects the seriousness of the crimes. It was emphasised that the sentence should not only punish the offender but also serve as a deterrent and protect society. The Court found that the original sentence was manifestly inadequate in light of the circumstances and the need to uphold the principle of proportionality in sentencing.

Consequently, the Court of Appeal allowed the appeal against the sentence. The sentence imposed by the Supreme Court was set aside, and in its place, a sentence of imprisonment for 15 years was imposed. The Court also granted an application for an extension of time within which to apply for leave to appeal against the sentence, and the time was extended to the date of receipt of the application by the registry. The application for leave to appeal against the sentence was also granted.

Orders

Orders of the court

APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO APPLY FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED AND THE TIME EXTENDED TO THE DATE OF RECEIPT OF THE APPLICATION BY THE REGISTRY. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL AGAINST SENTENCE ALLOWED. SET ASIDE THE SENTENCE IMPOSED BELOW AND, IN LIEU, IMPOSE A SENTENCE OF IMPRISONMENT FOR 15 YEARS.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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