R v S; ex parte - [2002] QCA 141

[2002] QCA 141

COURT OF APPEAL

DAVIES JA
WILLIAMS JA
HELMAN J

CA No 352 of 2001

THE QUEEN

S Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

..DATE 16/04/2002

JUDGMENT

DAVIES JA: This is an appeal by the Attorney-General against an effective sentence of five years imprisonment with a recommendation for release on parole after serving two years imposed on the respondent in the District Court on 13 November 2001 for 32 offences of a sexual nature against young children. That sentence was imposed for 24 offences of indecent treatment of a child under 16 with circumstances of aggravation. Those circumstances were in each case that the child was under 12 and that he or she was under the respondent's care. There were three children, as I have indicated, who were the victims of those offences. The respondent was also sentenced to four years imprisonment for four offences of indecent dealing with an intellectually impaired person then under his care. He was sentenced to three years imprisonment for attempting to sodomize the same person who was then under 18 years of age. He was also sentenced to two years imprisonment for indecently dealing with the same person who was then aged between 15 and 16. They comprised the total of the 32 offences to which I have referred.

The offences for which he was sentenced to two years imprisonment, three years imprisonment and four years imprisonment were committed when the respondent was aged between 41 and 44 years of age and the offences for which he was sentenced to five years imprisonment were committed some years later when he was 53. He was 54 at the time of sentence. He has no prior criminal history.

There is little point in setting out in detail the circumstances of these offences. The respondent was a foster parent of each of the victims. Their vulnerability and his duty were both high. Consequently, the seriousness of these offences cannot be doubted. Moreover, whilst there were undoubtedly some commendable aspects of the respondent's conduct once it was exposed, it came to light only when he was confronted by his wife who suspected there had been some misbehaviour involving at least one of the two girls aged seven and four, the subject of most of the offences for which he was sentenced to five years imprisonment. Nevertheless, there were substantial mitigating factors in this case.

The first of these was that, although the offences involving the girls came to light only because of the respondent's wife's suspicions, once she had confronted him he made a complete confession to the police about these and other offences about which, had he not confessed, there may never have been any evidence to convict him. His committal then proceeded as a full hand up committal and he pleaded guilty at the first opportunity.

The second substantial mitigating factor in the present case is that, according to the report of Dr Curtis, a psychiatrist, which the learned sentencing judge plainly…

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; ex parte

Details

AGLC: R v S; ex parte [2002] QCA 141
Case: [2002] QCA 141
Decision Date: 16/04/2002

CaseChat Overview and Summary

This case involved an appeal by the Attorney-General against the sentence imposed on the respondent by the District Court. The respondent was convicted of 32 offences of a sexual nature against young children and was sentenced to a total of 14 years imprisonment, with a recommendation for parole after serving two years. The offences involved indecent treatment of children under 16, indecent dealing with an intellectually impaired person, and attempting to sodomize the same person when they were under 18 years of age. The respondent was a foster parent of the victims, and the offences were committed over a substantial period of time. The court had to consider the severity of the offences, the mitigating factors, and whether the sentence imposed was manifestly inadequate.

The legal issues that the court had to decide were whether the sentence imposed by the District Court was manifestly inadequate and whether the mitigating factors justified a lesser sentence. The court considered the nature of the offences, the position of trust held by the respondent, the age of the victims, and the mitigating factors, including the respondent's confession, genuine remorse, and low likelihood of re-offending. The court also compared the sentence imposed in this case to similar cases decided by the Court of Appeal.

The court found that the sentence imposed by the District Court was within the appropriate range for the present offences, given all the relevant circumstances of the case. The court considered the mitigating factors and the seriousness of the offences and concluded that the sentence was not manifestly inadequate. The court also noted that the maximum sentence for these offences had increased since similar cases were decided, and this had to be taken into account. The appeal was dismissed, and the sentences imposed by the District Court were upheld.

In conclusion, the Court of Appeal dismissed the appeal and upheld the sentences imposed by the District Court. The court found that the sentence was within the appropriate range for the present offences, given all the relevant circumstances of the case. The court considered the mitigating factors and the seriousness of the offences and concluded that the sentence was not manifestly inadequate. The appeal was dismissed, and the sentences imposed by the District Court were upheld.

Orders