R v Schirmer - [1995] QCA 242

COURT OF APPEAL

[1995] QCA 242

PINCUS JA
de JERSEY J

AMBROSE J

CA No 84 of 1995
THE QUEEN
v.

IAN BRUCE SCHIRMER

Applicant

BRISBANE
..DATE 26/04/95
PINCUS JA: In Schirmer, Mr Justice Ambrose will give the
first judgment.

AMBROSE J: In this matter the applicant appealed against a sentence of imprisonment for three years, imposed upon him when he was convicted upon two counts of indecently dealing with a girl who, at the time of the offences, was about nine years and five months of age.

The first count involved the applicant approaching the little girl when she was sitting in her father's van, playing with some dolls. Her father was doing some carpet cleaning in premises in which the applicant conducted business. He came out to the van and put his hand up inside her pants and touched her about the vagina. The case proceeded on the basis that he touched her on the outside of the vagina and that there was no digital penetration.

Shortly after that event the applicant went out to the van again and asked the complainant, or persuaded the complainant, to go into his office in the building where her father was cleaning carpets. There was only one chair in the room that he took her to and he invited her to sit on his knee. When she did this he again put his hand up inside her panties and again touched her on the outside of the vagina.

The complainant did not tell her father or mother, who were separated at the time, about these events. Some time later one of her girlfriends, apparently of about the same age, told

her that a man had touched her on her vagina and the
complainant, by letter written in February 1994, nearly a year
and a half after the commission of the offences by the
applicant, wrote a letter to her friend, telling her friend
that she had also been touched on the vagina, specifying the
applicant as the man involved, and asked her friend to keep
that information secret. This letter was found by an adult
and the matter was referred to the police for investigations.

At the time of the offence the applicant was between 32 and 33 years of age. His marriage had broken up and he was living separately from his wife and four children. The complainant's father gave evidence that he had spent between 2 and 2 and a half hours cleaning carpets for the applicant. This occurred on a Sunday morning. In the course of the trial, counsel for the applicant put to the complainant that in fact the applicant did not touch her on the vagina as she had claimed.

The record does not suggest that the child was in any way overborne and she simply denied the suggestions put to her, no doubt upon instructions.

The applicant did not give evidence or call evidence. The
case was a very short one; it started just…

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 Schirmer

Details

AGLC: R v Schirmer [1995] QCA 242
Case: [1995] QCA 242
Decision Date: 26/04/1995

CaseChat Overview and Summary

The applicant, Ian Bruce Schirmer, appealed against a sentence of three years imprisonment, which was imposed following his conviction on two counts of indecently dealing with a young girl. The Court of Appeal heard the case and provided its judgment. The legal issues that the Court of Appeal had to decide involved whether the sentence imposed was manifestly excessive and whether a lower sentence would be more appropriate, considering the nature of the offences and the applicant's previous conviction.

The Court of Appeal examined the facts of the case, which involved the applicant touching the complainant, a young girl, on the outside of her vagina on two separate occasions. The Court noted that the offences were of a less serious nature than some previous cases but took into account the applicant's prior conviction for a similar offence involving a child of a similar age. The Court then compared the facts of the present case with other cases cited by both counsel, such as Herbert and R v B. The Court of Appeal concluded that the sentence of three years was manifestly excessive and decided to allow the appeal, setting aside the original sentence.

In lieu of the original sentence, the Court of Appeal imposed a sentence of two years imprisonment. The Court recommended that the applicant receive counselling and therapy while undergoing his imprisonment to address any medical, psychological, or psychiatric condition that may have contributed to the commission of the offences. The Court further recommended that the parole board consider the applicant's efforts to receive and respond to treatment when considering an application for parole and that parole should be granted on the condition that the applicant continue to receive treatment if required.

The final order of the Court of Appeal was as follows: the application for leave to appeal was granted, the appeal was allowed, the sentence imposed below was set aside, and in its place, the applicant was sentenced to a term of two years imprisonment. The Court also recommended that the applicant receive treatment during his imprisonment and that the parole board consider the applicant's efforts to receive and respond to treatment when considering an application for parole, with the possibility of imposing further treatment as a condition of parole.

Orders