R v SDX [No 2] Applicant - [2024] QCA 78

[2024] QCA 78

COURT OF APPEAL

MULLINS P
CROW J
CROWLEY J

CA No 174 of 2023
DC No 364 of 2019

SDX [No 2] Applicant

BRISBANE

THURSDAY, 9 MAY 2024

JUDGMENT

MULLINS P: On 25 February 2021, the applicant was convicted after trial in the District Court before a jury of two counts of indecent treatment of a child under 16, under 12, under care. He was acquitted of another three counts of the same offence against the same complainant on the indictment. His appeal against that conviction was dismissed: R v SDX [2022] QCA 269. The applicant’s sentence was deferred until after the conviction appeal. On 1 September 2023 he was sentenced for each count to imprisonment for 18 months suspended after serving imprisonment of 9 months for an operational period of 18 months.
The applicant applies for leave to appeal against his sentence on the ground the sentence is manifestly excessive. He appears for himself on this application.
The complainant who was 8 years old was a friend of the applicant’s son who was 7 years old and had a sleepover at the appellant’s house on 18 April 2018. The two children went to sleep in the same bed and the applicant lay in the bed with them. The complainant was in between the applicant and his son. During the night the complainant woke to the applicant touching her. The applicant put the complainant’s hand on his erect penis over his clothes and moved her hand in a masturbating motion for about 10 seconds. That constituted count 1. Count 2 was constituted by the act of the applicant putting his hand under the complainant’s underpants and touching her vagina on her bare skin. The applicant stopped and fell asleep at the end of the bed. The complainant complained the next day. When the police spoke to the applicant, he denied any inappropriate touching. The offending had a profound impact on the complainant and her family.
The applicant was 33 years old at the time of the offending and was married with one son. He and his wife subsequently had a second child. The applicant had one prior irrelevant conviction. He is a citizen of another country and had a permanent resident’s visa at the time of the offending. His wife and children are Australian citizens. His last employment was in 2017 and he ceased working after suffering a workplace injury to his shoulder. He had been struggling with depression from about 2016/2017. The applicant relied on reports from his treating psychiatrist that were tendered at the sentencing that showed that the applicant had been diagnosed with persistent depressive disorder for which he was being treated.
At the sentencing hearing, the applicant’s counsel had urged the sentencing judge to find exceptional circumstances existed to preclude actual custody. The factors relied on were that the applicant did not have any relevant criminal history and was otherwise of good character, he was successful in part at the…

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 SDX [No 2] Applicant

Details

AGLC: R v SDX [No 2] Applicant [2024] QCA 78
Case: [2024] QCA 78
Decision Date: 9 MAY 2024

CaseChat Overview and Summary

In the Court of Appeal of Queensland, the applicant, SDX, appeals against the sentence imposed following his conviction for indecent treatment of a child under 16. The conviction was upheld on an earlier appeal, and the applicant now challenges the sentence as manifestly excessive. The Court of Appeal, consisting of Mullins P, Crow J, and Crowley J, was tasked with determining whether the applicant's appeal against the sentence should be granted.

The primary legal issue before the Court was whether the sentence imposed was manifestly excessive. The applicant argued that his sentence of 18 months imprisonment, suspended after serving 9 months, was excessive given his lack of criminal history, his mental health issues, and the delay in sentencing. The prosecution maintained that the sentence was appropriate given the gravity of the offence and the need for general deterrence.

The Court of Appeal considered the sentencing judge's reasoning and concluded that the sentence was appropriate. The sentencing judge had rejected the argument for exceptional circumstances and highlighted the need for general deterrence and denunciation of the applicant's abhorrent behaviour. The Court found that the sentencing judge had considered all relevant factors and appropriately balanced them. The Court noted that the sentence imposed was less than the 2 years that the sentencing judge considered appropriate, and the partially suspended sentences provided certainty regarding the custodial component. The Court found that the applicant had not demonstrated that the sentence was unreasonable or plainly unjust, and therefore, the application for leave to appeal was refused.

The Court's final order was that the application for leave to appeal is refused. The Court adjourned, concluding the proceedings.

Orders