R v Smith

[1995] QCA 59

IN THE COURT OF APPEAL [1995] QCA 059

SUPREME COURT OF QUEENSLAND

C.A. No. 14 of 1995

Brisbane

[R. v. Smith]

THE QUEEN
v.
CRAIG ANTHONY SMITH

Appellant

Fitzgerald P.
Davies J.A.

McPherson J.A.

Judgment delivered 08/03/1995

Judgment of the Court.

A PPEAL DISMISSED AND APPLICATION FOR LEAVE TO APPEAL REFUSED.

CATCHWORDS: CRIMINAL LAW - indecent dealing, carnal knowledge and anal intercourse with girl under 12; medical corroboration; whether reasonable jury able to conclude beyond reasonable doubt as to penetration.

Counsel:	Mr. D. Lynch for the appellant
Ms. L. Clare for the respondent
Solicitors:	Legal Aid Office for the appellant
Queensland Director of Public Prosecutions for the respondent
Hearing Date: 28 February 1995 her anus. Nor did she know what it meant to ejaculate. But she felt something going in and out of her bottom which hurt a lot and she could see his shadow moving up and down on top of her. Whilst he was lying on the bed before he rolled her over his underpants were down to his knees and his penis was exposed. Her evidence of ejaculation was that she later felt a sticky substance on her bottom.	REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 8th day of March 1995

The appellant was convicted in the District Court at
Ipswich on 15 December 1994 of indecent dealing with a girl
under 12 and carnal knowledge by anal intercourse of a girl
under 12. He was sentenced to 18 months imprisonment on the
first of those charges and eight years on the second. He has
appealed against his convictions and sought leave to appeal
against his sentences. In substance his appeal and application
for leave to appeal are against the conviction and sentence for
carnal knowledge only.
On 6 May 1994 K, who was then aged 10, was staying
overnight at the house of her young friend A. A lived with her
mother and several siblings. The appellant, who had apparently
formerly had a sexual relationship with A’s mother also visited
the house that night. He was intoxicated when he arrived. He
stayed the night and it was during the course of that night that
the alleged offences occurred.
K and A went to bed about 10.30 p.m. They were to sleep in
a bedroom on two mattresses laid side by side on the floor.
Shortly after they lay down the appellant entered the room, lay
between them and cuddled and kissed each of them. He was asked
to leave the room by A's mother and he did so.
He and A's mother then stayed in the lounge room for some
time during the course of which they kissed and he fondled her
breasts. He then went to sleep, or appeared to do so, on a
couch in the lounge room and some time later A's mother also
went to sleep apparently in her own bedroom.

During the course of this she had told him to get off and

There was strong corroborative evidence of an object the
size of a man's penis having been recently inserted into her
anus. A doctor who examined her on 9 May described a gross
dilation of the anal sphincter indicating recent penetration.
This was, according to the doctor, a grossly abnormal finding
consistent with penetration by a blunt object approximately
equal to the size of an adult male penis. When asked whether
the penetration could have been by a finger the doctor plainly
thought not although it was consistent with at least two large
men's sized fingers or perhaps three fingers of a smaller man.

Some time during the night, according to K, the appellant
again entered the girls' bedroom and lay between them. He then
removed her clothing and touched her vaginal area with his
fingers. He then, she said, rolled her onto her stomach, got on
top of her and inserted his penis into her anus. He then moved
it in and out and ejaculated.

had attempted to get him off by kicking. reasonable jury to conclude beyond reasonable doubt that the penetration of the girl's anus had been by the appellant's penis. On the contrary, in our view, the evidence to which we have referred - the exposure of his penis immediately before the commission of the alleged offence, the observation by K of the appellant moving up and down on top of her, the sticky feeling on her bottom immediately afterwards and the medical evidence - all point very strongly to penetration by the appellant's penis.

In rejecting any other theoretical possibility, the jury was entitled to take account of the appellant's failure to give evidence of what occurred: Weissensteiner v. R. (1993) 178 C.L.R. 217. Of course, he made that difficult for himself by conducting his defence on the basis, obviously rejected by the jury as false, that the incident described by the complainant did not occur.

The appeal should therefore be dismissed.

The appellant committed the offence the day before his 19th birthday. Moreover his criminal history was negligible and he had never before been to gaol. There are however no other redeeming features of this case.
His behaviour was repulsive and committed in circumstances where he must have known of the pain and fear he was inflicting on a small 10 year old child. Moreover the child's fear must have been increased by a threat which the appellant made to repeat his attack on her. It is impossible to gauge the psychological harm which this incident must have caused the complainant child. It is also of some relevance that the child, as the appellant must have known, was placed in the care of the adult members of the household which included him.

The appellant showed no remorse for his conduct. He defended the case denying any involvement with K and, no doubt on his instructions, she was submitted to cross-examination.

In the course of making submissions with respect to sentence in the Court below the appellant's counsel submitted that the appropriate range was five to seven years whilst counsel for the respondent submitted that the range was seven to nine years. Submissions approximating those were, on each side, made to this Court.

We were referred to a number of cases involving sentences for rape and sodomy. None was closely comparable to this. Nevertheless it is true that they show that, having regard to the appellant's youth and absence of relevant prior criminal conduct, the sentence imposed was a high one. On the other hand, having regard to the serious aspects of the offence referred to above, it was not so high as to be outside the range of a sound sentencing discretion. The application for leave to appeal should therefore be refused.