R v T - [1999] QCA 330

99.330

COURT OF APPEAL
McPHERSON JA
THOMAS JA

DERRINGTON J

CA No 203 of 1999
THE QUEEN
v.

Applicant

BRISBANE
..DATE 18/08/99
180899 T31/SJ3 M/T COA197/99
DERRINGTON J: The applicant is now 42 years of age. He
committed seven offences against his daughter between
October 1994 and July 1995 when she was about 13 years of
age. Counts 1 to 3 and 5 to 7 involved indecent dealing
with a child under 16 years of age with circumstances of
aggravation and count 4 was a count of attempted incest.
He was sentenced to 18 months' imprisonment on counts 1,
2, 3 and 5, two years' imprisonment on counts 6 and 7 and
three and a half years' imprisonment on the count of
attempted incest. The maximum sentences in those cases
was 10 years.

At the hearing learned counsel for the applicant submitted that the appropriate sentence was two to four years but that was probably somewhat generous to himself and the appropriate sentence in the circumstances such as this for the attempted incest is about three to four years.

It would seem that the learned sentencing Judge adopted
the mean of the maximum and minimum. He made a
recommendation that the applicant be eligible for parole
after 18 months. Learned counsel for the applicant does
not challenge any aspects of the sentence except that he
argues that the recommendation for eligibility for early
parole is inadequate having regard to the appellant's
timely pleas of guilty, thereby saving his daughter from
any appearance in the witness box.
180899 T32/MT1 M/T COA197/99
The applicant's prior criminal history was of no relevant
significance, consisting substantially of three drink
driving offences between 1975 and 1980. He was the
natural father of the complainant and had separated from
her mother in 1992. They were subsequently divorced in
March 1994. The complainant at first joined her mother,
who then entered into a new relationship, but tension
arose between the complainant and the children of her
mother's new partner. Because of this the complainant
then went to reside with the appellant in his unit in
August 1994.

About two months later the appellant began playing soothing music and then initiated a conversation supposedly about sexual education. It was then that he committed count 1. He pretended to be teaching her how to identify a circumcised penis and for that supposed purpose removed his shorts. When she verbally objected he became angry and directed her to remove her own clothing. She was afraid and began crying but complied.

He made her parade naked in front of him saying that he
had not seen a female body in a while and a man needs to
see one occasionally. He then directed her to take his
erect penis in her hand and then he moved her hand in a
masturbation fashion. He also fondled her breasts and
played with her nipples. This continued for some time.
180899 T32/MT1 M/T COA197/99
Shortly after he committed count 2 by laying naked…

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 T

Details

AGLC: R v T [1999] QCA 330
Case: [1999] QCA 330
Decision Date: 18/08/1999

CaseChat Overview and Summary

In the case of The Queen v. T, the applicant, aged 42, appealed against his sentence for multiple offences against his 13-year-old daughter. These offences, which took place between October 1994 and July 1995, included indecent dealing with a child under 16 years of age and attempted incest. The applicant was sentenced to a total of 10 years imprisonment, with specific terms for each count, and a recommendation for parole eligibility after 18 months. The applicant's counsel argued that the parole recommendation was inadequate given his timely pleas of guilty, which spared his daughter from testifying. The primary legal issue before the court was whether the sentencing judge's recommendation for parole eligibility was appropriate, considering the applicant's early guilty plea.

The court found that the sentence imposed was within the appropriate range for such serious offences, particularly given the vulnerability of the victim and the repetitive nature of the crimes. The court acknowledged the applicant's plea of guilty and the protection it afforded the complainant but determined that the three-month reduction in parole eligibility was reasonable and not an abuse of discretion. The Court of Appeal held that it would be inappropriate to alter the sentence, as doing so would constitute undue interference with the sentencing judge's authority. The appeal was dismissed, and the original sentence and parole recommendation were upheld.

Orders