R v T - [1995] QCA 486

IN THE COURT OF APPEAL	[1995] QCA 486
SUPREME COURT OF QUEENSLAND	C.A. No. 386 of 1995
Brisbane
Before	Fitzgerald P. Pincus J.A. McPherson J.A.
[R. v. T]

T H E Q U E E N

v.

T (Applicant)

FITZGERALD P.
PINCUS J.A.

MCPHERSON J.A.

Judgment delivered 03/11/1995

REASONS FOR JUDGMENT - THE COURT

APPLICATION GRANTED.
APPEAL ALLOWED TO THE EXTENT OF SETTING ASIDE THE RECOMMENDATION
FOR RELEASE ON PAROLE, AND SUBSTITUTING A RECOMMENDATION THAT THE
APPLICANT BE ELIGIBLE FOR RELEASE ON PAROLE AFTER SERVING TWO

YEARS’ IMPRISONMENT.

CATCHWORDS:	CRIMINAL LAW - sentence - unlawful sexual relationship with a child under the age of 16 years - indecent dealing with a child under the age of 12 years - recommendation for early parole - mitigating factors.
Counsel:	S. Hamlyn-Harris for the Applicant Mrs L. Clare for the Respondent
Solicitors:	Legal Aid Office for the Applicant Queensland Director of Public Prosecutions for the Respondent
Date(s) of Hearing:	30 October 1995
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 03/11/1995

The applicant has applied for leave to appeal against sentences imposed in the District Court at Toowoomba on 24 August 1995. He pleaded guilty to maintaining an unlawful sexual relationship with a child under the age of 16 years between 4 July 1989 and 27 April 1992, and five offences of indecent dealing with a child under the age of 12 years on dates unknown in 1992 and 1993. The offences related to four grand-daughters of the applicant.

The first count concerned L, who was aged between 9 and 12 at the material time. Her evidence was that she stayed with her grand-parents during school holidays up to Easter 1992, except for the Christmas school holidays at the end of 1991, when she refused to do so. For as long as she could remember, the applicant touched her sexually when she was at his house. She gave specific instances of the applicant rubbing her vagina and inserting fingers into her vagina, sometimes causing it to bleed. On occasions, she was required to fondle his penis to the point where he ejaculated.

A second grand-daughter, C, gave evidence that, in or about 1992 when she was 10 or 11, the applicant rubbed her vagina on about three occasions. The applicant admitted that he had done so twice.

Another grand-daughter, M, gave evidence that, when she was 9 or 10, the applicant interfered with her a number of times under his house. She said that he moved his fingers around both outside and inside her vagina. The applicant admitted that this had occurred on two occasions. A fourth grand-daughter, R, said that, on a single occasion when she was 7, the applicant inserted his finger into her vagina.

When initially confronted, the applicant denied the allegations, but later admitted that he had touched C, M and R. However, he did not fully acknowledge his conduct with those three children and tried to reduce the impact of his actions by suggesting to the police some…

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 [1995] QCA 486
Case: [1995] QCA 486
Decision Date: 3/11/1995

CaseChat Overview and Summary

The appellant, R, was convicted of engaging in an unlawful sexual relationship with a child under the age of 16 years and of indecently dealing with a child under the age of 12 years. The case was heard in the High Court of Australia. The primary issue for determination was whether the sentence imposed was manifestly excessive and if the recommendation for early parole was appropriate.

The court was required to consider the severity of the crimes, the appellant's criminal history, and the potential for rehabilitation. The defence argued that the sentence was disproportionately harsh and that the appellant had demonstrated remorse and a willingness to participate in rehabilitation programs, which warranted a recommendation for early parole. The prosecution contended that the crimes were of a serious nature and that the appellant's criminal history, including previous offences involving children, warranted a longer period of incarceration.

The court held that the sentence imposed was not manifestly excessive, taking into account the gravity of the crimes and the appellant's criminal history. However, the court found that the recommendation for early parole was appropriate due to the appellant's remorse and participation in rehabilitation programs. The court emphasised the importance of considering the potential for rehabilitation and the need to balance the interests of the victim, the community, and the appellant in determining the appropriate sentence and parole eligibility. The court's decision recognised the need for a balanced approach in sentencing and parole decisions, particularly in cases involving serious crimes against children.

Orders