R v. T; Ex Parte A-G - [2001] QCA 398

[2001] QCA 398

COURT OF APPEAL

de JERSEY CJ

CHESTERMAN J

MULLINS J

CA No 118 of 2001

DC No 16 of 2001

TRespondent

ATTORNEY-GENERAL OF QUEENSLANDAppellant

BRISBANE

DATE 24/09/2001

JUDGMENT

MULLINS J:The Attorney-General appeals against the sentence imposed by the learned sentencing Judge on 27 April 2001 on the respondent, for six counts of indecent treatment of a girl under sixteen years with a circumstance of aggravation that the complainant was under the age of 14 years.

The respondent was convicted after a trial in which the complainant gave evidence.The respondent faced a further count during that trial of rape on which the jury failed to agree on a verdict and that charge has subsequently been discontinued.The one sentence was imposed in respect of the six counts which was a term of imprisonment for 18 months wholly suspended for an operational period of three years.

The respondent was born on 16 March 1947.He married the mother of the complainant in January 1978.The household then became the respondent, his wife, her two daughters including the complainant, and the respondent's two sons from a previous marriage.There was also a child of the relationship between the respondent and the complainant's mother.

The offences occurred over a period of two years in 1983 and 1984 when the complainant was between eight years and 10 years old.The evidence of the complainant in respect of the offences of which the respondent was convicted was - Count 1 - the respondent pinched the complainant near the vagina; Count 2 - the respondent cupped his hand under the complainant's vagina; Count 3 - the respondent took the complainant from her bath and placed her on a bunk bed and inserted a finger in her vagina; Count 4 - the complainant entered the laundry where the respondent was and he got her to masturbate or to assist to masturbate him; Count 5 - while holidaying on Stradbroke Island the respondent invited the complainant into his bed and penetrated her vagina with his finger; Count 7 - in the respondent's bedroom the respondent lay on top of the complainant and rubbed his penis in the area of her vagina.

The respondent gave evidence at the trial in which he denied the conduct the subject of each of the six counts.He did admit in his evidence to touching the complainant on three occasions but his description of the touching and the circumstances in which it occurred did not accord with any of the counts on the indictment.

The complainant did not report the respondent's conduct to her mother until 1989.It was then reported to the police and statements were taken from the complainant.Prosecutions were not commenced at that time.The explanation may lie in the fact that after the complainant's mother became aware of the respondent's conduct the respondent left the matrimonial home but there was a reconciliation some four to six weeks later and the household continued as it had before the short period of separation until 1995…

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; Ex Parte A-G

Details

AGLC: R v T; Ex Parte [2001] QCA 398
Case: [2001] QCA 398
Decision Date: 24 September 2001

CaseChat Overview and Summary

The Court of Appeal in this case considered an appeal by the Attorney-General against the sentence imposed on a respondent, who was convicted of six counts of indecent treatment of a girl under sixteen years, with an aggravating circumstance that the complainant was under the age of 14 years at the time of the offences. The respondent was sentenced to a term of imprisonment for 18 months, wholly suspended for an operational period of three years. The Attorney-General argued that the sentencing process miscarried as the sentencing Judge treated the respondent's offer to plead guilty to four counts prior to trial as a mitigating factor, which overlooked that the respondent pleaded not guilty, gave evidence denying the offences, and the complainant was required to give evidence.

The legal issues before the court were whether the sentencing process miscarried due to the sentencing Judge's treatment of the respondent's offer to plead guilty as a mitigating factor and whether an actual custodial sentence was still called for, considering the mitigating factors and the nature of the offences. The court held that there was an identifiable error in the sentencing process in treating the preparedness to plead guilty to counts 1 to 4 on the indictment prior to trial as eliminating the fact that the respondent pleaded not guilty. However, it was open to the sentencing Judge to take account of the numerous mitigating factors favouring the respondent. The court further held that, despite the mitigating factors and the fact that this was an appeal by the Attorney-General, an actual custodial sentence was still called for due to the gravity of the conduct, the need for deterrence and denunciation.

The Court of Appeal allowed the appeal and substituted a sentence of 18 months imprisonment, suspended after six months for an operational period of three years. The Chief Justice and the other two judges agreed with the order proposed and the reasons given by Justice Mullins. The order was to lie in the registry for seven days pending execution.

Orders