R v Tappi - [1996] QCA 46

COURT OF APPEAL

[1996] QCA 046

MACROSSAN CJ
PINCUS JA

DAVIES JA

Appeal No 420 of 1995
THE QUEEN
v.

EDWARD JOHN TAPPI	Appellant
BRISBANE ..DATE 06/02/96
JUDGMENT
060296 D.1 T1/BP M/T COA96/5

THE CHIEF JUSTICE: The applicant was convicted of an offence committed in 1994 of indecently dealing with a girl under the age of 12. He was sentenced on 22 September of last year to a term of imprisonment of six years. There is no doubt that the term imposed resulted from the applicant's very bad criminal history to which I shall refer in a moment. The complainant in this case was 10 years of age at the time the offence was committed.

The complainant girl had been in a group which had spent time at a hotel and after the various events of the evening had run their course up to a certain point she was again in a group including her mother at the house where the mother, the complainant and her brother were staying. The applicant, a member of the group, had been drinking, obviously to a considerable extent. Members of the group went to sleep at various locations in the house. The complainant's story, supported by other evidence was that when she was asleep, the applicant commenced to interfere with her sexually.

She was awakened in her position sleeping on a mattress on the floor of a room by feeling the applicant's hand on her bottom underneath the knickers she was wearing. He was reaching around to her vagina. She had been sleeping on her stomach on the mattress. The applicant, she said, then pulled her pants down to her ankles and apart from touching her on and around the area of her vagina, he started licking her on her bottom. The applicant commenced to threaten the complainant when he appreciated she was awake and did so in extreme terms. He said he would kill everyone in the house and the complainant would be

2 JUDGMENT

060296 D.1 T1/BP M/T COA96/5

the first if she didn't let him touch her. He was whispering this to her. The complainant became, understandably enough, very upset and commenced to cry and she called out. The result was that others in the house were awakened, came to see what was going on and once it was appreciated what had happened the applicant was ejected from the household.

He did not go without something of a struggle, or at least a fair measure of resistance, and he denied the complainant's accusations. He did not plead guilty at the trial which resulted, but was found guilty only at the end of that trial by the jury's verdict. There was no suggestion that the applicant had penetrated the complainant's body in the course of his interference with her as I have described it. The history which I have described as being a very bad one involved, on the Crown counsel's summary, five convictions for rape, two of attempted rape, one of…

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 Tappi

Details

AGLC: R v Tappi [1996] QCA 46
Case: [1996] QCA 46
Decision Date: 6/02/1996

CaseChat Overview and Summary

In the case of R v Tappi, the appellant, Edward John Tappi, was convicted of indecently dealing with a girl under the age of 12 and was sentenced to six years imprisonment. The complainant, who was 10 years old at the time of the offence, was sleeping when the appellant began to interfere with her sexually. She awoke and called out, leading to the intervention of others in the house and the appellant being ejected. The appellant, who had a very bad criminal history, denied the accusations and was found guilty by a jury. The sentencing judge noted the appellant's criminal history and imposed a sentence that the Court of Appeal found to be excessive.

The legal issues before the Court of Appeal were whether the sentencing judge was entitled to consider the appellant's criminal history in determining the sentence and whether the sentence was excessive. The Court referred to the High Court case of Veen v. R. No 2, which held that it is legitimate to consider the antecedent criminal history when it illuminates the moral culpability of the offender or shows his dangerous propensity or shows a need to impose punishment to deter the offender and other offenders from committing further offences of a like kind. However, the Court found that the sentence imposed was excessive when considering the actual acts for which the appellant had been punished.

The Court of Appeal allowed the appeal and set aside the sentence imposed by the sentencing judge, substituting in lieu a term of four years imprisonment. The judges found that the sentence was too high when having regard to the actual acts for which the appellant had been punished and that the appellant's criminal history did not justify a sentence at that level. The Court's order was to set aside the sentence and substitute a term of four years imprisonment.

Orders