R v W - [1999] QCA 124

99.124

COURT OF APPEAL
de JERSEY CJ
DAVIES JA

FRYBERG J

CA No 460 of 1998
THE QUEEN
v.

(Applicant) Appellant

BRISBANE
..DATE 14/04/99
140499 T6/SJ3 M/T COA74/99
DAVIES JA: The applicant pleaded guilty in the District
Court on 10 December 1998 to incest with his sister
between 1 January 1993 and 6 August 1998. He was
sentenced to 18 months' imprisonment and he seeks leave
to appeal against that sentence.

The offence to which the applicant pleaded was in fact a single offence occurring on the night of 4 August 1998.

The circumstances giving rise to the commission of this offence are, in my view, unusual. When it occurred the applicant was 46 years of age having been born on 28 May 1952 and his sister was then 32. They had been separated when they were very young, she was only 18 months old at the time. They were reunited in 1993 believing that they may be brother and sister but not knowing that they were. They commenced to have sexual intercourse soon after that and that continued after it became known to the applicant that they were in fact brother and sister. By that time the applicant's sister appears to have had several children by another father.

The relationship continued for some time but had ceased about two years prior to 4 August 1998. On that night they committed a single act of sexual intercourse which was initiated by the applicant's sister. The offence was therefore unusual in that by the time sexual intercourse occurred between the applicant and his sister they were both mature adults; that they voluntary ceased their relationship; and that the offence to which the applicant pleaded guilty was one isolated act of 140499 T6/SJ3 M/T COA74/99

sexual intercourse two years after that relationship ceased. It also appears that both the applicant and his sister have substantial intellectual difficulties.

According to his counsel before the learned sentencing Judge below the applicant greatly regretted the offence and suffered a great deal of embarrassment and humiliation by the charge which was brought against him.

He came from a very violent and abusive family and was
often whipped with a stockwhip by his father when a
child. On one occasion his father hit him with an axe.
It was for this reason that he was placed in foster

homes and thereby became separated from his sister and

other siblings.

The applicant has a minor and irrelevant criminal history and has never been to gaol. Offences of incest cover a very wide range, much wider than that envisaged by the learned sentencing Judge, see for example The Queen v. P (1998) 2 Qd.R 191. However, this case is toward the lower end of the range, the opposite end from that considered in P.

Where the intercourse which occurs is between mature consenting adults the main community concern is the effect which that may have on children born to the parties. The risk of that occurring may vary…

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 W

Details

AGLC: R v W [1999] QCA 124
Case: [1999] QCA 124
Decision Date: 14/04/1999

CaseChat Overview and Summary

The case of R v W involved the applicant who pleaded guilty to an act of incest with his sister. The act occurred on 4 August 1998, and the applicant was sentenced to 18 months' imprisonment. The applicant sought leave to appeal against the sentence, arguing that it was inappropriate given the circumstances of the case. The unusual nature of the offence was highlighted, as the applicant and his sister were mature adults who had been reunited after being separated since infancy. They had a relationship that included sexual intercourse before discovering their true relationship and continued even after they knew they were siblings. The offence in question was a single act of sexual intercourse that occurred two years after they had ceased their relationship.

The court was required to determine whether the sentence of imprisonment was appropriate, considering the nature of the offence and the circumstances surrounding it. The court noted that while incest laws exist to protect the genetic integrity of the community and to prevent exploitation, the circumstances of this case did not necessarily require a custodial sentence. The applicant had a minor criminal history, no prior imprisonment, and had expressed deep regret for the offence. The court also considered the background of the applicant, who had experienced a violent and abusive upbringing, which had led to him being placed in foster care.

The Court of Appeal concluded that the sentence of imprisonment was inappropriate given the circumstances. Justice Davies noted that both the prosecutor and defence counsel had agreed that imprisonment was not necessary, and there was no benefit in imposing probation or community service. The Court held that the applicant should be released upon entering into a recognisance of $200, conditioned on keeping the peace and being of good behaviour for two years. The conviction was to be recorded, and the applicant was to be released if he met the conditions specified.

Orders