R v W - [1998] QCA 343

[1998] QCA 343

COURT OF APPEAL

McMURDO P
PINCUS JA
AMBROSE J

CA No 113 of 1998

THE QUEEN

W Applicant

BRISBANE

DATE 26/08/98

JUDGMENT

THE PRESIDENT: The applicant pleaded guilty in the District Court at Maroochydore to one count of maintaining a sexual relationship with a circumstance of aggravation - count 1, three counts of unlawful carnal knowledge of a female under 16 years with a circumstance of aggravation - counts 2, 5, and 8, and three counts of wilfully exposing a child to an indecent act with a circumstance of aggravation - counts 4, 7 and 10.

He was sentenced on 16 March 1998. The offences occurred between 19 July 1996 and 30 November 1996. The applicant was sentenced to seven years imprisonment on counts 1, 2, 5 and 8 and four years imprisonment on counts 4, 7 and 10, with a recommendation that he be considered eligible for parole after serving three years of those sentences. The applicant claims the sentence is manifestly excessive.

The applicant was charged jointly with his then de facto, BJS. She is 26 years of age with no criminal history. The applicant is now 32 and has prior convictions relating to marijuana use from 1984 to 1986 and a conviction for driving a motor vehicle with a blood alcohol level of .11 in 1988.

BJS was charged with three counts of unlawful carnal knowledge with a circumstance of aggravation - counts 2, 5 and 8, with W, three counts of indecent dealing with a circumstance of aggravation - counts 3, 6 and 9, BJS only, and three counts of wilfully exposing a child to an indecent act with a circumstance of aggravation - counts 4, 7 and 10, with W.

The applicant and BJS lived in a de facto relationship. BJS had two young children, the youngest of which was fathered by the applicant. The complainant in respect of all charges was 13 at the time. Both accused were in a special position of trust towards her as her mother was a close friend of each of them. The complainant child became very close to BJS when she and her mother lived with BJS and the applicant for a time.

The complainant referred to the applicant and BJS as "Uncle" and "Aunt" and it was agreed their relationship was like that of godparents. They were to look after her if anything happened to her mother. There was some tension between the complainant and her mother and she would find every opportunity to spend time with the applicant and BJS. She would baby-sit BJS's children; she was offered and allowed to smoke cannabis at their home.

The first incident occurred as a result of the complainant having missed her school bus and having permission from her mother to stay with the applicant and BJS. BJS suggested to the complainant that all three engage in sexual activity. BJS and the applicant returned to the bedroom bringing cannabis and beer which was shared by…

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 [1998] QCA 343
Case: [1998] QCA 343
Decision Date: 26/08/1998

CaseChat Overview and Summary

In the case of R v W, the applicant appealed against his sentence imposed by the District Court at Maroochydore. The applicant had pleaded guilty to various offences, including maintaining a sexual relationship with a child under 16, unlawful carnal knowledge, and exposing a child to an indecent act. The applicant claimed the sentence of seven years imprisonment with a recommendation for parole after serving three years was manifestly excessive. The Court of Appeal considered whether the sentencing principle of parity of sentences between co-offenders required an alteration to the applicant's recommendation for parole.

The legal issue before the Court was whether the disparity between the sentences imposed on the applicant and his co-accused, BJS, warranted the intervention of the Court. The Court noted that mere disparity between the sentences of co-offenders was not in itself a ground for intervention by an appellate Court. Instead, the difference between sentences must be such that the disparity engenders a justifiable sense of grievance on the part of the applicant, or the disparity must give the appearance that justice has not been done.

The Court of Appeal found that the disparity between the recommendation for release on parole for BJS after serving 18 months of her term of imprisonment and the recommendation for release on parole for the applicant after serving three years of his term of imprisonment did suggest a justifiable grievance. The Court considered that the applicant's plea of guilty and cooperation with authorities should have been given more weight. The Court concluded that a recommendation for parole for the applicant after serving two years of his sentence would be just and would not leave him with a justifiable sense of grievance.

The Court allowed the application for leave to appeal against sentence and varied the recommendation for release on parole after serving three years imprisonment to one of a recommendation for release on parole after serving two years imprisonment. Otherwise, the sentence below was confirmed.

Orders