R v WAG - [2002] QCA 304

[2002] QCA 304

COURT OF APPEAL

DAVIES JA
JERRARD JA

MACKENZIE J

CA No 22 of 2002
THE QUEEN
v

WAG

BRISBANE

DATE 16/08/2002

JUDGMENT

DAVIES JA: Justice Mackenzie will deliver his reasons first.

MACKENZIE J: The applicant pleaded guilty to two counts of unlawfully and indecently dealing with a girl under the age of 12 years. He was sentenced to six months imprisonment and probation for two years with a counselling condition. He had no prior convictions for offences of a similar nature. However, he had been fined for possession of drugs on two previous occasion and for street offences. He also had been placed on probation for two offences of unlawfully using motor vehicles.

At the time of the offences the applicant was in a de facto relationship with the complainant's mother. The girl was nine years of age. The complaint was not made to the police until over two years after the offences occurred.

The first offence occurred when the applicant was lying on a bean bag while the complainant's mother played a Play Station. While he lay there the complainant pressed her vaginal area against his hand. She continued to do this for five to 10 minutes unless he moved his hand away. He told the investigating police that he knew that what he was doing was wrong and that he could get into trouble for it.

The second offence occurred some time later when the complainant child approached him and asked him to rub her vagina in the same way as he had in the first incident. The applicant said that he did so on the outside of her pants for about a minute during which time the complainant was pushing her vaginal area against his hand.

He said that he had previously been asked by the complainant child about noises made by her mother at a time when her mother and the applicant were engaged in sexual relations, which the complainant had interpreted as him hurting her, for which he had given an explanation.

The applicant subsequently left the relationship and said that one motivating factor was to extricate himself from a situation which he did not know how to handle. He subsequently told the mother of the complainant what had happened between him and the girl.

The applicant co-operated in the investigation by giving a record of interview, consenting to a full hand up committal and notifying that he would plead guilty at an early stage. He was committed for sentence.

The Crown Prosecutor submitted below that a term of up to 12 months imprisonment was within range for an offence of this level, but also said that by reference to a schedule of comparable sentences there were authorities that would support defence counsel's submission that a suspended sentence would also be within range. In response his Honour said that he always understood that imprisonment was appropriate except in exceptional circumstances for this kind of case.

In support of the application for leave…

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 WAG

Details

AGLC: R v WAG [2002] QCA 304
Case: [2002] QCA 304
Decision Date: 16/08/2002

CaseChat Overview and Summary

The applicant, who was in a de facto relationship with the mother of the complainant, was convicted of two counts of unlawfully and indecently dealing with a girl under the age of 12 years. He was sentenced to six months imprisonment and probation for two years with a counselling condition. The applicant appealed against the sentence, arguing that the learned sentencing judge had erred in failing to find special or exceptional circumstances and not finding that he had demonstrated rehabilitation in the period between the commission of the offences and the making of a complaint.

The Court of Appeal considered the submissions made by the applicant and the Crown Prosecutor. The applicant argued that the imposition of a short term of imprisonment was counter-productive and inappropriate, and that the appropriate range was from imprisonment to be served by way of an intensive correction order to probation with appropriate conditions for counselling. The Crown Prosecutor submitted that a custodial sentence of up to 12 months imprisonment was appropriate in the circumstances of the case and that the sentence was not manifestly excessive. The Court of Appeal considered various authorities and found that the sentence imposed by the learned District Court Judge was within the proper sentencing discretion.

The Court of Appeal held that the application for leave to appeal against sentence should be refused. The Court found that the version of events upon which the applicant was sentenced displayed opportunistic rather than predatory conduct, but it did occur on two separate occasions, the second of which was after the applicant had realised that engaging in that kind of conduct could get him into trouble. The Court found that the sentence imposed by the learned District Court Judge was not outside a proper sentencing discretion. The order is as indicated by Justice Mackenzie.

Orders