R v Y - [1997] QCA 87

[1997] QCA 087

COURT OF APPEAL
DAVIES JA
WILLIAMS J

MACKENZIE J

CA No 23 of 1997
THE QUEEN
v.

Y	Applicant
BRISBANE ..DATE 18/04/97
JUDGMENT
180497 T10/JR5 M/T COA68/97

WILLIAMS J: On 10 January 1997 the applicant pleaded guilty to one count of maintaining a sexual relationship with a child under the age of 16, 16 counts of indecent dealing with a child under 14, five counts of indecent dealing with a child under 16 and 11 counts of aggravated and indecent assault.

The learned sentencing Judge imposed sentences with respect to each of the offences but the operative sentence for present purposes was that of five years' imprisonment without any recommendation for early parole imposed with respect to the charge of maintaining a sexual relationship with a child under the age of 16.

The application is primarily based on the proposition that the learned sentencing Judge failed to give adequate allowance for the applicant's early plea, his remorse, his previous good character and the fact that he, by pleading guilty, avoided the consequence of the complainant girl having to give evidence.

The complainant girl was the step-daughter of the applicant. The conduct in question commenced shortly after the applicant and the complainant's mother commenced living together. The conduct occurred over a broad period of time from July 1985 to December 1992 and that covered the period from the girl being aged about eight to being aged 14. The offences therefore commenced when the complainant was particularly young, and in my view it is of great significance that 32 specific incidents were able to be particularised for purposes of framing the indictment.

2 JUDGMENT

180497 T10/JR5 M/T COA68/97

Many of the offences involved penetration of the girl's vagina by use of the finger or tongue of the applicant. The offences were clearly without consent and there were instances of the applicant relying on his position of authority over the child in order obtain her reluctant acquiescence in what was happening.

The conduct ceased when the girl reached an age where she was able to stand up for her rights, so far as the applicant's advances were concerned. When she made it clear to him that she did not want the conduct to continue he said words to the effect, "You have made your decision, you live with it." According to her statement, after that his treatment of her was horrible. He would not speak to her, he would yell at her if he had anything to say. It is also a case where there was clear evidence before the sentencing Judge that the conduct of the applicant has had a major and continuing psychological impact on the young woman. She is having extreme difficulty in her relationships with male friends and that is a matter to which the Court can have regard.

The learned sentencing Judge said that he had regard to the factors that I have already mentioned in fixing the head sentence of five years. Counsel for…

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 Y

Details

AGLC: R v Y [1997] QCA 87
Case: [1997] QCA 87
Decision Date: 18/04/1997

CaseChat Overview and Summary

In the case of R v Y, the applicant was found guilty of multiple charges including maintaining a sexual relationship with a child under 16, and various counts of indecent dealing and assault involving his step-daughter. The relationship began when the victim was approximately eight years old and continued until she was fourteen, during which time the applicant committed numerous acts of sexual abuse. Following his guilty plea, the applicant was sentenced to a term of five years' imprisonment with no recommendation for early parole. The applicant appealed against the severity of the sentence, arguing that the sentencing judge did not adequately consider mitigating factors such as his early plea, remorse, previous good character, and the avoidance of the victim having to testify.

The Court of Appeal was tasked with determining whether the sentencing judge appropriately balanced the mitigating factors against the gravity of the offences. The court considered the extensive nature of the abuse, which included multiple instances of forced oral and vaginal penetration over a prolonged period, and the significant psychological impact on the victim. The court also noted the applicant's otherwise good character and the fact that he pleaded guilty, thereby sparing the victim the trauma of court proceedings.

The Court of Appeal found that the sentencing judge had considered the mitigating factors but ultimately concluded that the sentence was appropriate given the severity of the offences and their impact on the victim. The court compared the sentence with other cases of similar gravity and found that the five-year sentence was within the appropriate range. The appeal against the sentence was dismissed, and the original sentence was upheld. The judges confirmed that the sentence was well-considered and appropriate in the circumstances.

Orders