The Queen v K

[2000] QCA 345

[2000] QCA 345

COURT OF APPEAL

PINCUS JA
McPHERSON JA
MOYNIHAN J

CA No 157 of 2000

THE QUEEN

v.

K  Applicant

BRISBANE

..DATE 22/08/2000

JUDGMENT

PINCUS JA:  This applicant was convicted of a number of offences committed last October.  He was sentenced to two years' imprisonment on one count and one year's imprisonment in respect of three others.  There was a recommendation for parole after serving nine months.

It is contended in the outline that there should have been a wholly suspended sentence or intensive correction order, but the argument as advanced by Mr Leask really was that there should have been about a year's head sentence, instead of two years' sentence. 

The applicant is 42; he has only a minor criminal history, which the primary Judge rightly regarded as of no real significance.  There was a burglary count, which was the third count, and the complainant in that count, whom I shall call "the mother", left her house on the evening of
9 October last.  There were five children of hers in the house, three boys, aged 11, 12 and 16 and two girls, one of whom was aged 7.

The complainant in the first count which proceeded (one having been abandoned), which was one of indecent treatment of a child under 16, was the 7-year-old girl.  The second count was one of assault occasioning bodily harm and the complainant there was the 11-year-old boy, whom I have mentioned.  The applicant pleaded guilty to having unlawfully and indecently dealt with the complainant girl and having unlawfully assaulted the complainant boy, to having attempted to enter the mother's dwelling at night with intent to commit an indictable offence and to having wilfully obstructed a police officer in the execution of his duty.  The primary Judge fixed the two years' sentence by reference to the total criminality; that is, the two years' sentence was one which he regarded as appropriate considering all these offences and that course has not been challenged by Mr Leask; it seems to represent the ordinary practice.

The prosecutor told the Judge at sentencing that at about 9.00 p.m. the applicant entered the mother's house where there were, as I have said, the five children.  The girl complainant was asleep in a downstairs bedroom.  The applicant proceeded to take a shower and later walked downstairs.  He entered the bedroom of the girl complainant - she had been asleep.  He was naked.  He tried to kiss her on the lips and said, "I love you."  He grabbed her hand and tried to grip it, but she resisted.  She was very frightened.  The 12-year-old boy heard his sister's voice, came into the bedroom and saw the applicant lying on top of the girl naked.  He told the applicant to get off and ran upstairs to get his brother.  He returned with the 11-year-old boy.  By this time, the applicant was walking around the house with the complainant girl's blanket wrapped around him.  The boys told the applicant to get out.  He told them to shut up and punched the boy complainant on the left cheek, causing him to stumble backwards.  His cheek was later found to be bruised. 
The two boys got their mother, who came back with a neighbour and the neighbour succeeded, after a scuffle, in putting the applicant out of the house.  The applicant was naked at this stage and he tried to re-enter to get his clothes, by throwing a bicycle at the front door.  He then came back with a bull bar and tried to ram it through the front door and the glass sliding door, screaming, "I'm going to fucking kill you."  The police came at this stage and tried to detain the applicant.  He was very aggressive and swung his arms about wildly, striking a police officer.  They wrestled him to the ground, where he continued to resist and a police officer's watch was damaged.  He was most unco-operative, and said he could not see a problem with anything that he had done.  He was arrested and said he would get bail and then take off, as he was not going to be hanging about. 

The applicant's counsel told the Judge at sentence the applicant had a very difficult upbringing and that he had been in solid employment for most of his life.  Counsel said that in 1998 the applicant's wife left him and this caused him to start drinking too much; also his step-father died.  At this stage, the applicant is said to have met the complainant mother; he went out with her for some short period of time and they had been in a relationship.  He had a very affectionate relationship, counsel said, with the girl complainant, who was not being properly looked after by her mother. 

An important basis of the submissions of the sentencing Judge was the applicant was intoxicated.  The usual submission was made:  it was not a mitigating factor.  But if it was not thought to be such a factor, it is difficult to see the point of laying so much emphasis upon it.  The sentencing Judge imposed a sentence for the indecent dealing offence which his Honour regarded as one for the overall criminality, as I have mentioned. 

The most significant factors in the applicant's favour are that he lacked a serious criminal record; that although his treatment of the 7-year-old girl was most reprehensible, he did not interfere with her in any of the ways which are generally found in cases of this sort; and that he pleaded guilty.  It was also submitted below that the applicant is remorseful, but his conduct immediately after the events suggests his remorse was somewhat late in coming. 

Looking at the matter broadly, there is the assault on the girl, which is said to be towards the lower end of the scale of seriousness, a cowardly attack on the young boy who was attempting to get rid of the applicant, the attempts to break down the door and the resistance to the police.

The cases are I think clear that ordinarily showing drunkenness does not lessen the sentence; this seems to me to fall within the ordinary category of cases.  Of course, some of the worst cases of violence we get are associated with drunkenness.  It would be a mistake, I think, to let the idea get abroad that those who can show that when they became violent they were drunk will be treated benignly. 

Despite Mr Leask's (if I may say so) helpful submissions, my position remains much the same as it was when I first read this record.  Although the sentence seems to me to be high, and certainly one towards the top of the range, it is difficult to reach the conclusion that the Judge went beyond what a proper exercise of his Honour's discretion would dictate.  That is, my opinion is that the case is a somewhat marginal one but in the whole of the circumstances, I cannot be persuaded that the Court should lower the sentence imposed upon the applicant and I would refuse the application.

McPHERSON JA:  Yes, I agree.

MOYNIHAN J:  So do I.

PINCUS JA:  The application is refused.

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