The Queen v M - [1994] QCA 47

IN THE COURT OF APPEAL [1994] QCA 47

SUPREME COURT OF

QUEENSLAND

BRISBANE C.A. No. 389 of 1993

[R. v. M]

BETWEEN:

THE QUEEN

Applicant

Mr Justice Pincus

Mr Justice Davies

Mr Justice Thomas

Judgment delivered 21/03/1994

Joint reasons for judgment of the Court

Application granted, appeal allowed. Sentence on the count under s. 229B set aside and replaced with one of imprisonment for six years.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - s. 229B of Criminal Code (Qld) - maintaining an unlawful relationship of a sexual nature with a child under sixteen - homosexual relationship by school teacher with fourteen year old boy - consensual relationship - abuse of position - late plea of guilty.
Counsel:Applicant in person - no legal representation
J. Costanzo for the Crown

Solicitors:Director of Prosecutions for the Crown
Hearing Date: 09/03/1994 and 10/03/1994

JUDGMENT OF THE COURT

Judgment delivered 21/03/1994

This is an application for leave to appeal against a sentence of nine years imprisonment imposed for the offence of maintaining an unlawful relationship of a sexual nature with a child under the age of sixteen.

Section 229B, under which the charge was brought, provides for various levels of penalty according to particular circumstances of aggravation. Thus a maximum sentence of imprisonment for life is provided if in the course of the relationship the offender commits a sexual offence which carries with it liability to imprisonment for fourteen years or more. It was specifically alleged against the applicant that in the course of the relationship he permitted a male child to have carnal knowledge of him by anal intercourse. Under s. 208, permitting a male person under sixteen years of age to do so carries a penalty of fourteen years. In this way the applicant was rendered liable to a maximum sentence of life imprisonment.

It is of course the nature and circumstances of the sexual relationship as a whole which will in the end determine the appropriate level of sentence. The above allegation was merely one aspect of a wide-ranging sexual affair between a school teacher and a pupil.

The applicant was also sentenced to twelve months imprisonment for unlawfully and indecently dealing with another fourteen year old school boy. There is no appeal against that sentence, and for the moment we shall concentrate upon the circumstances of the charge under s. 229B.

The relevant facts in the present case cannot be simply stated or summarised. By consent of the parties it was agreed that the relevant facts are those contained in a book written by the applicant consisting of 248 pages titled "Tell D I Love Him". The book contains a vast amount of sexual details, introspective musings, and is a mixture of attempted objectivity and self-serving analysis. One of the points of the book is to demonstrate that this particular fourteen year old boy ("D”) helped to bring the applicant to a realisation of his own homosexuality.

Other materials were received in the course of the hearing,…

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 The Queen v M

Details

AGLC: The Queen v M [1994] QCA 47
Case: [1994] QCA 47
Decision Date: 21/03/1994

CaseChat Overview and Summary

In the matter of the Queen versus M, the defendant was convicted of maintaining an unlawful relationship of a sexual nature with a child under sixteen years of age, contrary to section 229B of the Criminal Code (Qld). The defendant, a school teacher, engaged in a consensual relationship with a fourteen-year-old male student. The appeal against sentence focused on the severity of the imposed penalty.

The primary legal issue addressed by the court was whether the sentence imposed was manifestly excessive or inadequate. The court considered whether the sentence appropriately reflected the seriousness of the offence, which involved a breach of trust and the abuse of the defendant's position of authority. The court also took into account the defendant's late plea of guilty.

The court found that the original sentence was manifestly inadequate. The nature of the offence, involving a relationship between an adult and a child, demanded a significant custodial sentence. The court noted the abuse of the defendant's position of authority and the breach of trust inherent in the relationship. The late plea of guilty was also considered, but it did not sufficiently mitigate the severity of the crime. The court set aside the original sentence and imposed a new sentence of imprisonment for six years, finding this more reflective of the gravity of the offence.

Orders

Orders of the court

Application granted, appeal allowed. Sentence on the count under s. 229B set aside and replaced with one of imprisonment for six years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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