The Queen v S - [1996] QCA 409

[1996] QCA 409

COURT OF APPEAL

FITZGERALD P
DAVIES JA
MACKENZIE J

CA No 389 of 1996

THE QUEEN

S Respondent

ATTORNEY-GENERAL OF QUEENSLAND Applicant

BRISBANE

DATE 07/10/96

JUDGMENT

THE PRESIDENT: The Attorney-General has applied for an extension of time within which to appeal against sentences imposed upon the respondent, S, in the District Court at Bundaberg on 30 July 1996. On 23 July 1996, the respondent had been convicted, after pleading guilty, of eight offences of unlawful carnal knowledge of a girl under the age of 16 years, between 10 and 25 May 1996. As is apparent from the short period which elapsed between the offences and the respondent's conviction and sentencing, he cooperated fully at all times.

The girl was aged fourteen and a half years when the offences occurred. The respondent was a friend of the girl's mother and an infrequent visitor to their home prior to May 1996. The respondent and the girl first met in April 1996. Because he has suffered a back injury, the respondent moved into the home of the girl and her mother on 8 May 1996. The girl's mother worked irregular hours, so that the girl and the respondent were alone in the home at various times. The respondent first made improper advances to the girl almost immediately after he had moved into her home and they first had sexual intercourse on 10 May 1996.

There were eight occasions of intercourse each initiated by the respondent, terminating on 25 May when the respondent moved out of the house where the girl and her mother lived. The girl was a willing participant, although according to the Attorney-General's contention, she was on at least some occasions, unenthusiastic and now feels taken advantage of and has suffered emotionally.

The respondent was born on 27 December 1962 and aged 33 years at all material times. He has no prior convictions and a reasonable work record.

The respondent was sentenced to imprisonment for six months in respect of each offence, the sentences to be served concurrently, and it was recommended that he be considered eligible for parole after he had been imprisoned for six weeks.

The sentencing Judge said that the offences should be seen as the seduction of a young girl by a much older and mature person, but referred to the wide spectrum of seriousness - and corresponding punishment - of offences of unlawful carnal knowledge. Various penalties which might apply at various points along the continuum of seriousness, were identified by the sentencing Judge.

According to the Attorney-General, the sentence was manifestly inadequate, failed to reflect the general gravity of the offences generally and in this particular case, failed sufficiently or at all to take into account general deterrence, and gave too much weight to mitigating factors. It was submitted that the appropriate range was 18 months to four years, which is a surprisingly broad range, and that the appropriate sentence would have been imprisonment for two and a half years.

A…

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 S

Details

AGLC: The Queen v S [1996] QCA 409
Case: [1996] QCA 409
Decision Date: 7 October 1996

CaseChat Overview and Summary

The Court of Appeal in Brisbane heard an application from the Attorney-General for an extension of time to appeal against the sentences imposed on S by the District Court at Bundaberg. S was convicted of eight counts of unlawful carnal knowledge of a girl under 16 years of age, who was aged fourteen and a half at the time of the offences. The respondent cooperated fully with the authorities throughout the proceedings. The Court of Appeal considered whether the sentences imposed were manifestly inadequate, failed to reflect the general gravity of the offences, and whether the sentencing judge had given too much weight to mitigating factors.

The Court of Appeal examined the principle that an appeal against sentence by the Attorney-General requires a showing that the sentencing judge erred in principle, either because an error was discernible or demonstrated by manifest inadequacy or excessiveness of sentence. The Court also considered the failure of the Attorney-General to proceed in time, which would disincline the Court to interfere if the error by the sentencing judge was not sufficiently clearly established. The Court noted that while the girl was a willing participant, she was exploited, and the worst feature of the case was that the respondent took advantage of the situation as soon as he was left alone with the girl. The Court also considered that the offences all took place within a short period of time and that the respondent was a first offender.

The Court of Appeal was not persuaded that an extension of time should be granted and refused the application. The Court noted that the sentences imposed were lenient, but it was possible to think that the respondent was given the benefit of his personal factors, including his early plea and extreme cooperation, with the matter proceeding on an ex-officio indictment, both in relation to the head sentence and in relation to the recommendation for early release on parole. However, the Court was informed by the respondent's counsel, without objection from the prosecution, that the respondent remained in prison at the time of the hearing, and the early recommendation for parole had not been a substantial benefit to him.

The order of the Court was that the application for an extension of time was refused.

Orders