The Queen v WV - [1997] QCA 431

[1997] QCA 431

COURT OF APPEAL
DAVIES JA
de JERSEY J

MUIR J

CA No 348 of 1997
THE QUEEN
v.

Applicant

BRISBANE
..DATE 30/10/97
301097 T06/IK29 M/T COA246/97
de JERSEY J: The applicant pleaded guilty to the charge of
maintaining a sexual relationship with a child under 16 years
with a circumstance of aggravation, which was having unlawful
carnal knowledge. He pleaded guilty on an ex officio
indictment. The relevant conduct continued over approximately
two months.

He was sentenced to two and a half years imprisonment with a recommendation that parole be considered after he has served nine months. At the time the applicant was 23 years old and the complainant girl 14 years old. She lived with her mother. Her mother commenced a relationship with a man by the name of WV, not related to the applicant, who sometime earlier had, however, been in a relationship with the applicant's mother.

In early 1996 the applicant, though living in Victoria, kept in telephone contact with Mr WV, who was then living with the complainant and her mother at Maroochydore. Through this telephone contact the applicant came to know the complainant and developed a close relationship with her.

In the course of this contact the complainant told the applicant that she was 14 years old. On 8 June last year the applicant moved to Maroochydore and moved in with the complainant, her mother and Mr WV. He immediately moved into the complainant's bedroom and consensual sexual relations commenced, apparently with the approval of the complainant's mother and Mr WV, who, in fact, supplied the applicant and the complainant with condoms. Over the next six weeks or so they regularly had sexual intercourse. On one occasion a condom broke and the complainant 301097 T06/IK29 M/T COA246/97

fell pregnant, and that led to an argument between the applicant and the complainant on the one hand and on the other, the complainant's mother.

The applicant and the complainant left the house. The police were notified. When interviewed by the police the applicant admitted the offence saying that he did not think that the girl's age mattered so long as she was a willing party. He commented that she was old enough to make up her own mind whether she wanted it or not.

As a result of the pregnancy the complainant left school. By
the time of sentence the child had been born and she was caring
for it in Toowoomba. The complainant was then only
15 years old and was, not surprisingly, having difficulty
supporting herself financially. She felt worthless and had lost
friends as a result of the pregnancy.

The applicant is of borderline intellect. In 1992 he was declared eligible for services under the Intellectually Disabled Persons Services Act in Victoria because of intellectual disability. He has previously been convicted and has been given the benefit of community-based orders.

The material before the sentencing Judge included a report from a clinical psychologist which stated that he was of borderline…

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 WV

Details

AGLC: The Queen v WV [1997] QCA 431
Case: [1997] QCA 431
Decision Date: 30/10/1997

CaseChat Overview and Summary

The appeal was heard by a panel of three judges from the Queensland Court of Appeal. The applicant, WV, appealed against the sentence imposed on him for maintaining a sexual relationship with a child under 16 years of age, with the aggravating circumstance of having unlawful carnal knowledge. The applicant had pleaded guilty to the charge and was sentenced to two and a half years imprisonment, with a recommendation that parole be considered after serving nine months. The court had to decide whether the sentence was appropriate given the circumstances of the case.

The court considered the arguments presented by both parties. The applicant's counsel argued that the relationship was not exploitative and that the applicant's intellectual disability meant he could relate well to the complainant, who was willing to have a sexual relationship with him. The respondent's counsel referred to previous cases that supported the view that the sentence imposed was within range. The court also noted that the maximum penalty for the offence was 14 years imprisonment, and that the sentence imposed was within that range.

The court found that there was no ground for interfering with the sentence imposed on the applicant. The judges agreed that the sentence was appropriate given the circumstances of the case. The appeal was therefore refused. The court also noted that the complainant's mother and Mr WV, who had supplied the applicant and the complainant with condoms, should be charged as likely parties under section 7 of the Criminal Code. The respondent's counsel was asked to ensure that inquiries were made about this.

Orders