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  • Unreported Judgment

R v D

 

[2002] QCA 115

COURT OF APPEAL

McMURDO P

WILLIAMS JA

MUIR J

CA No 368 of 2001

THE QUEEN

v.

D(Applicant)

BRISBANE

DATE 22/03/2002

JUDGMENT

THE PRESIDENT:  Justice Muir will deliver his reasons first.

MUIR J:  The applicant applies for an extension of time within which to appeal against sentences imposed in the District Court in Kingaroy on 16 October 2001.  On that day the applicant was convicted on pleas of guilty of 19 charges of exposing a child under 16 to an indecent act, three charges of unlawful carnal knowledge of a child under 16, one charge of attempting to have unlawful carnal knowledge of a child under 16, 13 charges of permitting himself to be indecently dealt with by a child under 16 and eight charges of procuring a child under 16 to commit an indecent act.

He was sentenced to imprisonment for seven years on each of the two unlawful carnal knowledge counts, imprisonment for four years on another such count, imprisonment for three and a half years on a count of attempted unlawful carnal knowledge, imprisonment for three years on each of the indecent dealing charges and the procuration charges and a term of two years, for the charges of exposing a child under 16 years to an indecent act.  All sentences were ordered to be served concurrently and there was a recommendation for eligibility for release on parole after three years.

Five of the offences were committed in 1997 and the balance in 1999.  The applicant is now 54 years of age.  He has some minor prior convictions, none for sexual offences and he had not previously been sentenced to a term of imprisonment.  At the time of the offences he was an attendant in an aged people's home.  The learned sentencing Judge remarked that he had grown up in circumstances of disadvantage.

The offences concerned seven complainants, aged between 11 and 15 years of age.  The complainants in the unlawful carnal knowledge and attempted unlawful carnal knowledge matters, were aged between 11 or 12 and 13 years of age.  All charges concerned the applicant obtaining sexual favours from children in return for money, cigarettes and/or alcohol.

The sexual acts, apart from the three occasions on which unlawful carnal knowledge was charged, involved masturbation or fellatio or a combination of the two.  In some cases, the complainants and other children taking part in the sexual acts with the applicant who were observing them, were intoxicated by consuming alcohol supplied by the applicant.

In most if not all cases, more than one child was present during the offending sexual behaviour.  The material placed before the learned sentencing Judge revealed that the sexual contact often took place at the applicant's request and sometimes only after his persistent urging.

The offences came to light after one of the complainants provided information to the police.  The applicant pleaded guilty on an ex officio indictment, but declined to be interviewed by police. 

The application was filed and served on 24 December 2000.  It was out of time, but the delay has been satisfactorily explained. 

The grounds on which the applicant would seek to rely on the hearing of an appeal, are firstly, that he is not the biological grandfather of one of the victims as was mentioned in the sentencing remarks.

He also relies on the following three alleged acts of non- disclosure:  (a) the fact that the offences took place at an old persons' home and the complainants engaged in flagrant "initiating" behaviour; (b) the offensive behaviour of the complainants, their demands for money and threats of blackmail; and (c) the regular preying on elderly persons by the complainants.

There is no substance in the first of these complaints.  The matter was raised before the sentencing Judge, who acknowledged that he could not take it into account and expressly said that he had not taken it into account.  It is difficult to see how it would be a mitigating circumstance, even if all of the subject conduct had been initiated by the complainants.

It is implicit in the grounds relied on by the applicant, that he had obtained sexual services from minors for payment.  It is true that his conduct was not exacerbated by the use of force, but there is no suggestion that the sentencing Judge acted on the basis that it was.  There were aspects of the applicant's conduct, however, which elevated its seriousness.  The children concerned were quite young.  In some cases they were plied with alcohol.  In others, their initial reluctance was overcome by inducements or persistent requests.  In all cases, the conduct was corrupting, sordid and degrading.

The applicant was sentenced, properly, on the basis that one purpose of the subject provisions of the Criminal Code, as was pointed out in the course of submissions by the President and Mr Justice Williams, is to protect children from exploitation and abuse by adults, irrespective of whether their conduct can be legally categorised as consensual.

If the children concerned had been supplying sexual favours to others as the applicant contends, that would not have served to lessen the seriousness of the applicant's own conduct either.  Although the sentences of seven years for the unlawful carnal knowledge offences may be thought to be reasonably high, having regard to the age of the victims, the scale of the offences and the other matters I have mentioned, they can hardly be said to be manifestly excessive.

The learned trial Judge, who gave the matter careful consideration, observed that were it not for a number of mitigating circumstances, a higher sentence would have been imposed.  I note that the maximum penalty for the unlawful carnal knowledge charges is 14 years.  Although, as I have said, the applicant has given sufficient explanation for the delay in seeking leave to appeal, any appeal would have no prospects of success and I would dismiss the application.

THE PRESIDENT:  I agree.

WILLIAMS JA:  I agree.

THE PRESIDENT:  That is the order of the Court.  The application is dismissed.

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Editorial Notes

  • Published Case Name:

    R v D

  • Shortened Case Name:

    R v D

  • MNC:

    [2002] QCA 115

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Williams JA, Muir J

  • Date:

    22 Mar 2002

Litigation History

No Litigation History

Appeal Status

No Status