R v Richardson[2000] QCA 166

COURT OF APPEAL

McMURDO P

McPHERSON J

DOUGLAS J

CA No 18 of 2000

THE QUEEN

v.

CLIVE JAMES RICHARDSON

BRISBANE

DATE 08/05/2000

JUDGMENT

DOUGLAS J:  The appellant was convicted at the District Court in Brisbane on 16 November 1999 of the offence of indecent dealing with a child under the age of 16 years who was then under his care.

He was sentenced to 18 months' imprisonment suspended after five months with an operational period of three years.

The child in question was in fact 15 years at the time.  She had been employed by the appellant's wife to act as a live-in housekeeper and nanny.  She commenced work on 26 December 1998, the previous week, and left the house in the early hours of 31 December.  At 3 a.m. she knocked on the door of a neighbour and appeared to be agitated and upset.  She made this complaint to the neighbour;  "He had his hands all over me.  I asked him to leave and he did."  She then telephoned her stepfather and the police soon after.

She testified that the appellant had made some passes at her prior to the offence.  On the night in question she had gone to bed at about 11.30 where she read before falling asleep.  When she woke up she could see the appellant kneeling beside her bed.  He put his hand on her breast inside her shirt.  She rolled away but he pulled her back and persisted.  He then fondled her vagina and digitally penetrated her.  She eventually told him to leave which he did.

The complaint she made to her stepfather was, "He was in my room.  He was in my room, he was beside my bed."  When asked if he had raped her she said, "No."

The appellant and his wife both gave evidence.  He denied the offence claiming he was in bed from 8.30 p.m. until after 4.30 a.m.  He said he got up in the morning to clean up some dog mess in the living room and noticed that the complainant was not in her room.  He told his wife.

He also said that the complainant had acted previously in a provocative manner.  His wife claimed to have woken up at about 2 a.m. to 2.30.  She said the appellant was still snoring.  This was the time of the alleged offence.  She said it was she who noticed that the complainant had left. Her evidence was discredited.  She had criminal convictions for prostitution and dishonesty over a long period between 1984 and 1995.

The main complaint made with respect to the jury's verdict is that it is unsafe and unsatisfactory.  It is based upon a submission that her evidence was inconsistent.

It is true that there are some areas of minor inconsistency in her evidence.  However, these were pointed out to the jury by the learned trial judge and appropriate directions were given.  Furthermore, appropriate directions were given with respect to the early complaints she made both to the neighbour and to her stepfather.

In my view the verdict which the jury came to was one which was clearly open to them and should not be disturbed by this Court.

So far as sentence is concerned, the effect of the sentence was that he was to serve only five months' imprisonment of an 18 months term but with an operational period of three years.  In my opinion such a sentence is not out of kilter with sentences which have been approved by this Court in the past and it could not be said in any sense that it is manifestly excessive.

I would dismiss the appeal in respect of conviction and refuse leave to appeal in respect of the sentence.

McMURDO P:  I agree, both as to the appeal against conviction and the application for leave to appeal against sentence.  I would only add in respect of the application for leave to appeal against sentence that there were serious aspects to the offence.  The applicant had in his charge the complainant who was a 15 year old employed by him as a nanny.  He was a much older man.  The offence involved the penetration of the girl's vagina by his fingers.  The applicant showed no remorse.  He does not have the benefit of an early plea of guilty. 

A custodial sentence was required in those circumstances and, as Mr Justice Douglas has pointed out, the sentence was not outside the proper sentencing range.  See, for example, R. v. Denboon 211 of 1993 delivered 10/9/93.  I agree with the orders proposed.

McPHERSON J:  I agree with the reasons of Mr Justice Douglas.

McMURDO P:  The order is the appeal against conviction is dismissed.  The application for leave to appeal against sentence is refused.