R v K
[2003] QCA 521
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- Unreported Judgment
- Appeal Determined (QCA)
- R v K[2003] QCA 521
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R v K[2003] QCA 521
R v K[2003] QCA 521
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Sentence Application |
ORIGINATING COURT: | |
DELIVERED EX | 20 November 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 November 2003 |
JUDGES: | McMurdo P, Davies JA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Application for leave to appeal against sentence dismissed |
CATCHWORDS: | CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – applicant convicted on own plea of four counts of indecent dealing with children under 16 – where sentenced to 12 months imprisonment and three years probation with condition that he participate in program or treatment appropriate for sexual offenders – where conviction recorded – where applicant showed remorse – where early plea of guilty – where applicant seeks leave to appeal against sentence – whether sentence manifestly excessive |
COUNSEL: | T Williamson for the applicant C W Heaton for the respondent |
SOLICITORS: | Bartels Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent |
THE PRESIDENT: Justice Wilson will deliver her reasons first.
WILSON J: The applicant seeks leave to appeal against sentence. He was convicted of four counts of indecent dealing with children under 16 between December 2000 and November 2001. The children were his stepchildren. Three of the offences related to C who was aged 12 and 13 when the offences occurred and the fourth related to her sister J who was aged 14.
The offences all involved inappropriate touching. Two of them also involved digital penetration of the complainant's vagina.
The applicant pleaded guilty to an ex officio indictment. On each count a conviction was recorded. He was sentenced to 12 months imprisonment with three years probation, with the added condition that he participate in any program or treatment appropriate for sexual offenders.
The application for leave to appeal against sentence was brought on the basis that the sentence was excessive.
The applicant was born on 10 December 1955 so that he was aged 47 at sentence. His only other conviction is for breach of a domestic violence order which was committed in February 2002, that is, after these offences.
These offences were reported to police on 26 November 2001. Initially the applicant denied them. Some days later he contacted police and participated in a record of interview. He was tearful and distressed; he said the girls were not liars. While he could recall only two of the incidents, he was prepared to accept the other incidents had occurred if the complainant said so. He denied digital penetration, but then said he accepted what the complainant said and he was sentenced on the basis that there had been such penetration.
As I say, he pleaded guilty, thereby saving the complainants the trauma of giving evidence and being cross-examined. His conduct is indicative of genuine remorse.
By December 2001 the applicant had indicated he would plead guilty to an ex officio indictment. The sentencing did not occur until August 2003. The delay in bringing the matter to a conclusion has not been fully explained, but it seems not to have been attributable to the applicant. The result was that he had the charges hanging over his head for almost two years.
The applicant is a tiler by occupation. Since the offences he has separated from the complainant's mother. He has had no direct contact with the complainants, but he has paid $5,000 for a car for one of them. He has had contact with his estranged wife; there is a child of their union for whom he pays maintenance. There is some chance of reconciliation with the mother.
Favourable references were put before the sentencing Judge, as well as the report of a psychologist who interviewed the applicant in late November 2001 and late January 2002. At the time of the interview he was suffering depression and severe anxiety and there was some evidence of post traumatic stress disorder having been suffered before the offences in consequence of an injury sustained in an accident. The psychologist assessed him as being a low risk of re-offending.
These offences involved serious betrayal of trust. They took place on four occasions, involved two complainants and two of them involved penetration. A period of actual imprisonment was clearly called for. In my view, the applicable range of imprisonment was 12 months to two years. The sentencing Judge took account of the mitigating factors and imposed a sentence of 12 months and three years probation.
Indeed, in his oral submissions this morning, counsel for the applicant conceded that the sentence was within range. In the circumstances the application should be dismissed.
THE PRESIDENT: I agree.
DAVIES JA: I agree.
THE PRESIDENT: The order is the application is dismissed.