R v Johnsone (a pseudonym)[2020] QCA 243

[2020] QCA 243

COURT OF APPEAL

SOFRONOFF P

FRASER JA

HENRY J

CA No 125 of 2020

DC No 327 of 2019

THE QUEEN

v

JOHNSONE (a pseudonym) Applicant

BRISBANE

MONDAY, 9 NOVEMBER 2020

JUDGMENT

SOFRONOFF P:  The applicant was charged with two counts of indecent treatment of a child under 16 who was under 12 and who was a lineal descendant.  In fact, she was his daughter who at the time of the offences was in respect of the first count aged between six and seven and in respect of the second count aged between eight and 10.

The first offence occurred on an occasion when the applicant was alone with his children in a house while his wife was working.  The complainant was lying down.  The applicant kissed her all over her body before performing oral sex upon her.  The second count related to a similar event a couple of years later.  The complainant was aged between eight and 10 years old.  Again, the applicant performed oral sex upon his daughter.

During the pretext call in 2018 after these matters were reported to police, the applicant explained that this was only once on the spur of the moment.  That, of course, was not true because it was twice.  He explained that it was not serious.  It was wrong but it was not serious.  That is also incorrect.

The learned sentencing judge, Judge Dearden, sentenced the applicant to a term of imprisonment for three years, setting a parole eligibility date after he had served one year.  The offences carry a maximum penalty of 20 years’ imprisonment.  The applicant seeks leave to appeal against the sentences on the ground that they are manifestly excessive.

In oral submissions this morning, the applicant made a number of points to support his application for leave.  First, he says that he was aware that some other offender whom he did not identify received much less.  That, of course, is beside the point.  The second, he submits the prison is inadequate for his health condition.  By that, he means that he will not receive health treatment in prison.  No evidence has been offered for this.  But in any event, it is a matter that the learned sentencing judge took into account expressly.  Thirdly, he says that while he was in prison, he allowed other people to live in his rented accommodation and they caused damage such that he has lost his bond.  That is beside the point.  Fourthly, he says that his son suffers from Asperger’s syndrome and needs his father’s presence in order to support him.  That was a matter that was raised at sentence, and his Honour took it into account.

The applicant also points to the mental suffering that he says he had to endure as a result of being charged.  That is a suffering that undoubtedly every offender experiences after charges such as these are laid.  He also points to his previous good character.  His Honour took that into account.  It might be mentioned that his Honour also took his guilty plea into account.  In those circumstances, the applicant has failed to raise any matter that would justify leave to appeal being granted against the exercise of his Honour’s sentencing discretion.  I would refuse leave to appeal.

FRASER JA:  I agree.

HENRY J:  I agree.

SOFRONOFF P:  The order of the Court is application for leave to appeal is refused.