R v H [2004] QCA 37

Court of Appeal (Qld)|2004-02-19|Before: McPherson, and Davies JJA and Mackenzie J, Separate reasons for judgment of each member, of the Court, each concurring as to the order made

DAVIES JA: This is an application for an extension of time within which to seek leave to appeal against a number of sentences which I will describe more fully.

The applicant was sentenced on 11 September 2003 and his application was filed on 29 October 2003, 17 days late. However he asserts that he completed a notice of appeal form on 9 October 2003 and asked the unit officer on that day for an appointment with Sentence Management. He was informed, he said, that Sentence Management was busy. He then handed the form to the unit officer on the morning of 10 October. It did not reach Sentence Management until 14 October by which date he was out of time.

If all of this is correct there is a reasonable explanation for the delay. However, even if this be accepted it is necessary to consider whether, if the application were granted, an application for leave to appeal against sentence would have reasonable prospects of success.

The effective sentence imposed on the applicant was one of 10 years imprisonment which carried with it automatically a declaration that the offences in respect of which that sentence was imposed were serious violent offences.

They were one of maintaining a sexual relationship with various circumstances of aggravation, one of unlawful carnal knowledge with circumstances of aggravation and three of incest. He was also sentenced to two years imprisonment for indecent treatment with circumstances of aggravation. The sentences were concurrent.

The offences occurred between the beginning of May 1997 and about 5 August 2002. During that period he was between 35 and 40 years of age and the complainant, who was his niece, was aged between nine and 14, having been born on 29 February 1988.

The offences committed by the applicant on his niece over this period were appalling. He was, during the whole of this period, the sole carer of the complainant and her brother, their mother having left the family home. He was a violent disciplinarian frequently beating her with an electric cord and kicking and elbowing her. It is unsurprising that his sexual interference with the complainant, which included many acts of intercourse, was either not resisted or not seriously resisted by the complainant.

The acts, including intercourse, occurred from the time she was nine. Intercourse occurred approximately once or twice a month until the offences came to an end about 60 months later. The complainant sometimes cried during these acts of intercourse but the applicant showed no mercy. He made threats to her about keeping silent.

The complainant eventually ran away to her grandmother's residence, made a complaint against the applicant and the matter was investigated. He initially denied the offences but ultimately pleaded guilty.

It is unsurprising that this prolonged episode of abuse has had a serious psychological effect on the complainant. She has apparently even attempted suicide.

The applicant has a rather old criminal history unrelated to these offences. The most serious previous offences appear to have been burglary and receiving which attracted only fines.

The extreme seriousness of these offences, even upon a plea of guilty, plainly justified a sentence of 10 years imprisonment. We were referred by the respondent's counsel to a recent decision of this Court in R v C ex parte; A-G (Qld) [2003] QCA 134 in which, on facts which it seems to me were less serious than this, this Court, on an Attorney's appeal, increased a sentence of nine years imprisonment with a recommendation for post-prison community based release after four years, to a sentence of 10 years with a declaration that the respondent was convicted of a serious violent offence. That decision, in my opinion, confirms the appropriateness of the sentence imposed here.

Accordingly, I do not think that if an extension of time were granted the applicant would have reasonable prospects of success in an application for leave to appeal against sentence. I would accordingly refuse the application.

McPHERSON JA: I agree. The unfortunate complainant in this case was the victim of years of sexual and physical tyranny at the hands of the applicant. The sentence was well within the limits of a proper judicial discretion. In my view the application to extend time should be refused.

MACKENZIE J: I agree with the orders proposed for the reasons given by my brothers.

McPHERSON JA: The application to extend the time for seeking leave to appeal against sentence is dismissed.

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