R v KJB [2002] QCA 448

ORDER: Application dismissed

CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – PRACTICE AND PROCEDURE – where applicant convicted of maintaining a sexual relationship with a child with a circumstance of aggravation – where applicant sentenced to eight years imprisonment with a recommendation for parole after three years – whether sentence imposed was manifestly excessive / Criminal Code Act 1899 (Qld) , s 229B / R v B [1997] QCA 213; CA No 58 of 1997, 18 June 1997, considered / R v F [1996] QCA 490; CA No 418 of 1996, 6 December 1996, considered / R v J [1992] QCA 425; CA No 264 of 1992, 4 December 1992, considered

COUNSEL: K M McGinness for the applicant / M J Copely for the respondent

SOLICITORS: Legal Aid Queensland for the applicant / Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: I will ask Justice Cullinane to give the first judgment.

CULLINANE J: The applicant seeks leave to appeal against a sentence of imprisonment of eight years with a recommendation that he be eligible to be considered for parole after three years imposed on him following his plea of guilty by the District Court on the 7th of May 2002, for the offence of maintaining an unlawful relationship of a sexual nature with a circumstance of aggravation, namely rape.

The offence was committed over a period of almost three years from the beginning of 1999 to November 2001. The complainant was born on the 2nd of May 1986 and was 12 when the unlawful relationship commenced. The applicant and the complainant's mother had married in 1998 after having lived together since 1995.

The relationship commenced shortly before the complainant's thirteenth birthday. The applicant's conduct towards the complainant included touching and kissing her breasts, performing oral sex upon her on one occasion, and once or twice penetrating her vagina with his fingers. In the course of the relationship the complainant was raped by the applicant on at least two occasions.

Some parts of the complainant's statement suggests that this may have occurred on quite a number of occasions, but the learned sentencing Judge proceeded upon the basis that he raped the applicant at least twice. The applicant's conduct occurred whilst the complainant's mother was either elsewhere in the house or asleep in bed.

The police came to speak to the applicant as a result of the complainant telling a school friend what had been happening. Initially the applicant admitted only to the fondling of the complainant's breasts, suggesting that that had been accidental. However, on the following day he telephoned the police and informed them that everything the complainant had said was true, and in a subsequent record of interview he freely admitted his guilt.

The applicant was born on the 20th of October 1967. He has a minor criminal history, which does not include any offences of a sexual nature. In his brief sentencing remarks the learned sentencing Judge referred to the breach of paternal duty and the betrayal of trust involved in the commission of the offence, and the fact that the applicant engaged in such behaviour over a period of almost three years.

It is clear that the applicant was remorseful of his conduct and after initially denying the allegations cooperated with the police in the interview which he had with them. These matters and the plea of guilty were referred to by the learned sentencing Judge at the time of sentencing.

It is said on behalf of the applicant that the sentence is out of line with sentences imposed in offences of this kind, and fails to adequately reflect the plea of guilty and the applicant's remorse and his good work history.

It is important to bear in mind when considering sentences imposed in other cases that section 229B of the Criminal Code was amended in July 1997 to provide for a maximum penalty of 14 years' imprisonment for the offence of maintaining an unlawful relationship of a sexual nature with a child under the prescribed age. It had previously provided for a maximum of seven years' imprisonment.

At all times the offence to which the applicant pleaded guilty - that is, the offence of maintaining an unlawful relationship of a sexual nature under the prescribed age with a Circumstance of aggravation of the kind we are concerned with here - attracted a maximum penalty of life imprisonment. Rape is of course punishable by imprisonment for life.

Some of the cases to which we have been referred refer to a range of five to eight years - see Re J, Court of Appeal 264 of 1992, 9th of December 1992. We have also been referred to cases such as B, Court of Appeal 58 of 1997, 18th of June 1997, unreported, and F, Court of Appeal 418 of 1996, 6th of December 1996, unreported. In my view those cases support the contention of the respondent that the sentence imposed in this case, whilst a substantial one and towards perhaps the top of the range, is within it.

The conduct of the applicant in the present case was very serious, the impact upon the complainant has also been serious, and the behaviour of the applicant occurred over some three years and involved a serious breach of trust. The applicant received the benefit of a recommendation that he be eligible for early release.

In my view a consideration of these cases and the circumstances generally lead to the conclusion that the sentence imposed was not manifestly excessive. I would refuse the application.

McPHERSON JA: I agree.

HOLMES J: I agree.

McPHERSON JA: The order is that the application is dismissed.