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[2001] QCA 40
General information, not legal advice.
Court of Appeal (Qld)
2001-02-15
Davies J, Jersey CJ, Mullins J
Original judgment source is linked above.
The applicant is 31 years of age. He was born on 22 May 1969. He has a minor criminal history of dishonesty offences in 1986 and 1987, none of which were of sufficient seriousness to warrant a sentence of imprisonment. On each occasion he was fined. These are only of minor relevance to the appropriateness of the sentence which should have been imposed here.
There can be no doubt that an offence of this kind involving, as it did, simulated sexual intercourse to the point of ejaculation by an adult on a 13-year-old girl in whose care she was, was a serious one. Nevertheless, it was submitted by Mr Moynihan for the applicant that it was towards the lower end of seriousness of offences of this kind; that is, I take him to mean, involving an adult and a young child in his care.
There is substance in his submissions in the sense that there was no gratuitous violence or threat of violence, either before or afterwards, to ensure silence. There was no actual penetration and there was only one single act. It is also true that substantial credit should be given in imposing the sentence for the applicant's early cooperation and plea of guilty, thereby saving time and expense and, more importantly, saving the child the trauma and anxiety of giving evidence.
A considerable number of authorities were given to this Court by both sides. There are, unfortunately, a very large number of comparable authorities. It is, however, difficult to derive a great deal of help from such of those as are Attorney's appeals. As has been said on many occasions, there are factors relevant to Attorney's appeals which are not relevant to appeals by offenders, particularly where the appeal is against a non-custodial sentence and the respondent has been released into the community and allowed to pursue his normal life and occupation.
Mr Moynihan submitted that the learned sentencing Judge erred in not imposing a wholly suspended sentence. He pointed to the factors to which I have referred. However, in my opinion, the acts which were performed in this case, that is the offence as a whole, were of sufficient seriousness to justify a period of actual custody.
Those cases which involve appeals by offenders - Denboon
CA No 211 of 1993; Kelk CA No 161 of 1994; and Pham
CA No 435 of 1995 - show that, in my opinion, the sentence imposed here was a high one, but not when taken as a whole, in my opinion, outside the appropriate range. Accordingly, as I do not think his Honour erred in principle or that the sentence was outside the appropriate range, I would refuse the application.
R
O [2001] QCA 40