R v TWB [2001] QCA 111

Court of Appeal (Qld)|2001-03-22|Before: Pherson JA, Williams JA, Byrne J

The applicant was born in November 1960. As a child he had been a victim of sexual abuse at the hands of his brother. He had a prior criminal history for traffic and other offences including stealing, but there were no prior convictions for offences of a sexual nature.

It will be apparent from what I have said that both complainants were young, that the offences involved a gross breach of trust, that they evinced an extended course of sexual misconduct, and that they involved quite bad examples of indecent dealing persisted in, including simulated sodomy to ejaculation and oral sex.

There were two significant aspects of mitigation. One concerned co-operation with the authorities: the other that the offences had ceased before investigation - in respect of the son when the boy finally said, no; for the stepson when the applicant voluntarily desisted.

As to the co-operation, it was extensive. It began in an interview with police during the course of which the applicant made admissions after a complaint had been made by his son to the boy's mother. The stepson had been most reluctant to discuss the offences. During the interview, however, the applicant admitted to them with the step child; and as I have said, these admissions constitute the entire case against him in respect of that boy.

The applicant also pleaded guilty at the earliest opportunity by way of ex officio indictment. The plea saved significant public resources and, importantly, spared the two boys the ordeal of a trial. The plea also appears to have evinced some measure of remorse.

As the applicant's counsel submitted, the consequences of the plea should therefore have been reflected in an appreciable discount in the appropriate sentence. The applicant's case is that the recommendation for parole after three years, which is only six months short of the automatic consideration point, fails to make sufficient allowance for these matters of mitigation.

One way in which these and other mitigating factors fell to be reflected was by a combination of moderation in the head sentence and a recommendation for earlier than usual parole.

And the Judge appears to have fashioned such a sentence in this case.

In view of the nature and extent of the applicant's misconduct, and having regard to other sentences in not dissimilar cases (see the review in The Queen v. Graham Young, CA No 23 of 1997, 18 April 1997), in my view it cannot be said that the sentences are beyond the range of a sound sentencing discretion.

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

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