Gympie rapist has five of 11 convictions thrown out by High Court

A 31-year-old Qld man convicted of raping his sister 11 times when they were children has appealed against those convictions to the High Court.

The High Court has thrown out five of 11 rape convictions against a Gympie man amid questions over whether he could be held criminally responsible due to his age at the time of those counts.

A Gympie man found guilty of raping his sister 11 times has been re-sentenced after the High Court threw out almost half the original convictions.

The 31-year-old, who cannot be named to protect the identity of his victim, was originally found guilty of 11 counts of rape in February 2021 following a three-day trial at Gympie District Court.

In March 2023, the country’s highest court acquitted him of five of the rapes on appeal.

The published unanimous High Court judgment says this was due to the law around criminal responsibility for alleged offences committed by a child aged between 10 and 14.

Under Queensland law a child in this age bracket is not criminally responsible for an action, unless it is proved that at the time of the offence they had capacity to know not to do it.

The 31-year-old man, who cannot legally be named, was originally found guilty of raping his sister 11 times by the Gympie District Court in 2021. He was acquitted on five of those convictions in 2023 following an appeal to the High Court, and re-sentenced in Gympie District Court.

The prosecution’s case did not specifically outline the man’s age at the time of each alleged offence, and the charges were not presented during the trial in chronological order.

This left questions as to exactly how old the man was at the time of those five counts.

Given this, the court found it was necessary for the prosecution to draw an inference the man had the capacity to understand his actions were wrong for each count which may have occurred while he was between these ages.

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The prosecution tendered “insufficient evidence” to prove this beyond reasonable doubt, the court found.

This did not apply to the remaining six crimes which occurred when he was between 14 and 17 years old, and his victim aged between eight and 12.

These included raping her on separate occasions with a vibrating pen, orally, and physically, and “notwithstanding obvious resistance” from the victim and “complaints of pain”.

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The High Court found the prosecution did not outline the man’s specific age at the time of several of the offences he was convicted on, and was unable to prove beyond reasonable doubt the man had the capacity to understand his actions were wrong when allegedly committing the offences when he was aged between 10 and 14.

He became “more violent” to overcome her resistance towards the end of the abusive period, Justice Boddice said in his published District Court re-sentencing.

It only stopped when she said if he touched her again she would tell their parents.

Justice Boddice said the re-sentencing needed to reflect the seriousness of these crimes and its “devastating consequences” on his sister.

However, the sentence needed to account for his own youthfulness and lack of criminal history at the time, including his visual impairments and learning difficulties.

Justice Boddice said the man had tried to undertake sexual offender courses but was unable to until his convictions and appeals were finalised.

He has now served 838 days in custody, the majority in protection in his cell for “essentially” 24 hours due to safety concerns.

He was sentenced to five years jail, with a parole eligibility date starting at May 31, 2023.