GF v R [2005] ACTCA 46

Court of Appeal (ACT)|2005-12-07|Before: Madgwick JJ, Crispin J

1. On 10 June 2005, the appellant was sentenced by Crispin J on two counts of incest in respect of his daughter who was 10 years and two months old at the time of the offence. The offences involved two separate acts which occurred on the one occasion. The appellant was sentenced on each count to three years and eight months imprisonment to be served concurrently and to date from the date of sentence. A non-parole period of 14 months was fixed. The appellant appeals those sentences on the ground that they were manifestly excessive in all the circumstances.

2. These offences took place when the appellant, who resides in Queensland, visited Canberra to see the complainant and his 11 year old son. The children's mother and the appellant had separated some nine years previously. The appellant arranged to stay with the children in a room at Olims Hotel having obtained their mother's agreement to this taking place. After taking the children out for the day, the children and the appellant had dinner with relatives of their mother at a restaurant near the hotel. The appellant had a significant amount to drink. After dinner, the appellant and the children returned to the appellant's room in the hotel. The children were to sleep in the double bed and the appellant's son went to sleep. The complainant had trouble getting to sleep. The appellant offered to pat her. He lifted her nightie up to her armpits and rubbed up and down her legs and on the inside of her thighs. He touched her vagina with his hands, removed her bed clothes, placed his finger inside her vagina and moved it inside her. He removed his finger, licked it and placed his finger back into her vagina again moving it. This conduct constituted the first count in the indictment. The appellant leant forward and kissed the complainant on her chest. He moved further down her body and began to lick her vagina inside and out. The complainant tried to close her legs but the appellant kept them apart with his hands. This conduct constituted the second count on the indictment. As a consequence of the incident, the complainant was distressed and began to cry but was reassured by the appellant telling her she was having a bad dream. A few days later the complainant told her mother what had happened and the police were eventually notified.

It is by now well documented that children who have been sexually abused may grow up to have significant psychological problems in later life as a result of that contact. In the case of incest, the trauma of sexual assault is compounded by the profound betrayal of trust that is involved in such conduct. Furthermore, when the act of incest involves a parent, the emotional trauma of the act itself may be further compounded by the subsequent destruction of the relationship.

4. It is to be noted that s 62 of the Crimes Act 1900 (ACT) ('Crimes Act') provides a graduated scale of penalties for such an offence. Section 62(1) of the Act provides for 20 years imprisonment where the victim is under the age of 10 years while s 62(2) provides imprisonment for 15 years where the victim is under the age of 16 years and s 62(3) provides imprisonment for 10 years where the victim is of or above the age of 16 years. It is clear that the ACT legislature takes a very serious view concerning the commission of sexual offences with respect to young persons. For example, s 56 of the Crimes Act, in the circumstances expressed in that provision, can result in a person who engages in a sexual act with a young person on three or more occasions, and who commits a further offence (if the offence is punishable by imprisonment of greater than 14 years) being sentenced to imprisonment for life. The provisions of s 55 of the Crimes Act provide that engaging in sexual intercourse with a person under the age of 10 years is punishable by imprisonment for 17 years and engaging in sexual intercourse with a person under the age of 16 years, imprisonment for 14 years. In such a case there is a requirement on an accused to show that the young person consented to the sexual intercourse and may be contrasted with the offence provided for by s 54 of the Crimes Act of sexual intercourse without consent which is punishable by imprisonment for the lesser period of 12 years. Those provisions give a clear indication of the seriousness with which the legislature regards sexual offences against young persons.

5. We would respectfully endorse what was said by Doyle CJ (with whom Prior and Nyland JJ agreed) in R v AJW (2001) 80 SASR 246 at [20]. His Honour had reflected upon the appropriate penalties in respect of children under 12 before saying:

The thrust of my remarks applies to other offences of sexual abuse involving young children. As I said in R v D [(1997) [1997] SASC 6350; 69 SASR 413], the sexual abuse of children by persons in a position of trust appears to be quite widespread. Persons charged with such offences appear before the courts quite regularly. The serious consequences that such offending has on the children involved, and the insidious effects on the social relationship between those responsible for children and people who deal with their children, are a reason for the courts to treat such offending very firmly. The courts must do what they can to show to parents, and those with parental responsibilities, that when their trust in others is abused, resulting in the sexual abuse of their children, the courts will do everything that they can to impose adequate punishment on the offenders.

(See also The Queen v Partridge [1998] FCA 596 (Federal Court of Australia, Gallop, Mathews and Madgwick JJ, unreported, 29 May 1998) and the cases there cited under the heading 'Community abhorrence of sexual abuse of children'.)

6. The appellant was a medical practitioner and was aged 46 at the time of this offending. Although he pleaded guilty to these offences and is to be given credit for that plea, he was also dealt with in the Brisbane District Court in relation to two counts of indecent dealing with another daughter from a different relationship which took place in early February 2004 and on 10 March 2004 when that daughter was 11 years old when count one occurred and one day past her twelfth birthday when count two occurred. On the occasion of each of those offences the appellant placed his hand inside the clothing of the complainant and rubbed the vaginal area without there being any digital penetration.

7. The appellant was dealt with for these offences on 8 February 2005 by Judge Howell in the Queensland District Court. In sentencing the appellant, the Judge took into account sexual interference by an adult male when the appellant was a child, the extensive medical and psychiatric material and its contribution particularly in combination with alcohol in contributing to the offences before the court at that time. As well, allowance was made for the fact that the appellant had no previous criminal convictions and a good work record in a professional field and being well spoken of in relation to personal service to the community. In the result, on each count he was sentenced to imprisonment for 12 months to be suspended after four months.

8. However, before Crispin J there were additional factors. The first was the commission of those offences upon which the appellant had been sentenced by the Queensland District Court. In addition, there were factors which were not canvassed in those proceedings. The appellant, as a medical practitioner, had twice been suspended from practising medicine for what he acknowledged as predatory behaviour in having sexual relations with his patients. He admitted before Crispin J six such relationships. These are matters which substantially detract from the allowance made in the Queensland District Court for the appellant's general good character. It is also a significant factor, apparently not stressed in the Queensland proceedings that, as a medical practitioner, he was in a position to understand the potentially devastating consequences of his behaviour on a victim but notwithstanding this, committed similar offences on another of his daughters. In that regard, this Court notes that he had at one stage been the Principal House Officer in Psychiatry at the Child and Family Therapy Unit, Royal Children's Hospital, and at Rosemount - Adult Psychiatric Unit, Royal Brisbane Hospital. The commission, therefore, of offences on another daughter is a major factor of aggravation in the assessment of the degree of criminality involved in the later offences.

9. The error that Mr Callaghan, who appeared as counsel for the appellant, sought to identify as leading to, what was said to be, a manifestly excessive sentence lay in having insufficient regard to the mitigating effect of the appellant's psychological problems. They were said to render the appellant less than capable of fully understanding the potential problem that was likely to be posed by a combination of that brain injury and alcohol.

10. The sentencing judge dealt with that aspect in the following way:

As I have indicated, I accept that his psychological condition and its unanticipated exacerbation due to alcohol is a mitigating factor that must be given considerable weight, though, as I have mentioned, the amount of weight that it can be given must be mitigated by reason of the sequence of events. I accept his evidence, I accept that he is genuinely remorseful for what has occurred and I accept that he is generally motivated to pursue his rehabilitation.

That is, in our view, an appropriate way to deal with the matter and certainly is in no way indicative of error. His Honour's reference to the 'sequence of events' includes that, on his own account, the appellant was alarmed by his developing sexual interest in children in late 2003. Apparently he sought no appropriate medical advice. He then twice sexually assaulted his other daughter, and subsequently professed remorse and shame. Again, he apparently sought no appropriate medical advice. He then put himself in a position where he was the sole adult in charge of the present complainant and would sleep in a room with her, a situation fraught with danger despite the presence also of the complainant's brother. While the children were in his care, he drank to excess. Given that the appellant was a doctor with some psychiatric qualification and experience of practice in a children's hospital, his Honour's conclusion, that the subsequent diagnosis of a medical condition that could aggravate the effects of alcohol was 'mitigated' as a factor in the offences, was clearly justified.

11. It was then said that the sentencing judge started at a point too high before taking into account the sentence imposed in the District Court of Queensland. We emphatically reject that contention. If anything, that sentence was extraordinarily lenient. That may be explained by the factors to which we have referred which formed no part of the matters that the Queensland District Court was to consider, but even putting those factors to one side, the sentence and non-parole period, in our view, demonstrate a degree of leniency that is more than should be expected in the circumstances.

12. The sentencing judge had before him a number of somewhat similar cases and although those cases and a number of others were put before us as comparable offences, there is nothing in a review of all of those cases which indicate that the sentence imposed in this case should be described as manifestly excessive. It may be noted that the two Queensland cases upon which Mr Callaghan placed some reliance were described by the sentencing judge as 'strikingly lenient'. We agree.

13. The sentencing judge adopted the approach of asking what the likely effective head sentence would have been had the Queensland sentence and the sentence he was considering been imposed at the one time (Mill v The Queen (1988) 166 CLR 59 at 66). The appellant does not criticise this approach. Accordingly, the sentencing judge considered that a sentence of four years imprisonment was appropriate in relation to each offence. To take into account the four months actually served in Queensland, the sentencing judge reduced the sentence and non-parole period by four months.

14. In our view the sentencing judge would have been entitled to adopt an approach which would, in effect, cumulate the sentences in respect of the offences involving different daughters. The approach that he took achieves that objective having regard to the difficulty of otherwise taking into account the time served in Queensland.

15. There is no occasion for this Court to interfere with the sentences imposed. It is for these reasons that we dismissed the appeal.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Respondent: ACT Director of Public Prosecutions

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