Court of Appeal (Qld)|2004-05-28|Before: McMurdo P and Chesterman and Atkinson JJ, Separate reasons for judgment of each member of the court, each concurring, as to the orders made
McMurdo P and Chesterman and Atkinson JJ, Separate reasons for judgment of each member of the court, each concurring, as to the orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
CONVICTED PERSONS – WHEN GRANTED – PARTICULAR OFFENCES –
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPEAL BYCONVICTED PERSONS – WHEN GRANTED – PARTICULAR OFFENCES –SEXUAL OFFENCES – where applicantconvicted on a retrial after successfulappeal against conviction – where acquitted on one count at retrial aftersuccessfulappeal against conviction – where sentence imposed was withinappropriate range – whether appropriate reduction madefor acquittal toreflect overall criminality – where declaration regarding pre-sentencecustody should have been made –where indictment alleges period duringwhich offences occurred – whether offences occurred whilst applicant wason paroleCorrective Services Act 2000 (Qld), s135(2)(e)Penalties and Sentences Act 1992 (Qld), s 161, Part9AR v A [1997] QCA 237CA No 158 of 1997, 8 August 1997,consideredR v Bielefeld [2002] QCA 369
CA No 159 of 2002, 19
September 2002, consideredR v C [1992] QCA 13
CA No 262 of 1991, 3
March 1992, consideredR v Gilmore (1979) 1 A Crim R 416,
citedR v Inkerman [1997] QCA 316
CA No. 294 of 1997, 29 August 1997,
citedR v M [1999] QCA 344
CA No 219 of 1999, 20 August 1999,
considered
R v Petersen [1998] QCA 65
[1999] 2 Qd R 85, cited
Judgment (44 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
[1] McMURDO P: I agree with the reasons for judgment of Atkinson J and the orders she proposes.
[3]
[2] CHESTERMAN J: I agree with the reasons for judgment given by Atkinson J and with the orders proposed.
[4]
[3] ATKINSON J: The applicant was convicted on 21 January 2001 after a two day trial on two counts of unlawful sodomy (counts 1 and 3); one count of indecent treatment of a child under the age of 16 with a circumstance of aggravation (count 2); and one count of rape (count 4). He was acquitted on one count of rape (count 6). This was a retrial after a successful appeal against conviction.
[5]
[4] He was sentenced by the learned trial judge, to serve the following sentences concurrently: on count 4, 9 years' imprisonment; on counts 1 and 3, 8 years' imprisonment; and on count 2, 4 years' imprisonment. No declaration was made in relation to pre-sentence custody. As he was convicted of offences which occurred in 1984-1985, the provisions of Part 9A of the Penalties and Sentences Act1992 (Qld) did not apply to him[1] and he was not convicted of a serious violent offence.
[6]
[5] The applicant appealed against the convictions on the grounds that the verdicts were unsafe and unsatisfactory but abandoned that appeal and the appeal was struck out. He has sought leave to appeal against sentence on the ground that the sentence was manifestly excessive. At the hearing the applicant raised other concerns about his sentence and the way in which it had been implemented by the Department of Corrective Services. He said he had been told he had been convicted of a serious violent offence, which is of course, not the case.
[7]
[6] The evidence showed that the complainant was 10 years old when the applicant, who was her mother's brother and thus her uncle, came to live in the house where the complainant lived with her mother, her mother's boyfriend and her five siblings. The applicant was then aged 24 - 25 years old. He was not working when he lived with the complainant's family.
[8]
[7] The complainant alleged that the applicant sexually abused her on some occasions when no-one else was at home. The applicant, who gave evidence, conceded that there may have been occasions when he was alone in the house with the complainant. However, he said those occasions were not for long periods of time. Counts 1 to 4 alleged that the offences occurred on a date unknown between 28 May 1984 and 28 May 1985.
[9]
[8] The first count of unlawful sodomy (count 1) occurred after the applicant came to live at the house in which the complainant lived. She was at home on a school day in her grade 4 year. On that afternoon, the applicant called her into the bathroom and closed the door behind her. He pulled his pants down and then took her pants off and turned her body around so her back was towards him. He sat on the toilet and lowered her onto his lap. With his hands around her waist, he pushed her on to his penis. His penis penetrated her anus. He moved her up and down and after a short time told her to hop off. He then wiped his penis; she put her pants on and left the bathroom. This was the first time that anything like that had occurred to the complainant. The applicant's act caused her pain and a burning sensation which lasted for a couple of days.
[10]
[9] Counts 2, 3 and 4 occurred on a single occasion. On that occasion, the complainant was in the bathroom with the applicant, although she could not remember how they came to be there. The applicant had his pants down and he told her to kneel down and suck on his penis as if it were a lollipop. He put his hand on the back of her head and pushed her head towards his penis. She did as he told her to do (count 2). He then told her to get up and take her pants off. He turned her around and placed her on his lap with his penis penetrating her anus (count 3). He moved her up and down with his hands. His penis came out and he put it back in but this time it went into her vagina (count 4). She told him that it had gone into the wrong place and he said, "No, that's the one it is supposed to go into". He continued to penetrate her vagina and after a short time told her to hop off. He wiped his penis and she put on her pants and went out of the bathroom. Later she noticed blood on her underpants.
[11]
[10] The complainant referred to other uncharged activity of a similar kind which happened in her home and another at her grandparents' house. The complainant said that no-one had ever sodomised her apart from the applicant.
[12]
[11] The prosecution called medical evidence which supported evidence given by the complainant. Dr MacDonald, an experienced general practitioner, who was also a sexual assault examiner, examined the complainant on 20 February 2003. She found that the complainant had a normal vulva and vagina with no evidence of old scarring or damage. However, in the complainant's anal area, Dr MacDonald found chronic atrophic dermatitis and funnelling of the anal opening which meant that the opening was a bit wider and looser than usual. In addition, the anal sphincter tone was diminished. The doctor said that funnelling can be found in normal people but could also be caused by a blunt object being pushed from the outside to the inside. She said that repeated anal penetration with a blunt object could affect the sphincter tone. While the dermatitis she found is reasonably common, the funnelling and lack of sphincter tone are not particularly common and a combination of all three is most uncommon. In her opinion, repeated anal sex could result in all three. She had never previously found all three present in an adult female aged 30. It was consistent with someone who had anal sex repeatedly many years ago. The atrophic dermatitis could have been caused by semen from anal intercourse when the complainant was a child, or if the child was emotionally disturbed and then continually washing herself.
[13]
[12] The defence called a colo-rectal surgeon. He disagreed that the atrophic dermatitis would be likely to result from something that had happened many years ago when the complainant was a child. He agreed however, that once funnelling and loss of tone to the sphincter had occurred, it was irreversible. He agreed that the combination of atrophic dermatitis, funnelling and loss of sphincter tone was not commonly found in the general population.
[14]
[13] The evidence with regard to count 6 from the complainant was that she was 16 and had returned home after being in Brisbane. She asked the applicant to take her to get some Kentucky Fried Chicken, so he drove her in his car. He pulled off just before a tannery on a dirt track and went into the bush a bit. He turned off the car. She said, "No, no more". He said, "Oh just one more - one more time." She said she just went numb. He came to her side of the car, opened the door, helped her out of the car, and opened the back passenger door. She lay down on the back seat of the car; he removed her pants and put his penis into her vagina. After he penetrated her, he ejaculated beside the car and then went and got KFC and went home.
[15]
[14] As to when this occurred, the complainant could only say that the incident occurred after her 16th birthday in May and before Christmas of the same year. She said she had moved to North Queensland on her 17th birthday. However, her mother's evidence was that the complainant moved to North Queensland on or just before her 16th birthday. The applicant was convicted on that count on his first trial but acquitted on the retrial.
[16]
[15] The complainant first made allegations against the applicant in September 2000 when she was 26. She gave reasons for not complaining earlier and the judge made appropriate directions to the jury as to the difficulties caused to the applicant by the long delay between the alleged offending and the trial.
[17]
Application for leave to appeal against sentence
[18]
[16] The applicant was a 44 year old man who was 24 - 25 at the time of the offences. He had convictions for similar offences (2 counts of unlawful carnal knowledge, one count of entering a dwelling house with intent). The applicant's conduct seriously compromised the complainant's life. When the matter was previously heard in this court[2], the court held that a sentence of 10 years' imprisonment on counts 4 and 6; 8 years' imprisonment on counts 1 and 3; and 4 years imprisonment on count 2 was well within the appropriate sentencing range.
[19]
[17] A reduction of 12 months in the sentence imposed on count 4 was made by the sentencing judge to reflect the acquittal on count 6 and the applicant's time spent in pre-sentence custody.
[20]
[18] The appropriateness of a head sentence of 9 years' imprisonment on count 4 is demonstrated by the following cases.
[21]
[19] In R v M,[3] the adoptive father of the complainant was convicted on his own plea of guilty to four counts of rape. The sentence imposed was 12 years' imprisonment, with a recommendation for parole after 5 years. The complainant was aged 13 at the time of the first offence and 16 at the time of the last offence. The complainant believed M to be her natural father. One of the offences occurred in the presence of a school friend of the complainant's. Another occurred after threats and violence. On appeal, it was held that the head sentence was too high, taking into account other comparable cases: in particular the case of Massey[4] where Massey was sentenced to 11 years imprisonment for rape and other sexual offences where severe violence was involved. The head sentence was reduced to 10 years and the recommendation for parole was not disturbed.
[22]
[20] R v Bielefeld[5] was a case where, on a plea of guilty to one count of abduction, one count of unlawful sodomy and one count of unlawful and indecent assault (which involved digital penetration), B was sentenced to 8 years imprisonment for unlawful sodomy and two years for each of the other counts. All of the sentences were to be served concurrently. As part of the sentence for unlawful sodomy, the sentencing judge declared that the applicant was convicted of a serious violent offence. B abducted a young girl aged 9 and took her into bushland where he committed the offences.
[23]
[21] R v A[6] was a case where, on conviction after a trial of 3 counts of rape, 1 count of assault with intent to commit rape and 1 count of indecent dealing, A was sentenced to 10 years' imprisonment for each of the rape counts and 3 years' imprisonment for each of the other counts, all sentences to be served concurrently. The complainant was A's stepdaughter. She was 10 when the first offence occurred and about 14 when the other 4 offences occurred. On appeal, it was held that the sentence was not manifestly excessive. A was in a position of trust and the offences occurred when the complainant was young.
[24]
[22] In R v C,[7] 8 years' imprisonment with a recommendation for parole after 2 years was imposed for a conviction on a plea of guilty to one count of rape. The complainant was the daughter of C's de facto partner and was 9 years old. The de facto relationship had commenced before the complainant's birth, and C assumed the position of father in her life. The offence was an isolated incident, induced by alcohol and post-traumatic stress that C was experiencing. It was held that the sentence was not manifestly excessive, particularly with regard to the early recommendation for parole.
[25]
[23] The sentence of 9 years' imprisonment imposed on count 4 was within the appropriate range. It was appropriate to reduce the sentence previously imposed because the applicant was convicted on one count of rape rather than two counts. It was, in my view, appropriate to reduce the sentence by one year to reflect the difference in overall criminality once he was acquitted on count 6, otherwise he would be effectively facing a comparatively higher sentence than that which was imposed on the first trial.
[26]
[24] There are sound policy reasons why an accused person should not ordinarily face the prospect of a higher sentence on a retrial after a successful appeal. These were set out by Street CJ in R v Gilmore[8] at 419 - 420:
[27]
"The policy consideration underlying the specification of the upper limit on the sentence is twofold. In the first place, a person whose conviction is tainted in that the first trial was defective to an extent not capable of being saved by the proviso, should not, in fairness, be required to run any risk of suffering a heavier sentence on a new trial as a consequence of exposing on appeal the defective nature of the first trial. It is in the public interest in ensuring orderly and proper administration of the criminal law that defects in trials should be challenged and laid bare on appeal. As a corollary to this, it is wrong that any person should suffer ill-founded criminal judgment in consequence of a defective trial, and feel constrained to avoid exposing that defect lest on a new trial a heavier sentence be passed.
[28]
In the second place, the passing of a heavier sentence on a new trial could be seen by the convicted person, as well, perhaps, by others in the community at large, as possibly importing some element of retribution by the machinery of criminal justice in consequence of the conviction on the first trial having been successfully overthrown. Any such impression would, of course, be groundless. But, at the same time, it is highly desirable to avoid any possible basis for permitting the operation of the system to be exposed to criticism of such a nature."
[29]
[25] This was followed in Queensland in R v Petersen[9] where the court held at 87:
[30]
"We consider that where an offender is to be re-sentenced following a successful appeal and re-trial, the second sentencing Judge should start with the proposition that the offender ought, in general, not receive a harsher sentence than that imposed after the first trial. If minded to depart from that approach, he or she should consider the powerful policy considerations outlined above. Only if the second sentencing Judge concludes that the earlier sentence was outside the appropriate range, or the facts as they appear at the time of the re-sentence are significantly different from those upon which the first sentence was based, should he or she impose a heavier sentence."
[31]
[26] The sentence of nine years' imprisonment imposed on count 4 gives effect to this principle. However, the question remains as to whether a declaration should have been made as to the time of some 8 months spent in pre-sentence custody pursuant to s 161 of the Penalties and Sentence Act. Without that declaration the sentence was equivalent to 9 years and 8 months or even longer when s 135(2)(e) of the Corrective Services Act 2000 (Qld) is taken into account. This does not give effect to the Petersen principle.
[32]
[27] The learned trial judge was told by the prosecutor that a declaration as to time spent in pre-sentence custody was complicated because the applicant had spent time in custody not only in respect of these offences but also because his parole on earlier offences had been revoked. Those offences were two counts of carnal knowledge of a girl under the age of 16 and enter dwelling house with intent. On 8 December 1983, he had been sentenced to concurrent terms of imprisonment of 9 months, 6 months and 3 months. The 9 month sentence would have expired on 7 September 1984. He was granted parole on 29 May 1984 (i.e. after serving 5 months 21 days of his sentence).
[33]
[28] His parole was cancelled on 21 January 2004 because it was said that he had committed offences whilst on parole. However, the indictment merely alleged that he committed the offences the subject of counts 1 to 4 on a date unknown between 28 May 1984 and 28 May 1985. His conviction on these charges cannot, as a matter of law, prove beyond reasonable doubt that the offences occurred prior to 8 September 1984 when his earlier sentence expired and he was no longer on parole.
[34]
[29] It cannot therefore be said that he was on parole when he committed the present offences. His parole should not therefore have been cancelled and he was entitled to a declaration under s 161 of the Penalties and Sentences Act as he was held in custody in relation to the offences with which he was charged and for no other reason. The dates between which the applicant was held in pre-sentence custody were 29 May 2003 and 21 January 2004. The period of such custody was 238 days. The period should be declared to be imprisonment already spent under the sentence.
[35]
[30] The application for leave to appeal should be granted and the appeal allowed only to the extent of declaring the period in custody of 238 days from 29 May 2003 to 21 January 2004 inclusive to be imprisonment already spent under the sentence.