//
[2009] QCA 174
General information, not legal advice.
Court of Appeal (Qld)
2009-06-19
Keane JA, Cullinane and Jones JJ, Separate reasons, for judgment of each member of the Court, each concurring as to the orders
Original judgment source is linked above.
Zoe will write a short plain-English summary of this judgment and email it to you for free: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v CAP [2009] QCA 174
PARTIES: R v CAP (applicant)
FILE NO/S: CA No 224 of 2008 / DC No 241 of 2008
DIVISION: Court of Appeal
PROCEEDING: Application for Extension (Sentence & Conviction)
ORIGINATING COURT: District Court at Cairns
DELIVERED ON: 19 June 2009
DELIVERED AT: Brisbane
HEARING DATE: 2 June 2009
JUDGES: Keane JA, Cullinane and Jones JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: Application to extend time to appeal against conviction grantedAppeal against conviction allowed with respect to count 5Conviction with respect to count 5 quashed and sentence imposed thereon set aside****Application to extend time to appeal against sentence dismissed
CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE – CONSENT – where applicant convicted of one count of carnal knowledge of an animal – where applicant manipulated male animal to penetrate complainant – where definition of carnal knowledge at relevant time meant that offence could only be perpetrated by a male person – where respondent agrees that conviction cannot stand – where conviction set aside / Criminal Code 1899 (Qld), s 7, s 208, s 211 / R v H [2001] QCA 167, cited / R v P; ex parte A-G [2001] QCA 188, cited / R v RDD [2004] QCA 403, cited / R v Robinson [2007] QCA 99, cited
COUNSEL: B G Devereaux SC for the applicant / M Connolly for the respondent
SOLICITORS: Legal Aid Queensland for the applicant / Director of Public Prosecutions (Queensland) for the respondent
KEANE JA: I have had the advantage of reading a draft of the reasons for judgment prepared by Jones J. I agree with his Honour's reasons and with the orders proposed by his Honour.
CULLINANE J: I have read the draft reasons of Jones J in this matter and agree with those reasons and the orders he proposes.
JONES J: The applicant seeks leave to appeal out of time against his conviction on one offence and his sentences imposed in the remaining 13 offences. On 12 May 2008, the applicant pleaded guilty to all 14 charges on the indictment and the following penalties were imposed:-
(a) 4 counts of rape of his daughter (counts 1, 4, 6 and 7) – 19 years imprisonment
(b) 2 counts of rape against one niece and 2 counts of rape of a second niece and 1 count of rape against a third niece (counts 8, 10, 11, 12 and 14) – 17 years imprisonment.
(c) 4 counts of carnal knowledge against the order of nature (counts 2,5,9 and 13) – 14 years imprisonment.
(d) 1 count of assault occasioning bodily harm whilst armed (count 3) – 7 years imprisonment.
Extension of time
The applicant’s solicitor informs the Court that the applicant filed the appeal and the application for an extension of time to do so on 1 September 2008, almost three months out of time. His delay in so doing is explained by his loss of contact with his then solicitors and more particularly by his being hospitalised in July and August 2008. He first contacted Legal Aid Queensland on or about 21 July 2008, and that office prepared the Notice of Appeal soon thereafter.
The delay is thus relatively short and its cause has been explained. For reasons which follow, the respondent concedes that one offence, count 5 on the indictment – the carnal knowledge of an animal – was not made out. The respondent does not oppose the setting aside of this conviction. This provides the first basis for allowing leave. Secondly, the applicant has been ordered to serve a very long term in prison. These facts are sufficient to justify, in my view, the granting of an extension of time within which to seek leave to appeal the sentence generally.
Appeal against conviction
“Count 5That on a date unknown between the twenty-third
Section 208(2)day of June, 1988 and the twenty-second day of
Criminal CodeJune, 1989 at WW in the State of Queensland
Form 115CAP had carnal knowledge of
an animal, namely a dog.”
The reference to s 208 in the margin was an error. The section had been renumbered and, at the relevant time, was s 211 expressed in the following terms:-
“211. Any person who has carnal knowledge of an animal is guilty of a crime and is liable to imprisonment for seven years.”
As thus expressed, this crime of bestiality was understood to be capable of commission only by a male person, hence the query by the learned primary judge as to whether the applicant was charged as a party. The applicant had previously been arraigned in bulk and had pleaded guilty to all offences so his Honour proceeded to sentence.
Subsequent reflection as to the nature of the offence has led to a concern that the conviction cannot stand. The conduct, as referred to in the Schedule of Facts (ex 1), asserts that the applicant in the presence of his de facto wife forced the complainant to lie on the ground. The applicant then grabbed the family dog, placed it between the complainant’s legs, and pushed the dog’s groin towards the complainant’s groin. He continued to do this until the dog became sexually aroused and he positioned the animal so that its penis penetrated the complainant’s vagina.1 The complainant did not consent to the act and thus has committed no offence to which the applicant could be a party pursuant to s 7 of the Criminal Code. I should note that s 211 was amended in 1997 to broaden its scope to capture behaviour of the kind alleged against the applicant.
The respondent agrees that the conviction cannot stand and that there is no basis for the substitution of another offence. The conviction on Count 5 should therefore be quashed and the sentence of 14 years imprisonment imposed with respect thereto be set aside. That sentence was imposed concurrently with three other offences of carnal knowledge against the order of nature.
Application for leave to appeal against sentence
The applicant is now 63 years old, having been born on 31 May 1946. At the commencement of his offending in 1980, he was 34 years of age. The offending spanned a period of 10 years but did not become the subject of complaint to the authorities until 2006. The applicant was arrested on 9 September 2006, and has been held in custody ever since. Some 290 days of pre-sentence custody was declared relevant to his penalty and the remaining period of approximately 300 days was not. However, the period of the applicant’s non-declarable custody was taken into account.
The four acts of rape in paragraph 3(a) above, were the rape of his daughter who was seven years old at the first offence and between 15-17 years for the others. The last rape resulted in her becoming pregnant with her first child.
Of the five acts of rape in paragraph 3(b), three were committed against his niece when she was aged 11 years, two were committed against a second niece who was aged nine years and the remaining act of rape against a third niece who was aged between 16 and 17 years.
The offending in paragraph 3(c), other than count 5, concerned one act of anal penetration against his daughter when aged between seven and 11 years and one such act on his niece aged nine years (count 9) and one such act on the second niece then aged 11 years (count 13).
Had the problem concerning count 5 been recognised prior to arraignment the applicant might well have been charged with a count of procuring a sexual act (s 218) which for a child under the age of 16 years carried a maximum penalty of 14 years.
The offending referred to in paragraph 3(d) was against the applicant’s daughter when she refused his demand to have sexual intercourse. He beat the complainant, then aged 15 years, firstly with his fists and then whipped her with an electrical cord. She required admission to hospital for the treatment of her resulting injuries.
The commission of the above offences were usually accompanied by physical force, threats and violence towards the respective complainants. On a number of occasions, the offences against his daughter were committed in the presence of her mother, his de facto partner, whose protestations were ignored or met with physical violence towards her. The applicant’s de facto partner did not report this offending to the authorities because of fear for her own safety.
The conduct occurred over a period of ten years though the span of actual offending was only during four years of that period. This was at the time of the young complainants’ physical and emotional development and the conduct has caused lasting impact on each of them. The respective victim impact statements refer to ongoing interference with their emotions, with interpersonal relationships, with trust of others, with lifestyle and with sleeping. Of significance to the applicant’s daughter is the presence of her child who is a constant reminder of the applicant’s abuse of her. The complainant suffers from serious emotional issues and has experienced suicidal ideation.
“So serious is your offending that I have had to consider whether I ought not impose on you a sentence of life imprisonment. The offences are all serious.”2
His Honour went on to accord to the different classes of offences varying levels of punishment. The applicant’s offences of rape against his own daughter to whom he had the greatest duty were at the highest level of depravity.
The offences of carnal knowledge including the incident which was dealt with as bestiality (count 5) attracted sentences of 14 years imprisonment. Such sentences were the maximum permitted for those offences.
As the conviction on count 5 must be quashed, Counsel for the applicant contends that the alleged conduct should not have been considered in the sentencing process. To the extent that the conduct was likely to have impacted on the major head sentence, he argues the sentence must now be ameliorated to allow for this. Counsel also submitted that it was likely that the learned primary judge started with a head sentence of 18 years, made some reduction for the plea and added some undetermined period to take account of the depraved circumstances of the overall offending.
I do not accept this submission. Having regard to the above remarks of the learned primary judge, it is clear enough he approached the sentencing task by determining how far the offending conduct fell short of the worst case level. Inevitably the task required a consideration of all the circumstances. But there is no warrant for assuming that particular conduct, which was the subject of a lesser offence, would additionally inflate the head sentence on the major offences.
The focus therefore must be on the applicant’s conduct in relation to those rapes which attracted the major penalty. The Schedule of Facts describes this conduct as commencing when his daughter was but seven years old. The second occasion was some eight years later when the complainant complied with the applicant’s demand for sexual intercourse out of fear of being assaulted. Similar circumstances attended each of the other two occasions but all of this offending has to be seen against the background which prevailed in the household which had been corrupted by the applicant’s violence towards each other member of it and by his offending against the children in the presence of their mother.
The offending is obviously at a high level. As is generally the case with offending at this level, reported cases are likely to have relevant factors which might be seized upon to explain differences in penalty. However, some guidance is found in the following cases which were referred to during argument.
Firstly, in R v H3 the offender committed 37 offences against three children over a period of 16 years. He was sentenced to 17 years imprisonment on one count of maintaining a sexual relationship with his daughter and concurrent sentences of 12 years for rape and 10 years for sodomy. His offending against his daughter commenced when she was aged between five – six years. His offending was also marked by violent conduct towards his wife during the relevant period. However, his conduct came to the notice of police after he had voluntarily participated in counselling sessions and made admissions. Thereafter, he cooperated with the police in giving a lengthy record of interview and by pleading guilty on an ex officio indictment. He had no prior convictions and had a background of being himself abused as a child.
“[24]. Had P not cooperated with the authorities a sentence of at least 20 years would have been within the appropriate range. But because of P’s early plea of guilty by way of ex officio indictment, his ready admissions to the police and his cooperation a lesser penalty was warranted.”
She found (Williams JA and Chesterman J agreeing) that the sentence of 17 years was within range, having regard to the tempering effect of those mitigating factors.
There is little to be gained by considering other cases to which the Court was referred since it is quite clear that the applicant’s conduct was at the upper levels of offending for these types of offences. His offending is comparable to, if not worse than, that described in those reported cases but significantly his level of cooperation and the absence of genuine remorse indicates that he was not entitled to some ameliorating considerations that attended the sentencing in R v P and R v H.
I am satisfied that the penalty imposed by the learned primary judge was within the appropriate range.
In summary then, I would extend the time within which to appeal and allow the appeal in respect of the conviction on count 5. That conviction ought to be quashed and the sentence imposed thereon set aside. In respect of the application to appeal the sentences, I would dismiss the application.
R
CAP
The applicant has an extensive criminal history which in his early years of offending mainly concerned offences of dishonesty. In 1969 when aged 23 years he committed an offence of aggravated assault on a female and was sentenced to one month imprisonment. Between then and his arrest his recorded offending consists of two offences of assault, two weapons offences, wilful and unlawful damage to property and animal cruelty.
There is little indication of any remorse on the part of the applicant. His plea of guilty was indicated only one week before trial. There was a committal proceeding with cross-examination of each complainant. Consequently, the complainants were left to contemplate the giving of evidence at trial until a very late stage. The callous nature of the applicant’s offending and the level of its depravity called for a sentence at the higher end of the penalty range.
In his sentencing remarks the learned primary judge said:-
On appeal, Thomas JA described the circumstances as being “at the zenith of violation of trust and abuse of power”.4 The same could be said of the applicant’s offending here, but the difference between them is to be found in the applicant’s lack of remorse and cooperation which was a significant feature in the reduction of the penalty in R v H.
In R v RDD,5 the offender, when aged between 39-47 years committed a total of 55 sexual offences against his five children. These included 18 offences of incest and 16 offences of unlawful carnal knowledge. He pleaded guilty to all offences and was sentenced to 14 years imprisonment with a parole recommendation after six years. He was by that time 73 years old. The most serious of the offences were those committed against his daughter who was at the relevant time 12 years of age. The offender attempted to put a pencil into her vagina. She complained about this to a member of her church. In retribution, the offender sodomised his daughter and unsuccessfully attempted to have a pet dog penetrate her sexually. He was a stern disciplinarian and maintained discipline over his children by various forms of abuse including hitting them with an electrical cord. Relevant also to the length of sentence but recognised by the parole recommendation was the fact that the offender was 73 years old. He had no prior criminal history and the offences had been committed some 28 years earlier.
In R v Robinson6 the offender was convicted of maintaining an unlawful sexual relationship with a child when she was aged between five years to seven years and with raping her on occasions. The applicant was aged between 51-53 years at the time. The sexual abuse of the young girl occurred a number of times at his house and in his car. The offender was at first instance, sentenced to life imprisonment but on appeal, this sentence was reduced to 18 years imprisonment.
Though the circumstances of that offending are quite different to the subject offences, the applicant’s conduct would seem to be more serious having regard to the fact that it involved four children and the offending was over a longer period of time.
In R v P; ex parte Attorney-General,7 the offender was a scout master who committed numerous sexual offences against boys, including sodomy and oral sex. There were 10 complainants in all, some being as young as six or seven years, though the majority were older. Various penalties were imposed ranging from five years for the least serious offences to 17 years imprisonment for the offences of maintaining a sexual relationship with a child under 16 years with a circumstance of aggravation. The Attorney-General appealed that penalty contending that the maximum penalty for maintaining, life imprisonment, was called for. The offender however had cooperated with the authorities and had pleaded guilty to an ex officio indictment. In her reasons McMurdo P said:-