R v Dales [1995] QCA 329

R v Dales [1995] QCA 329 - QCA 1995 case summary — Zoe

[29]

... Here there was, after conviction, no formal recitation by the Crown of the specific facts on which reliance was placed for sentence. On the other hand, there were some general references to matters which had in the course of trial been given in evidence by the complainant and other Crown witnesses. These matters included evidence of similar acts of incest commencing with an attempt on the complainant at the early age of ten years, as well as testimony of the complainant that the incest had ultimately become a regular event. Such testimony had, necessarily without objection and rightly, been admitted either in proof of 'system' or of 'guilty passion' on the part of the accused and in accordance with the well known principle in R. v. Ball [1911] A.C. 47; see also Reg. v. Witham [1962] Qd.R. 49. The matters referred to were not then denied or called in question by counsel for the defence, but this can hardly justify a conclusion that the accused was then admitting them. He had, after all, in giving evidence on oath at the trial expressly denied all those matters of impropriety with his daughter which had been given in evidence against him. True it is that the jury had preferred the evidence of his daughter and other Crown witnesses to that of the accused; but his conviction on the single count of incest charged against him could not, as Mr Vasta Q.C. conceded on appeal, be said by implication to have involved his conviction in respect of those other acts of incest or attempted incest given in evidence but not charged against him. Most of them were, in any event, not corroborated, and one, at least, occurred out of the jurisdiction and so could not have been the subject of a charge in Queensland. It seems to me to be impossible to distinguish the principle in R. v. Hutchison (supra) on the footing that there the evidence was taken before the judge after trial, whereas in the present case it was taken during trial. In both cases the accused would have been deprived of the right to a jury trial and verdict in respect of the other alleged offences; in both cases the other offences were not capable properly of forming an element in his sentence; and in both he remained liable to conviction and sentence in any further proceedings which might be taken in respect of those offences.

[141]

Applying these principles to the facts of a particular case has sometimes caused difficulty. Plainly if the defendant has already been acquitted by the jury on one particular count the judge may not have regard to allegations distinctive to that count when sentencing the defendant on other courts on which he has been found guilty. The situation will be essentially the same where he pleads guilty to one count and the Crown decides not to press a related charge of a serious offence on the same information, or indeed where a related charge could have been laid but in fact was not: see, for example, King [1925] NSWStRp 18; (1925) 25 SR (NSW) 218; Lovegrove [1961] TASStRp 13; [1961] Tas SR 106; Toomey [1964] Crim LR 419 and Boney; Ex parte A-G [1986] 1 Qd R 190; (1986) 25 A Crim R 37. On the vexed matter of representative counts, see Huchison (1972) 56 Cr App R 307; Price [1979] Crim LR 468; and Singh and Singh [1981] Crim LR 509; and the local case of Reiner (1974) 8 SASR 102; and also the Victorian case of Wright (1974) cited in R G Fox and A Freiberg, Sentencing: States and Federal Law in Victoria (1985), pars 2.322-2.324. However, it is certainly not a universal rule that the judge, when sentencing for the offence specifically charged in the information, may never have regard to relevant actions of the defendant that, strictly speaking, constituted separate offences. If there were offences of lesser gravity than the offence of which the defendant has been convicted, then it will be a matter of degree and fairness whether they may properly be taken into account as a part of the circumstances surrounding the offence charged. If a burglar is disturbed in the course of ransacking a house, and seriously assaults the victim, the assault should be separately charged and not regarded as a mere matter of aggravation of the burglary: Parsell (1980) 28 SASR 369 (note). On the other hand, relatively minor indecencies that are directly associated with an act of rape, though serious enough in themselves, are often not separately charged but are nevertheless taken into account by the sentencing judge as circumstances of aggravation. ..."

[193]

"Although, in my opinion, s. 582 does not have the effect attributed to it by the Court of Criminal Appeal, there is a rule of sentencing practice which may preclude a sentencing judge from taking a circumstance of aggravation into account in exercising a discretion within the limits determined by the plea or verdict. It is a rule of sentencing practice that an allegation made but not admitted or otherwise proved against an offender cannot be taken into account in passing sentencing upon him. Ordinarily, a contest upon an issue of fact is resolved by the sentencing judge after hearing evidence relating to that fact if the fact has not been determined by a jury verdict and if the fact is of sufficient importance to justify a hearing. But where statute provides that a particular issue is susceptible of resolution by the verdict of a jury, a sentencing judge cannot deny an offender his right to a jury trial of that issue, and himself assume the function of finding the facts. Where there is a contest as to a circumstance of aggravation which might have been alleged in an indictment and submitted to a jury's determination, but which was not so determined, the judge cannot impose sentence on the footing that the circumstance of aggravation has been established. The Court of Criminal Appeal so held when it reduced the sentence in R. v. Bright ([1916] 2 K.B. 441). Darling J., delivering the Court's judgment, said ([1916] 2 K.B. at pp. 444-445) that a judge 'must not attribute to the prisoner that he is guilty of an offence with which he has not been charged - nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation'. (and cf. Lovegrove v. The Queen ([1961] Tas.S.R. 106); Reg. v. Huchison ((1972) 56 Cr.App.R. 307, at p. 309). Where there is a contested issue of fact affecting the sentence which ought to be imposed it would be wrong to deny an offender the right to have a jury's verdict upon the contested issue, and to sentence him as though the issue had been resolved adversely to him. But where adverse facts are admitted and no resolution of a contested issue is required the offender is denied no right and loses no safeguard if the agreed facts are taken into account in passing sentence upon him.

[243]

R. v. Salcedo (C.A. No. 307 of 1989, unreported, judgment delivered 15 December 1989) concerned two counts of indecent dealing with a 12 year old girl for which the appellant was sentenced to 3½ years imprisonment on the first count and 2 years in respect of the second. In the course of trial the complainant was cross-examined and evidence was given with a view to showing that the complainant had tempted the applicant to engage in sexual activity. He was 43 years of age and had no previous convictions. He had a good work history and supported his family. The complainant had been entrusted to him as the father of one of her school friends and had gone to his home. He placed her hand upon his penis inside his clothing in respect of the first offence. On the occasion of the second offence, he removed their underclothing, placed her on a bed and placed his penis against the outside of her vagina and in due course ejaculated over her body. He told her not to tell anyone what had happened. On appeal the sentence in respect of count 1 was reduced to two years. R. v. Bourne (C.A. No. 291 of 1991, unreported, judgment delivered 27 May 1992) was a case which had more serious features than the present. The applicant was a predator upon young children for sexual activity with a serious criminal history of such misconduct. He was sentenced to 2½ years in respect of a number of charges of indecent dealing not disturbed on appeal. R. v. Vidot (C.A. No. 262 of 1992, unreported, judgment delivered 20 October 1992) concerned an applicant aged 42 years with no previous convictions convicted of indecent dealing of a young girl. The conduct consisted of one occasion of inserting his fingers into her vagina and one occasion of lying on top of her and placing his penis near her vagina. His appeal against a sentence of 18 months imprisonment was dismissed. R. v. Clark (C.A. No. 44 of 1994, unreported, judgment delivered 20 April 1994) was an Attorney-General's appeal against a wholly suspended sentence of 2½ years' imprisonment for four counts of indecent dealing with a girl under the age of 14 years. The respondent was aged 55 years with a good work record and a slight criminal history of no relevant significance. The offences involved digital penetration as well as gross acts of oral genital contact. The offences had occurred some time previously and at the time of sentence the applicant was said to be leading a normal decent life and there was no obvious sign of harm to the child. The Court took the view that the offences were serious but noted that there was remorse, exceptionally good co-operation with the authorities and no risk of re-offending and dismissed the appeal. In R. v. Hauptmann (C.A. No. 196 of 1994, unreported, judgment delivered 3 August 1994) the applicant, a 53 year old man convicted of one count of indecent dealing with a child under the age of 12 years, was sentenced to 2½ years' imprisonment. At the time of the offence the complainant was 6 years and the applicant 52 years. The complainant visited his property with other children in order to ride a horse. He kept the child back when the other children went for a walk, pulled down her pants and kissed her vagina and then pulled down his own pants and rubbed his penis up and down against the child's vagina. Shortly afterwards the girl demonstrated distress and complained about the conduct of the applicant. He initially denied the allegations but eventually pleaded guilty on the morning of the trial. The child was said to suffer from nightmares and moodiness. The applicant had a previous criminal history including sexual offences involving children. His application was dismissed. In R. v. Butler (C.A. No. 16 of 1991, unreported, judgment delivered 23 May 1991) the applicant was convicted of one count of indecent dealing with a child under the age of 16 years after a trial and sentenced to imprisonment for 2½ years. The child was aged 14 years and his step-child. The acts complained of were not dissimilar to those in the present case. The applicant touched the complainant's breasts and vagina both outside and inside her clothing, and penetrated her vagina with his finger. The applicant was aged 38 years with a substantial criminal record but not for offences of a sexual nature. The Court noted that he had shown no remorse taking the matter to trial and compelling the complainant to give evidence. The sentence imposed was said to be well within the range appropriate to an offence of this kind committed by a man in a position of trust and with a significant criminal record.

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