R v G; ex parte Attorney-General of Queensland [1999] QCA 477

[1]

Director of Public Prosecutions (Queensland) for the appellant

[2]

Shannon Donaldson Province Lawyers for the respondent

[3]

**[1] THE COURT: This is an appeal against sentence by the Attorney-General of Queensland in respect of the sentence imposed on the respondent for nine counts of indecent treatment of a girl under the age of fourteen years. The nine counts to which the respondent pleaded guilty involve two different girls both of whom were nieces of the respondent and were cousins of each other. The offences are breaches of s 216 of the Criminal Code.

[4]

[2] The first two counts of indecent dealing were with the respondent's niece T, between 11 September 1977 and 11 September 1978 when she was aged six to seven and the respondent was aged 16 to 17. T was born on 11 September 1971 and the respondent was born on 7 August 1961.

[5]

[3] The respondent also pleaded guilty to seven counts of indecent dealing with his niece, K. Counts three to five relate to a period between 1 January 1980 and 1 January 1981. K was born on 18 June 1976 and so was aged four to five when the offences in counts three to five occurred. The respondent was aged 18 to 19.

[6]

[4] Counts six to nine occurred between 1 January 1983 and 1 January 1984 when the complainant K was aged six to seven and the respondent was aged 21 to 22 years.

[7]

[5] The first count relates to the child T, when she was about six years old. Her mother had gone to the hospital to give birth to her brother W. T was staying at her grandparents' farm. She went out on the motorbike with her uncle, the respondent who lived with his parents on the farm. He took her up to the shearing shed where he laid her on a bale of hay. He took some cream down from a little ledge in the shearing shed and put it on her vagina using his hands to do that. The bottom part of her clothing was off and she remembers that the hay was sticking into her and that it was itchy. She doesn't really know what the respondent was doing but he was hurting her in her vagina. She felt pain in her vagina and he was in between her legs in front of her. She was lying on her back looking up at the shed. When she felt the pain she screamed. The respondent put his hand over her face and the complainant remembers kicking and biting his hands. She was crying and she remembers the respondent driving her back to the house.

[8]

[6] Count two on the indictment relates to a time when she was again at her grandparents' farm and her grandmother told her to go with the respondent on the motorbike. When they got to the shearing shed he told her to get off the bike and she started crying because she knew what was going to happen. He turned and said to her, "If I can't get it from you I'll get it from K", K being her cousin who was almost five years younger than she was. She therefore went into the shed with him. The respondent told her to lie down on the hay and again some form of cream was produced. The cream was put on to her vagina using his hands. He was kneeling in front of her between her legs and there was some pain in her vagina. She can remember crying and crying.

[9]

[7] Count three on the indictment relates to the child K who was born on 18 June 1976. She was living with her mother at the Night Owl Takeaway and as her mother worked on the weekends until two or three am she arranged for her children to stay at the children's grandparents farm which is where the respondent lived. The respondent was K's mother's brother and the grandparents were K's mother's parents. When she stayed the night at her grandparents' home the respondent bathed her at night and sometimes he got into the bath with her. On a particular occasion, when he was in the bathroom he undressed her and then felt her all over. She was standing beside the bath and he knelt in front of her. He rubbed his hands all over her body including on her crotch and her vaginal area. She tried to keep her legs together but he pushed them apart. His finger rubbed on the entrance of her vagina and then penetrated her. He rubbed his hands between her legs all the way up to her bottom area and then up and down the crack of the bottom. He got into the bath with her and again rubbed his hands all over her.

[10]

[8] Count four concerns a night when the complainant remembers being in the lounge room at her grandparents and the respondent said to her, "Are you going to come into my bedroom tonight?" That night she was in bed when the respondent came in and woke her up. He took her into his room. He got into bed with her and took off her underpants. He then put her pants beside him near his legs and he took his pants off. He rubbed himself up against her. She was lying on her side and the respondent held her very close to him. He rubbed his penis on her stomach area for a while and then he put her hands on his penis. He had his hands on the outside of her hands. He really squashed her hands so that they were tightly on his penis and then he made her hands go up and down on his penis. She says it seemed like an hour but she doesn't know how long she was touching his penis for. It may have been about 10 minutes. After he finished he gave her her underpants back and told her to go back to bed.

[11]

[9] Count five in the indictment occurred in exactly the same way when she was in bed with the respondent. He got her to pull his penis and she dug her fingers into his penis so that her fingernails went into the tip. She remembers the respondent flinching and saying, "Jesus", and then pushing her aside. She then rolled over, got out and went to her bed.

[12]

[10] Count six and seven occurred when the complainant was in grade three at Primary School. By this time the respondent was 21 or 22 years of age. She went out with him on his motorbike and he stopped in the middle of the paddock not far from the house. They went out past the milk sheds and through a barbed wire fence. She was sitting side saddle on the motorbike. He grabbed her around the waist and lifted her up. He took her underpants off and then put her back down on the bike so that she was lying on the bike with her head down near the tank. He held her hips with his hands and put his tongue into her vagina which he licked. He did this for a while and then he pulled her down towards the end of the bike. He stood at the end of the bike to the side of it. He pulled his pants down so that his penis was out. He moved her closer and at one stage he was almost on top of her and the bike nearly fell over. He had one leg on the ground and lifted his other leg up and lay partially on top of her rubbing his penis against her vagina. This hurt her and she cried. His hands were around her hips and he said to her that she would be OK and gave her her underpants back. They then got on the bike and went to check on some cattle and then went back to the house. Count six concerns his licking of her vagina and count seven is his rubbing of his penis against her vagina.

[13]

[11] Count eight concerns an occasion when the respondent and the complainant went up to the back paddock on his bike. On this occasion he stopped the bike and pulled her straight down to the end of the bike, pulled her underpants off while she was there and put them in his pocket then pulled his pants down a little way. He rubbed his penis in between her legs against her vagina. She cannot remember if he ejaculated or not. He then stopped. The respondent pulled her underpants out of his pocket and gave them to her and she put them on. They got back on the bike and on the way back to the farm he was "mucking around" and crashed the bike. The bike fell on her and she got a burn on her leg from the muffler.

[14]

[12] Count nine occurred at the X farm when she was in grade three or four. It was about 20 or 30 minutes away from the grandparents' farm in a scrub paddock with a big dam. The respondent made the excuse that they were going down to check the steers on the X farm. He took her on his motorbike down to the farm and they went and had a look at the dam. He took her into the pump shed which was a small shed with a cement floor. He lay a sheet on the floor right next to the pump and took her clothes off and got her to lie on the sheet. He had a shirt on but then he took his pants and his boots off and lay between her legs and used his tongue on her vagina, licking it. He then got up and knelt over her on his knees one of which was on each side of her chest. He then tried to put his penis into her mouth. He held his penis in his hand and tried to hold her head and put his penis in her mouth. It was brushing against her cheeks and pressing against her face. She kept her mouth closed and he kept saying, "Go on, put it in your mouth and suck it". She would not let him do that and he stopped. He moved back down to lie on top of her, crawling backwards to get there. He rubbed his penis up and down on her chest and then against her vagina. She told him that she needed to go to the toilet. He would not let her get up and go the toilet. He took her hands and held them above her head. She screamed and was crying to go to the toilet but he would not let her up. She then urinated and she can recall as she urinated the respondent said, "Oh, that felt so good". She remembers that it hurt and stung and she doesn't know if there was any ejaculation. He stopped and she stood up. He was kneeling on both knees. He rubbed her up and down with the sheet and she put her pants back on. He got up and put his pants and boots back on and they got back up on the motorbike and went to the house and inside for dinner. He undressed her that night but didn't get into the bath with her this time. These offences were accompanied by implicit threats by the respondent that the victims should not reveal what had happened.

[15]

[13] The offences came to light when K and T spoke to each other in 1998 about the offences. Prior to that neither was aware exactly what, if anything, had happened between the respondent and the other cousin. The respondent indicated at an early stage that he would plead guilty and there was a hand-up committal which was a matter properly taken account of by the learned sentencing Judge.

[16]

[14] The learned sentencing Judge sentenced the respondent to the following periods of imprisonment to be served concurrently: 12 months imprisonment on counts one and two; 18 months imprisonment on counts three - five; two years imprisonment on counts six and seven; and two and a half years imprisonment on counts eight and nine. His Honour ordered that the sentences be suspended immediately for a period of four years.

[17]

[15] The learned sentencing Judge properly took into account that the victims were the respondent's nieces, and the age of his niece K. His Honour took into account the respondent's age at the time of the offences and at the time of his sentencing; that the conduct could be described as grossly indecent and that it grew progressively worse; that both victims made clear their opposition to what he did or intended to do. His Honour took into account that on occasion the victims were hurt or caused pain and that some of his offences were accompanied by threats to obtain the complainants' silence. He also took into account the community disapproval of conduct such as the respondent's and the need for punishment; the plea of guilty, his cooperation and remorse and his saving the victims the distress of having to give evidence; the length of time since the offences had been committed; the bad example set by the respondent's father's sexual misconduct with, for example, the mother of one of the victims; the lack of a criminal history; and his complete rehabilitation.

[18]

[16] However, his Honour made some errors of fact and law in his sentencing remarks and failed to take some relevant matters into account or give them sufficient weight. His Honour made a mistake as to the age of the complainant on counts one and two. He observed she was an 11 year old girl at the time of the "last offence committed on her". In fact, she was six to seven on the occasion of offences against her which occurred between 11 September 1977 and 11 September 1978. It was submitted that this was merely a slip of the tongue by the sentencing judge and this is probably the case.

[19]

[17] His Honour took into account the fact that the offences took place whilst the complainants were visiting the farm where the respondent and his parents resided, which would normally have been expected to be an enjoyable experience, which enjoyment "was marred, perhaps lost, by reason of the [respondent's] misconduct". The breach of trust involved in the sexual misconduct committed by the respondent against his nieces was however much more serious than a loss of enjoyment, as can be seen in the unchallenged victim impact statements particularly by K.

[20]

[18] His Honour correctly observed that he was obliged to sentence the respondent on the punishment levels that applied at the time of the offences[1]. However, he wrongly said that at the time the maximum penalty for each offence was five years imprisonment. In fact at the relevant period, the maximum penalty for indecent dealing with a girl under the age of 14 years was imprisonment with hard labour for seven years (with or without whipping).

[21]

[19] The history of the relevant section is as follows. From its inception in 1899 until The Criminal Code and Other Acts Amendment Act 1961, s 216 provided that:**

[22]

216. Indecent Treatment of Girls under Seventeen. Any person who unlawfully and indecently deals with a girl under the age of seventeen years is guilty of misdemeanour, and is liable to imprisonment with hard labour for two years.

[23]

If the girl is under the age of twelve years he is liable to imprisonment with hard labour for five years, with or without whipping.

[24]

[20] Since that time, the section has been amended significantly. In s 41 and the Schedule to The Criminal Code and the Justices Act Amendment Act 1975 No 27 which commenced on 1 July 1975, s 216 was amended so that as at 1 July 1975, it provided:

[25]

216. Indecent Treatment of Girls under Seventeen. Any person who unlawfully and indecently deals with a girl under the age of seventeen years is guilty of a misdemeanour, and is liable to imprisonment with hard labour for five years.

[26]

If the girl is under the age of fourteen years he is liable to imprisonment with hard labour for seven years, with or without whipping.

[27]

**[21] In s 19 and the Schedule to The Criminal Code Amendment Act 1976 No 25, s 216 was amended again, with the word "seventeen" occurring in the heading and throughout the section being replaced with the word "sixteen", lowering the threshold age of the offence of indecent dealing with a girl to sixteen years of age.

[28]

[22] After this time, s 216 was not amended until The Criminal Code Amendment Act 1986 No 1 which omitted the words "with or without whipping" from the section.

[29]

[23] In 1989 the section was substituted, with the offence of indecent dealing with boys (s 210) and the offence of indecent dealing with girls (s 216) being amalgamated in s 210 which became the provision setting out the offence of indecent dealing with children. The penalties now applicable under s 210 are 10 years imprisonment for indecently dealing with a child over the age of 12, and 14 years if the child is under 12. However, the respondent falls to be sentenced under the section as it was at the time of the offences, ie when the maximum punishment was seven years imprisonment not five years. An increase in the maximum penalty considered by the judge will ordinarily lead to an increase in the appropriate sentence.[2]

[30]

[24] His Honour also took into account that an application for criminal compensation had been made by the victims of the offences. He said that he was not in a position to form any judgment as to whether they were entitled to compensation or not, because that would depend upon whether there was evidence of shock or mental injury, but his Honour took into account that the respondent owned and operated a farm and that it was probably his only asset and if it were imperilled in any way, for example by his imprisonment, it would imperil his chance of meeting a compensation award if one were made. The problem that arises from this is that it suggests that his Honour took account of the likelihood of the respondent's being able to meet a compensation order as part of the sentencing process whereas, as s 29 of the Criminal Offence Victims Act 1995 provides, an order for compensation is in addition to any other sentence or order the court may make against the respondent and is not, for any purpose, to be taken to be part of the sentence passed against the respondent. To do so is plainly wrong[3].

[31]

[25] In addition, the sentencing judge took account of section 9(2)(a) of the Penalties and Sentences Act 1992 which provides that in sentencing an offender, a court must have regard to principles that a sentence of imprisonment should only be imposed as a last resort, and a sentence that allows an offender to stay in the community is preferable. However those principles do not apply to the sentencing of an offender for any offence that involves the use of violence. All of the offences, and particularly count nine, involved the use of violence against the victim and the respondent is not therefore entitled to the benefit of any such principle.[4]

[32]

[26] When the Court considers an appeal against sentence by the Attorney-General under s 669 it may only interfere with the sentence imposed if the sentencing discretion has miscarried. The Court expressed the applicable principle in R v Melano; ex parte Attorney-General[5] in the following way:**

[33]

"Unless the sentencing judge has erred in principle, either because an error is discernible or demonstrated by a manifest inadequacy or excessiveness, the sentence he or she has imposed will be 'proper'".

[34]

**[27] Additional caution must be exercised when the Court proposes to send an offender who is at large to prison for a relatively short period[6].

[35]

[28] There are a number of significant mitigating factors in this case including the length of time since the offences occurred, the respondent's complete rehabilitation, his lack of any criminal record and that a sentence of actual imprisonment will be likely to disrupt his family and livelihood.

[36]

[29] However in this case the number of legal and factual errors leads us to the view that the sentencing discretion miscarried and, when these are corrected, the sentence is manifestly inadequate having regard to the serious nature of the sexual acts, the number of offences, the callousness exhibited in their commission, the lengthy period of offending, the fact that there were two victims of tender age and the pervasive psychological consequences for them. The Court is required in such a circumstance to resentence the respondent although it would ordinarily not sentence the respondent to any higher sentence than that contended for by the Crown below. The sentence contended for in this case was a head sentence of two and a half years on counts eight and nine with a recommendation for parole after four - six months. On appeal it was conceded by both parties that, as supervision would not be necessary, certainty would be better served by suspending the sentence after a fixed period. A sentence which includes a period of actual imprisonment is consistent with the decisions of this Court in R v B[7] and R v K[8]. We would vary the sentence on counts eight and nine only to the extent that instead of being wholly suspended, it is suspended after the respondent has served four months imprisonment.**

[37]

[2] Law [1995] QCA 444; (1995) 84 A Crim R 142 at 144.

[38]

[3] See R v Hays; ex parte Attorney-General (CA No 271 of 1999, 29 October 1999; [1999] QCA 443) at [14].

[39]

[4] cf R v Lovell [1998] QCA 36; [1999] 2 QdR 79 at 83.

[40]

[5] [1994] QCA 523; [1995] 2 QdR 186 at 189.

[41]

[6] Solway (CA Nos 164 and 187 of 1995, 22 August 1995; [1995] QCA 374) per Pincus JA.

[42]

[7] (CA No 51 of 1998, 27 May 1998; [1998] QCA 209).

[43]

[8] (CA No 396 of 1998, 24 February 1998; [1999] QCA 41).

At a glance

Court

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Catchwords

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Catchwords

Judgment (43 paragraphs)

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Legislation Cited (6)