R v GAE; ex parte A-G

SUPREME COURT OF QUEENSLAND

CITATION: R v GAE; ex parte A-G (Qld) [2008] QCA 128

PARTIES: R v GAE (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)

FILE NO/S: CA No 334 of 2007 / DC No 2494 of 2007

DIVISION: Court of Appeal

PROCEEDING: Sentence appeal by A-G (Qld)

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 30 May 2008

DELIVERED AT: Brisbane

HEARING DATE: 28 April 2008

JUDGES: Holmes and Fraser JJA and Douglas J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal dismissed

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where defendant sentenced to six and a half years on a plea of guilty for one count of rape, five counts of indecent treatment of a child under 16 with aggravating circumstances, and four counts relating to child exploitation material – where aggravating circumstances were that the two victims were under 12 years, and were the lineal descendants and under the care of the defendant – whether sentence was manifestly inadequate / R v Bielefeld [2002] QCA 369, considered / R v C unreported, Queensland Court of Appeal, CA No 262 of 1991, 3 March 1992, considered / R v D [2003] QCA 88, considered / R v H; ex parte Attorney-General [1993] QCA 240; CA No 144 of 1993, 23 June 1993, considered / R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24, considered / R v Wharley [2007] QCA 295, considered

COUNSEL: M J Copley for the appellant / A P Gundelach for the respondent

SOLICITORS: Director of Public Prosecutions (Queensland) for the appellant / Agnew D’Arcy Legal for the respondent

HOLMES JA: On 6 November 2007, the respondent was convicted on pleas of guilty of one count of rape of his granddaughter, L; four counts of indecent dealing with the child, with aggravating circumstances (that she was under 12 years, was his lineal descendant and was under his care); one count of indecent dealing with another granddaughter, J, with the same aggravating circumstances; and four counts relating to child exploitation material: one of making it, two of distributing it and one of possessing it. He was sentenced to imprisonment for six and a half years for the rape, three years imprisonment in respect of the indecent treatment counts, two years imprisonment in respect of the making and distribution of child exploitation material counts and one year’s imprisonment for the possession of child exploitation material. All sentences were concurrent, and a parole eligibility date was fixed at 6 January 2010 (after two years and two months). The Attorney-General appeals against the sentence on the ground that it is manifestly inadequate.

The offences

The respondent was aged between 64 and 67 at the time of the offences, which were charged as occurring over various periods between 14 October 2003 and 17 November 2006. The older of his granddaughters was born on 10 April 2002 and the younger on 14 October 2003. The respondent occasionally looked after them when their parents were at work. The offences came to light when he engaged in internet chat with a police officer posing as a woman with an interest in paedophilia and incest. Their conversations, using an instant messenger service, took place over three days, on 6, 15 and 16 November 2006. During those conversations the respondent confided in the officer that he had “been interested in family and kids on and off since [his] uncle started with [him] at seven”.

On 6 November, the respondent used the messenger service to show the police officer some pictures of his grandchildren. Two of the photographs showed a naked child, but there was nothing very revealing about them, and they did not give rise to any charge. On 15 November the respondent displayed eight images of the two children in some of which they were naked or only partially clothed; some of the poses were sexually suggestive, although no sexual organs were revealed. The police officer was able to save the images, which founded the first of the counts of distribution of child exploitation material, on her computer. On 16 November 2006 the respondent displayed to the police officer five images, all focusing on the vulva of older children, not his grandchildren. That gave rise to the second of the distribution of child exploitation material charges.

Later on 16 November, a search warrant was executed at the respondent’s house. A large number of indecent pictures of the respondent’s grandchildren was found on his computer and digital camera. One in particular depicted the respondent’s flaccid penis positioned fractionally within the outer labia of one of the girls, then a baby. (Her mother estimated, looking at the photograph, that she was between seven and 12 months of age at the time.) That photograph gave rise to the rape count. Other photographs showed the respondent’s penis, adorned with a substance he said was yoghurt or moisturiser (presumably intended to look like ejaculate), close to the baby’s face and hand. Many of the photographs showed the girls’ pudenda. The positioning of the children for the purpose of taking the photographs gave rise to the five counts of indecent treatment. There were also some video files, not said to concern the respondent’s grandchildren, found on the respondent’s computer, one of which depicted a child approximately three years old being penetrated by an adult male penis and another an adult male rubbing the vaginal opening of a child of similar age. Collectively, the pictures and files were the basis for the charge of possession of child exploitation material, while the taking of the photographs of the respondent’s granddaughters constituted the charge of making child exploitation material.

The respondent was interviewed by police and made a number of admissions, including that he had taken the photographs of his grandchildren. He said that he had not sent the images to anyone but had displayed them online on the instant messenger service, thinking, wrongly, that those who viewed them could not save them. He had also downloaded similar photographs of other children from internet sites.

The children were examined by a medical practitioner, who found nothing physically abnormal in either girl. Both were interviewed, but neither apparently had anything to say about the events; unsurprisingly, given that at the time they were spoken to, they were, respectively, four and a half and three years old and they were younger still when the photographs were actually taken. Both of their parents provided victim impact statements expressing their disbelief, horror and distress at what had occurred and describing the strain put on them as individuals and on their relationship.

The respondent’s circumstances

At the time of sentence, the respondent was 68 years old and had no previous criminal history. He had early indicated his intention to plead guilty; the matter had been committed for sentence from the Magistrates Court. He had prepared and sent a letter of apology to his son and daughter-in-law; it recognised, and expressed his remorse for, the wrong he had done and the harm it had caused. (They, understandably, were not willing to receive it.) The respondent had a number of health problems. He had previously suffered from transient ischaemic attacks, which had forced his retirement at 63 from his employment as a building inspector, and was at the time of the sentence awaiting coronary angiography for suspected myocardial ischaemia. He also suffered from severe osteoarthritis in his hips.

The respondent had been twice married, his second marriage being of some 25 years duration at the date of sentence. In 2002 his stepson was hit by a train and killed, causing the respondent and his wife considerable grief and exacerbating difficulties already existing in the marriage. His wife had become an alcoholic. After his arrest, the respondent’s general practitioner referred him to a psychologist, Dr Breyder, who treated him over the 10 months leading up to his sentence. He was, Dr Breyder reported, “very compliant with therapy”. She commented on his poor social and communication skills, low self-worth and self-confidence and feelings of failure. The respondent was also assessed by a forensic psychologist, Dr McCulloch, who considered that he had been suffering from depression exacerbated by his early retirement, compelled by ill-health. Both psychologists offered a similar analysis of the context of the offences: the respondent had resorted to the use of chat rooms to escape from his boredom, depression and the lack of intimacy in his marriage. He had used the photographs of his granddaughters as a kind of currency in his online interchanges.

The sentencing judge’s comments

The learned sentencing judge clearly and comprehensively identified the matters relevant on the sentence. He outlined the immediate and wider consequences of the offending: the impact of the respondent’s conduct on his family and his involvement, by exchanging pornographic material, in the larger industry of child exploitation. He said that he had taken into account the fact that there was some overlapping between the conduct which formed the basis for indecent treatment counts and the making and possession of child exploitation material charges. There was no physical injury to the complainants and, so far at least, no proof of psychological damage. The degree of penetration involved in the rape was minimal. But it was necessary that the head sentence reflected the real criminality of the offences: “the most serious breach of trust by a grandfather of his grandchildren”.

The learned judge referred to the respondent’s lack of criminal history and ill health, his remorse and early plea of guilty, his excellent work history and the tragedies he had suffered in the form of his stepson’s death and his wife’s descent into alcoholism. He alluded to the precipitating factors referred to by the two psychologists. Accepting that the respondent had resorted to internet activity to escape reality, his Honour observed, in that context, that he had “in order to contribute collective data …. preyed upon [his] granddaughters”. Important factors in sentencing were deterrence and the protection of children.

Submissions on the appeal

Counsel for the Attorney-General identified no error of principle in the learned sentencing judge’s reasons. Rather, he contended that the head sentence of six and a half years for the rape count taken alone was inadequate, or, alternatively, that the sentence failed to reflect the gravity of the offending taken as a whole.

Counsel referred to three cases to support his argument as to the inadequacy of the sentence for the rape: R v C,¹ R v D² and R v Bielefeld.³ In R v C, the applicant was convicted of rape after a plea of guilty, and was sentenced to eight years imprisonment with a recommendation for consideration for parole after two years. He had raped the nine year old daughter of his de facto partner, holding the child down for the purpose. He initially denied the girl’s accusation. His relationship with his partner had commenced before her birth and he had taken the role of the child’s father throughout her life. The court described the child’s “continuing distress” as an aggravating factor. There were some mitigating factors: the applicant was of previously good character; he had suffered from a post-traumatic stress syndrome; and he had demonstrated remorse and shame in a practical sense by transferring his house to his de facto wife and making an early plea of guilty. The Court said that the sentence was not outside the range for offences of the kind, that was to say, “[rape] of a young child by a man in a quasi‑parental relationship with her”.

In R v D, the applicant sought leave to appeal against concurrent sentences of three years imprisonment and 12 years imprisonment, imposed respectively for offences of deprivation of liberty and rape of a neighbour’s five year old daughter. The child’s mother had noticed she was missing from her front yard where she had been playing, went into his house and found him in a bedroom holding down the child, who was naked, and touching her vaginal area. It was impossible to establish exactly what had happened to the little girl: she said only that she had not answered her mother’s calls because the applicant had threatened to punch her. Injuries to her vaginal area were found: her hymen was bruised and haemorrhaging in a way consistent with digital rather than penile penetration. After the offence the child had difficulty sleeping and became wary and distrustful of strangers. There was a number of psychiatric and psychological reports about the applicant, who was said to suffer from anti-social personality disorder and substance abuse. He was likely, on release from custody, to commit further offences, possibly sexual offences, under the influence of alcohol and marijuana. The Court described the case as a very serious one, involving the abduction and harming of the child, but nonetheless allowed the applicant’s appeal, reducing the sentence for rape to 10 years imprisonment.

In R v Bielefeld, the applicant pleaded guilty to abduction, sodomy and indecent assault. He was sentenced to imprisonment for eight years for the sodomy, with a declaration that the conviction was one of a serious violent offence, and to two years imprisonment for the other offences. The applicant was 19 years old at the time of the offences, and was on probation for dishonesty offences. He had offered the nine year old complainant, whom he encountered in a state forest, a lift home on his motorcycle, but took her past her house into the bush where he assaulted her. He sodomised her and placed a finger in her vagina; while doing so, he placed his hand over her mouth to stop her from screaming, making it difficult for her to breathe. He pushed her to the ground before leaving on his motorcycle. She made her way home in a state of great distress, and afterwards suffered, predictably, a loss of confidence and trust, anxiety and nightmares. On appeal, it was argued that the violence used in committing the offences did not warrant the adding of a serious violent offence declaration. However, the Court observed, because the complainant was a young child, the force necessary for the applicant to achieve his object was not great. Taking into account the child’s age, her abduction, the fact that she was “subjected simultaneously to suffocation and violation in both anus and vagina” and the effects of the events on her, the declaration was justified. The application for leave to appeal was dismissed.

Counsel for the Attorney-General on this appeal made these points in his second argument, that the head sentence was inadequate to reflect the overall criminality involved. The respondent had not only committed rape on his baby granddaughter but had recorded it. The instances of indecent treatment were made more serious by the intention of sharing the photographs he had taken with others on the internet. The later distribution of child exploitation material to a recipient who was a stranger to him contributed to the satisfaction of the demand for such material and in a broader sense encouraged the corruption of children. In that context, counsel referred to this passage from R v Jones:⁴

“The production of child pornography for dissemination involves the exploitation and corruption of children who are incapable of protecting themselves. The collection of such material is likely to encourage those who are actively involved in corrupting the children involved in the sexual activities depicted and who recruit and use those children for the purpose of recording and distributing the results. The offence of possessing child pornography cannot be characterised as a victimless crime. The children, in the end, are the victims.”⁵

Reference was also made to R v Wharley⁶ for the proposition that the fact that the relevant images were of young children was an aggravating factor.

Counsel for the Attorney-General contended that the proper sentencing range in this case lay between eight and ten years imprisonment, and proposed, specifically, a sentence of nine years imprisonment. The Court might arrive at that result by imposing one sentence for the rape and another, cumulative sentence for the distribution of child exploitation material; or, alternatively, impose the higher head sentence to reflect the overall criminality of the rape exacerbated by the other offences involved.

Counsel for the respondent argued that the sentence was properly within range for the conduct involved, relying on the case of R v H; ex parte Attorney-General.⁷ The Attorney-General had appealed against a sentence of four years imprisonment entirely suspended in respect of offences of assault occasioning bodily harm and indecent assault, consisting of the penetration of the vagina of a child about two with an object other than the respondent’s penis. (The charge pre-dated the changes to the Criminal Code 1899 (Qld) which would have defined that conduct as rape). The child was the daughter of the respondent’s de facto wife; her mother returned home to find her bleeding. The respondent initially denied responsibility, but on medical examination the child was found to have a laceration of the vagina and perineum which required seven stiches. She also had a bruise under one eye which the respondent said he had caused by slapping her in the face. The Court, after reviewing cases of sexual interference with young children concluded that the suspension of the sentence was not justified and that the appropriate sentence was one of four years imprisonment without recommendation.

Discussion

The first of the submissions, that the rape ought, per se, to have attracted a higher penalty, seems, with respect, uncompelling. Each of R v C, R v D and R v Bielefeld⁸ involved penetration of a conscious and struggling child. R v D and R v Bielefeld*,* in particular, involved abduction and significant physical injury. The facts of the rape in the present case, while appalling, are of an entirely different order from those cases: the respondent positioned his flaccid penis against the genitals of an oblivious infant. There were not the features of infliction of pain and fear, overcoming the will of the victim and physical domination which are more commonly characteristic of rape cases, and which were present in those cases. (Nor, for similar reasons, was the case of R v H, referred to by the respondent’s counsel, of any great assistance.) I do not think that the sentencing range for which the Attorney-General contends in reliance on those cases is applicable in the present case, which is of a very different kind.

Here the real criminality lies in the respondent’s cynical abuse of his position of trust as the children’s grandfather to produce pornographic material and, more generally, in the corrupting effect of material of that kind. It is artificial to treat the act constituting the rape as distinct from the respondent’s other conduct, for example, putting his penis near the mouth of one of the children in order to photograph the result. The learned sentencing judge’s approach, in my view, was entirely appropriate:

“[o]ne has to look at the overall criminality, not just rape by itself, or indecent treatment, or making or distributing exploitation material. The head sentence must reflect the most serious breach of trust by a grandfather of his grandchildren.”

The real question is whether that conduct, taken as a whole, was adequately met by a sentence of six and a half years imprisonment with parole eligibility after one third. The sentencing judge was faced with a difficult task in arriving at a proper sentence, particularly given the lack of similar cases (for which one can only be thankful).

The propositions quoted from R v Jones and R v Wharley are, I think with respect, beyond argument. And although the children’s unconsciousness of their exploitation meant that they did not suffer directly from the sexual acts involved as the victims in R v C, R v D and R v Bielefeld did, that unconsciousness produced a vulnerability in the form of their inability to recognise and disclose the abuse which itself gave a greater importance to deterrence. The respondent’s abuse of his grandchildren was properly to be met with a salutary sentence. But while an egregious and abhorrent breach of trust, it must be recognised that it did not involve violence, any attempt at sexual intercourse or any physical injury to the children. It was also necessary for the learned sentencing judge to take into account a number of mitigating factors: the respondent’s very early plea of guilty, his previous good character, his remorse, his psychological difficulties and the increased hardship his age and poor health would cause him in serving a term of imprisonment. Allowance could be made for those factors by reducing either the head sentence or the period to be served before eligibility for parole, or both.

In considering the adequacy of the sentence for the offending in toto, one cannot, then, confine oneself to scrutiny of the head sentence; it is necessary to consider both head sentence and eligibility date. The early guilty plea might of itself have attracted eligibility for parole after a third of the sentence had been served; but allowance had also to be made for the additional matters in mitigation to which I have referred. There is no reason to suppose that his Honour did not do so, framing the sentence accordingly; by reference both to its entire term and to the minimum which the respondent had to serve before parole eligibility. Taking the sentence as a whole in that way, and having regard to the already-mentioned factors affecting both culpability and mitigation, I do not think that it can fairly be regarded as inadequate.

I would dismiss the appeal.

FRASER JA: I agree with the reasons of Holmes JA, which I have had the advantage of reading.

The sentencing judge appropriately emphasised the need for general deterrence and the protection of children and accurately described the respondent’s offending as despicable and disturbing.

The rape offence, for which the sentencing judge imposed a head sentence of six and a half years, involved a gross breach of trust by the respondent towards his very young and vulnerable grandchild. Serious as this offence is, it is nevertheless not to be compared with the decisions cited on behalf of the Attorney-General,⁹ in which longer sentences were imposed for even worse offending. Those offenders forcibly raped children who were acutely conscious of and resisted the attacks on them. The complainants in those cases inevitably suffered serious psychological harm and other adverse consequences, including some instances of physical harm. In this case, there was only a very slight degree of penetration, it was not alleged that the respondent used force, and there was no suggestion of physical harm. Psychological damage cannot be ruled out, but there is presently no evidence that any has been sustained.

It is unquestionable that the overall criminality of the respondent's conduct was seriously increased by his recording his offences and his distribution of child exploitation material, but it is clear that those and all of the other relevant factors were taken into account by the sentencing judge.

It was not submitted on behalf of the Attorney-General that the sentencing judge failed to take into account any relevant considerations or made any other error of principle. The sentencing judge had an extremely wide discretion as to the appropriate sentence in this exceptional case.¹⁰ I am not persuaded that the sentence is manifestly inadequate such as to evidence error in the exercise of that discretion.

I would dismiss the appeal.

DOUGLAS J: The sentencing judge drew attention to the serious breach of trust involved in the respondent’s treatment of his grandchildren, his distribution of photographs of them on the internet and the damage he had caused to the family, including his son and daughter-in-law. Those and other relevant features of the case, including the mitigating circumstances identified by his Honour, are referred to by Holmes JA whose reasons I have had the advantage of reading and with which I agree.

In assessing the overall criminality of the respondent’s conduct, the learned sentencing judge did not err in principle in respect of the matters he took into account. Hence, the issue whether the sentence he imposed should be increased turns on whether it was manifestly inadequate.¹¹ Even if that were not the appropriate test to apply,¹² then I cannot persuade myself that there is good reason to interfere with the sentence or that there is a reason which would not otherwise be arbitrary or the “bare statement of a conclusion”.¹³

If there is more scope for this Court to establish an appropriate sentencing range where no comparable case has come before us earlier,¹⁴ I still find it difficult to justify a sentence in the range of 8 to 10 years contended for by the Attorney-General. His submissions would equate this offence with much more serious offences of rape involving forced penetration and real physical injury to unwilling and aware youthful complainants. The additional features arising from the respondent’s breach of trust and the associated charges of the production, possession and distribution of child exploitation material seem to me to have been recognised appropriately by his Honour’s sentence when one compares it with the sentence imposed in R v H; ex parte Attorney General¹⁵ referred to in Holmes JA’s reasons where a four year term of imprisonment was imposed in respect of an assault with, unlike this case, significant physical consequences for the infant complainant. The earlier decisions discussed in that case lead to the same conclusion.

While one can speculate that the grandchildren may suffer psychologically from increased stress within their family or if they ever discover what happened to them at the hands of their grandfather, there is no evidence of such damage yet, something noted by the learned sentencing judge.¹⁶

Six and a half years imprisonment is a significant sentence, capable of deterring and denouncing this behaviour, while reflecting the other matters of mitigation that the sentencing judge was also obliged to take into account. The fortunate lack of comparable sentences makes it more difficult to determine whether this sentence fell within an appropriate range but I am unable to satisfy myself logically, by a transparent process of reasoning, that a sentence of this order is inappropriate for these offences or that the particular term of nine years advocated for the Attorney-General is one that was so obviously more appropriate than the sentence actually imposed as to require it to be substituted. There does not seem to me to be an error in point of principle,¹⁷ nor am I able to conclude that the sentence imposed by his Honour was outside the "sound exercise of the sentencing judge's discretion".¹⁸

Accordingly, I agree with the order Holmes JA proposes.

Footnotes

1. Unreported, Queensland Court of Appeal, CA No 262 of 1991, 3 March 1992, considered. ↩

2. [2003] QCA 88. ↩

3. [2002] QCA 369. ↩

4. (1999) 108 A Crim R 50. ↩

5. At p 52. ↩

6. [2007] QCA 295. ↩

7. [1993] QCA 240; CA No 144 of 1993, 23 June 1993. ↩

8. [2002] QCA 369. ↩

9. R v Casey (CA 262/1991); R v D [2003] QCA 88; R v Bielefeld [2002] QCA 369. ↩

10. R v Melano, ex parte Attorney-General [1995] 2 Qd R 186 at 189. ↩

11. R v Melano; ex parte Attorney-General [1995] 2 Qd R 186, 189. ↩

12. See the discussion by McHugh J in York v The Queen (2005) 225 CLR 466, 474-475, [24]-[28] but cf. R v Katia; ex parte A-G (Qld) [2006] QCA 300 at [20] and R v Edwards; ex parte Cth DPP [2008] QCA 85 at [26]. ↩