Court of Appeal (Qld)|2012-07-20|Before: Muir and Gotterson JJA and Fryberg J, Separate, reasons for judgment of each member of the Court, Gotterson JA and Fryberg J, concurring as to the orders made, Muir JA dissenting
Muir and Gotterson JJA and Fryberg J, Separate, reasons for judgment of each member of the Court, Gotterson JA and Fryberg J, concurring as to the orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR
INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED
– where
appellant convicted of one count of indecent treatment (count 2), one count of
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE ORINSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED– whereappellant convicted of one count of indecent treatment (count 2), one count ofwilful exposure to an indecent videotape (count 4) and one count of rape(count 5) – where appellant acquitted of attempting to procure anindecent act (count3) – where the complainant was the appellant’sdaughter – where the complainant gave evidence of acts of sexualmisconduct not appearing on the indictment – where appellant submitted thejury should have been warned against propensityreasoning – whereappellant submitted count 3 was inextricably linked to count 4 – whereappellant submitted verdictswere inconsistent – where appellant submittedverdicts were unsafe and unsatisfactory due to inconsistencies in thecomplainant’saccounts and delay – where trial judge directed thejury that consent was not an issue with respect to count 5 as a child under
12
was incapable of consenting under s 349(3) of the Criminal Code –
where that section did not come into force until 5 January 2004 – where
count 5 may have been committed prior to that
date – whether the trial
judge erred in failing to give a direction with respect to propensity
reasoning – whether the
verdicts were inconsistent – whether the
verdicts were unsafe and unsatisfactory – whether the trial judge
misdirected
the jury with respect to consent
APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR
APPEAL – EXTENSION OF TIME – WHEN REFUSED –
where appellant
convicted of one count of indecent treatment (count 2), one count of wilful
exposure to an indecent video tape (count
4) and one count of rape
(count 5) – where appellant sentenced to concurrent terms of
imprisonment of 12 months, six months
and four years respectively with fixed
parole eligibility – where applicant applies for an extension of time in
which to appeal
against the count 5 sentence – where appellant submitted
whether application for extension of time should be granted
Criminal Code 1889 (Qld), s 349(3)
BRS v The Queen (1997) 191 CLR 275
[1997] HCA 47,
considered
HML v The Queen (2008) 235 CLR 334
[2008] HCA 16,
considered
Jones v The Queen (1997) 191 CLR 439
[1997] HCA 12,
considered
KRM v The Queen (2001) 206 CLR 221
[2001] HCA 11,
considered
M v The Queen (1994) 181 CLR 487
[1994] HCA 63,
considered
MacKenzie v The Queen (1996) 190 CLR 348
[1996]
HCA 35, considered
Pfennig v The Queen (1995) 182 CLR 461
[1995] HCA 7, considered
R v AAD [2008] QCA
4, considered
R v BBE [2006] QCA
532, considered
R v Bull [2012] QCA
74, considered
R v Colless [2011] 2 Qd R 421
[2010] QCA
26, considered
R v Kirkman (1987) 44 SASR 591,
cited
R v M [2003] QCA
443, considered
R v MBF [2008] QCA
61, considered
R v NH [2006] QCA
476, considered
R v SAH [2004] QCA
329, considered
R v Tait [1999] 2 Qd R 667
[1998] QCA
304, cited
R v WO [2006] QCA
21, considered
SKA v The Queen (2011) 243 CLR 400
[2011]
HCA 13, cited
Judgment (69 paragraphs)
[1]
The applicant did not challenge those findings in this Court.
[2]
[126] His Honour held that the applicant had shown no remorse. He described it as "outrageous" that a father would force his penis into his daughter's mouth. He accepted that the applicant had been a victim of sexual abuse himself. He took into account that the applicant had "been a good worker", which was generous, considering that the applicant's counsel had said that his work history since finishing school had "been off and on, more on than off". He described the applicant's criminal history as minor and unrelated to the offences before him, which again was generous, considering the domestic violence offence referred to above.
[3]
[127] His Honour noted the applicant's "mental health issues". He presumed those issues were controlled by medication. The only possible basis for that presumption seems to have been that the applicant's counsel told the judge that he had "been attending upon mental health three times per week for about 12 months". The presumption should not have been made. The applicant's current condition and the measures in hand to control it were important matters in assessing his risk of reoffending and the consequent weight which ought to be given to the need for protection of the community. Doubtless because the presumption was in his favour, the applicant did not challenge it in this Court.
[4]
[128] The prosecutor submitted that the range for an oral rape of a child would be between three and four years imprisonment and that to reflect the criminality of the offending as a whole, the sentence should be at the higher end of the range. Counsel for the applicant submitted that the sentence should be "about the three year mark". The judge took into account the fact that the rape was not an isolated offence that was coupled with the other offences. He fixed a parole eligibility date at the halfway point in the four year sentence imposed for the rape.
[5]
[129] In this court the applicant sought to demonstrate manifest excess only by reference to comparable cases.
[6]
[130] The first was R v M.[51] The circumstances of that case were summarised by Chesterman JA in R v Bull.[52] I respectfully begin with his Honour's summary:
[7]
"[51] R v M[2003] QCA 443 was a case in which the offender was probably in his thirties. He was convicted of one count of raping his six year old son and two counts of indecently treating him. He and the child's mother had married in 1990 and separated 10 years later. About a year after the separation the boy was left with the father overnight while the mother attended a wedding. The rape was committed, as here, by penile penetration of the child's mouth into which he ejaculated. The indecent treatment consisted of the father sucking the boy's penis and rubbing his penis on the boy's back and rubbing semen on his back. He was sentenced to three years imprisonment for the rape and two years for each of the counts of indecent treatment. The episodes appeared to have been quite protracted and involved a degree of violence from which the child tried to escape unsuccessfully.
[8]
[52] An application for leave to appeal against sentence was refused. The sentence of three years was described as lenient."
[9]
[131] The victim was aged six at the time of the offending and notwithstanding the violence, suffered no visible injury. All of the offending took place on the same occasion. The applicant was described as a mature man with no prior convictions. He had appealed against his conviction as well as against his sentence, and had shown no remorse. His application for leave to appeal against sentence was dismissed. The sentence of three years imprisonment was imposed for conduct which, barely 12 months before it took place, would have amounted only to indecent treatment of a child under 12 years, punishable by a maximum of 10 years imprisonment, and that factor may have influenced the sentence. This court described it as lenient for an offence of rape punishable by life imprisonment.
[10]
[132] The second comparable case relied upon by the applicant was R v AAD.[53] The victim in that case was the six-year-old adopted daughter of the appellant's de facto wife. The offence comprised one count of digital rape to the vagina following some preliminary indecent dealing. The 32-year-old appellant, who had experienced sexual molestation in his youth, pleaded guilty. He had previous convictions for indecent assault and rape, and for stabbing his wife, for which he had been sentenced to substantial terms of imprisonment. The court expressed the view that the fact that the penetration was digital, not penile, was significant in terms of the gravity of the offence.
[11]
[133] The third case referred to was R v SAH.[54] There the victim was the three year old son of the appellant's partner, who was caring for the boy while his mother was in hospital. At an early stage the applicant pleaded guilty to one count of digital rape; he put his fingers in the boys anus until he started screaming. He was aged 19 at the time and claimed he was sexually abused as a child. His criminal history was described as "not insignificant", though it included no offences of a sexual nature; he had served a period of actual imprisonment and was on probation at the time of the offence. References indicated a reasonable prospect of rehabilitation. The court described the conduct in R v M as "much worse than the conduct here". Having particular regard to the early plea, the youth of the offender and his prospects of rehabilitation, the court set aside a sentence of five years imprisonment with release after 18 months and in lieu, sentenced the appellant to imprisonment for three years, to be suspended after 12 months.
[12]
[134] R v NH[55] was the next case cited by the applicant. In that case it fell to the Court of Appeal to resentence following a partially successful appeal against conviction. The victim was an eight year old girl whose parents were friends of the applicant. At the relevant time the child's father was in prison. The applicant fell to be sentenced for three counts of indecent dealing with a child under 16 and one of rape, committed on three separate occasions. Each count of indecent dealing involved touching the child on the vulva; the rape involved digital penetration of her vagina to the point of hurting her. The applicant threatened to disclose the father's imprisonment if the complainant told anyone what he had done. He was 49 at the time of the offending, he had professional qualifications, he worked as a teacher and he had no previous convictions. He had a history of community service and a good work history, and a number of favourable references were tendered. Notwithstanding the child's age, the jury returned verdicts of indecent dealing without the circumstances of aggravation that she was under 12 or in the care of the applicant and that was the basis on which the applicant was sentenced. A global penalty of imprisonment for 2½ years was imposed.
[13]
[135] Finally, the applicant referred to R v BBE[56], another case referred to by Chesterman JA in R v Bull. BBE was convicted of two counts of digital rape, one count of rape involving penetration with the tongue and one count of indecent dealing aggravated by the fact that the victim was his five year old niece. The offences were committed on four separate occasions and involved penetration of or interference with the child's vagina. The circumstances were described by the court as "most unusual". The applicant was aged 21 and 22 at the time of his offending and met the criteria for a diagnosis of intellectual disability. He had a low IQ and a poor understanding of the nature and consequences of his acts and the impact, although he recognised that his actions were wrong and felt guilt and heightened anxiety about them. He had a history of Special School education and childhood and developmental delay and appeared to be functioning in the mentally deficient borderline range of intelligence at the bottom fourth percentile in the community. A psychologist strongly recommended a comprehensive psychiatric review by a forensic psychiatrist. He noted that the applicant appeared motivated to address his deviant behaviours and to develop strategies to reduce the risk of recidivism.
[14]
[136] The circumstances were consistent with the psychologist's report. The offending came to light when the applicant made admissions to his 17 year old sister after desisting from his pattern of offending; his sister contacted the child's family. The victim had made no complaint and was unable to precisely particularise what had happened. Police interviewed the applicant and the charges turned on his confession. There was an early plea of guilty and the prosecutors stated that the applicant had "offered maximum cooperation". He had no prior convictions and demonstrated "extreme remorse". The offending was, however, premeditated and some force was used to overcome the victim's resistance. Victim impact statements showed that his actions "had ripped the family apart and caused significant distress to the complainant child's immediate and extended family unit". The court held that the sentence imposed at first instance, effectively imprisonment for four years with parole eligibility after 12 months, was in the circumstances of the particular case manifestly excessive. The applicant was resentenced on the rape charges to three years imprisonment suspended after six months with an operational period of five years and on the indecent dealing account to imprisonment for six months with three years probation and a special condition regarding treatment for sex offending.
[15]
[137] R v Bull[57] had not been decided when the present applicant was sentenced. The victim was the 12 year-old daughter of a women with whom the applicant was having a brief affair. The applicant was caring for her while she was ill, her mother having to work. The applicant made the girl suck his penis to the point of ejaculation in her mouth, using a degree of force but no violence. It appears that no complaint was made for nearly two years. The jury acquitted the applicant on two other charges of rape of the same child. The applicant was a 45 year-old disability pensioner without a criminal history. The prosecutor submitted that the range of imprisonment was three to four years. An appeal against the one conviction was dismissed. The sentencing judge noted the serious emotional impact the offence had on the complainant and her mother and the applicant's lack of remorse. This Court held the sentence imposed, imprisonment for five years, was manifestly excessive. It held that the appropriate sentence was between three and four years imprisonment and resentenced the applicant to imprisonment for 3½ years.
[16]
[138] In the course of his sentencing remarks Chesterman JA (with whom White JA and Daubney J agreed) said:
[17]
"[56] Discerning gradations in depravity is a difficult if not impossible task, as is determining a precise level of punishment for each grade. The cases can be no more than indications of available ranges for roughly comparable offending."
[18]
I respectfully agree. In assessing the cases I have borne in mind what was written by this court in R v Colless[58] where "[vaginal] rape accomplished digitally may generally be seen as somewhat less grave than a rape accomplished by penile penetration." While I would not wish to lay down any rule, I think it may also be said that penile rape effected in the mouth of the victim may generally be seen as somewhat more grave than vaginal rape, particularly where there is ejaculation in the mouth or throat.
[19]
"It is necessary to bear steadily in mind that in the absence of error in the sentencing process this Court will only adjust a sentence on the ground that it is 'manifestly excessive' where the sentence is so 'unreasonable or plainly unjust' so as to give rise to an inference that the sentencing discretion miscarried. House v The King(1936) 55 CLR 499 at 504-505."
[20]
[140] In my judgment, particularly having regard to R v M and R v Bull, no such inference could be drawn in the present case. It follows that the proposed appeal would not be viable. Quite apart from the evidentiary considerations referred to above, it is sufficient in the circumstances of this case to refuse the application for an extension of time.
[21]
3. Application for extension of time to apply for leave to appeal against sentence dismissed.
"Those passages, and other statements to like effect, have been regularly approved in appellate courts: see, for example, Gipp v R (1998) 194 CLR 106 at 132-3 and 156-7 and R v Huebner & Maher[2004] QCA 98. Whilst the High Court recognised in KRM that there is no absolute rule that a judge must always given (sic) a propensity warning, fairness to an accused will ordinarily require such a warning to be given, particularly where the jury may make use of propensity evidence for limited purposes in the case before them."
Evidence of uncharged acts, in cases about sexual offences, does present some particular difficulties. Often enough, if evidence of uncharged acts were not admitted, each of the several transactions constituting the charged acts could only be presented as an unreal and not very intelligible event (cf O'Leary v The King[1946] HCA 44; (1946) 73 CLR 566 at 577, per Dixon J). In particular, knowing that a complainant alleged that a particular act occurred as one in an otherwise undifferentiated course of offending by an accused may throw an altogether different light upon what otherwise may seem to be an inexplicable course of behaviour by the complainant in submitting, without protest, to what is alleged to have occurred. I therefore agree with McHugh J that until this Court decides to the contrary, courts should treat evidence of uncharged sexual conduct as admissible to explain the nature of the relationship between the complainant and the accused, just as they have in the past. I agree that this may well mean that trial judges must warn juries of the limited use that can be made of evidence of that kind and that sometimes, perhaps often, they will have to give warnings about propensity reasoning." (emphasis added)