R v KAC [2010] QCA 39

Judgment (38 paragraphs)

[1]

[1] CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Keane JA. I agree that the application should be refused, for those reasons.

[2]

[2] KEANE JA: On 24 August 2009 the applicant was convicted on his own plea of nine counts of indecently dealing with a child with circumstances of aggravation, three counts of rape, and three counts of possession of child exploitation material.

[3]

[3] On 28 August 2009 the applicant was sentenced to an overall sentence of 12 years imprisonment with an automatic serious violent offence declaration. The learned sentencing judge declared 763 days of pre-sentence custody to be time served under the sentence.

[4]

[4] The applicant seeks leave to appeal against his sentence, contending that the learned sentencing judge made specific errors in his reasoning and, in addition, that the sentence was manifestly excessive. I will examine these contentions after summarising (as briefly as possible) the circumstances of the applicant's offending, the applicant's personal circumstances and the relevant aspects of the reasoning of the learned sentencing judge.

[5]

[5] The offences were committed between 1 September 2006 and 17 April 2007. They involved five children. In relation to three of the children, the applicant took photographs of them focusing on each child's underwear, legs and genitalia. These photographs were taken for his own sexual gratification. He kept 46,442 images on compact discs, and 20,242 images in the hard drive of his computer. He also kept 165 video files. In relation to the other two children his offences were more serious.

[6]

[6] The applicant raped his three year old niece, B, over a four day period in October 2006 while he was looking after her when his brother, B's father, was in hospital. The rapes involved penile penetration of the vagina. The penetration was sufficient to amount to rape but was not full penetration. The applicant also took about 40 indecent pictures of her including photographs of her with his erect penis placed against her buttocks and anus and beside her vagina as well as showing her holding his penis and being vaginally penetrated by it.

[7]

[7] The complainant, N, was an eight year old girl who was left in the applicant's care. He took her with him on a trip in his truck. During that trip he gave her hallucinogens. On his return to his house he indecently dealt with her, and raped her. He bound her hands with silk tape and put tape over her mouth to silence her. Police found pieces of sticky tape on the floor and on the applicant's bed. He also took a number of photographs of these activities.

[8]

[8] The applicant was between 43 and 44 years of age at the time of these offences. He was 46 years old when he was sentenced. He has had two long term relationships and is the father of two children from each of these relationships.

[9]

[9] The applicant has a criminal history but it is of little relevance. In 1981 he was convicted of a number of breaking and entering offences for which he was placed on two years probation. He has also been convicted of a number of traffic and street offences. He has no history of sexual offending and he has not previously been sentenced to imprisonment save for a period of 48 hours in 1986 for driving offences.

[10]

[10] As appears from a report by Dr Richardson, a psychologist, the applicant had endured an unhappy childhood in the course of which he suffered from an unhappy home life and incidents of violent sexual abuse by strangers. He also witnessed his father's attempted suicide. Dr Richardson records that the applicant is amenable to undertaking treatment, but his report is not very enlightening in relation to what caused the applicant's offending.

[11]

[11] The learned sentencing judge observed that the applicant had "gone from being a responsible, loving parent into some depraved monster, preying on children and becoming addicted to internet pornography." His Honour referred to the "catastrophic" consequences of the applicant's offending for his victims and their families. Not surprisingly, the considerations of deterrence and denunciation loomed large in his Honour's discussion of the considerations relevant to sentence in this case.

[12]

[12] His Honour accepted that the applicant had shown remorse and was willing to attend sex offenders' courses in Brisbane.

[13]

[13] His Honour also noted in the applicant's favour his cooperation with the authorities, his plea of guilty and the fact that none of his victims had to be cross-examined at committal.

[14]

[14] In relation to the offences committed against N, the learned sentencing judge said:

[15]

"After you had taken her on a journey in your truck with some of your own children you mistakenly gave her an antidepressant called Talan instead of a travel sickness tablet. This resulted in her hallucinating and becoming disorientated. You took her back to your house, ostensibly to care for her, but when you were alone with her you again photographed her whilst she was bound with tape, including having her hands bound above her head and tape put across her mouth."

[16]

[15] The grounds on which the sentence is challenged are as follows:

[17]

finding that the Applicant photographed one of the complainants whilst she was bound with tape;
concluding that the Applicant's offending was more serious than the offending in the Court of Appeal matter of R v NK so as to justify a higher head sentence;

[18]

failing to give sufficient weight to the fact that the Applicant did not at any time intend to distribute the photographs taken of the complainant children on the internet.

[19]

(ii) The head sentence of 12 years is in all the circumstances manifestly excessive."

[20]

[16] The applicant argues that the learned sentencing judge regarded it as an aggravating factor that the applicant photographed N while she was bound with tape when the factual basis on which the applicant was sentenced did not suggest that she was photographed while bound. But the applicant had agreed that he had bound N's hands above her head and put tape across her mouth to silence her. He also admitted that he took three photographs showing him penetrating N's vagina with his erect penis.

[21]

[17] To the extent that there was no evidence that the applicant had photographed N while she was taped and bound, it is inconceivable that this circumstance materially affected the severity of the applicant's sentence. In R v Burke, Sperling J, with whom Giles JA and Levine J agreed, said:[1]

[22]

"Where the sentence is not manifestly excessive, the appellate court must quash the sentence and re-sentence the offender if - and only if - (a) the sentence imposed below is vitiated by error, and (b) the sentence is more severe than the appellate court would have imposed and, necessarily, would now impose on re-sentencing the offender.

[23]

However ... some refinement is necessary. For example, if there were error in the sentencing process below which cannot have made any material difference to the result, the appellate court would not intervene, even if it would have imposed a less severe sentence were it re-sentencing the appellant."

[24]

[18] In the course of oral argument in this Court, Counsel for the applicant accepted that this slip by the judge does not of itself afford an occasion for the sentencing discretion to be exercised afresh by this Court.[2] As will be apparent, I consider that this concession was properly made.

[25]

[19] It is also true that the applicant did not seek to exploit commercially the photographs he took, but that circumstance does not lessen the criminality of his offences of rape and indecent dealing. These are the offences which attracted the head sentence of 12 years imprisonment.

[26]

[20] In support of the contention that the sentence was manifestly excessive, the applicant refers to the decision of this Court in R v Dickeson; ex parte A-G; R v Dickeson.[3] In that case a sentence of 10 years imprisonment for sexual offences including rape against sisters who were aged eight and six years old was not set aside as manifestly inadequate on an Attorney-General's appeal. The offender was 29 years old and pleaded guilty to an "ex officio" indictment. The offender was said to lack insight. This case is also distinguishable from the present case by reason of the greater extent of the applicant's offending and, more importantly, the greater number of his victims.

[27]

[21] The applicant also refers to the decision of this Court in R v NK.[4] It is said that his Honour erred in treating the applicant's offending as more serious than the offending involved in R v NK. In that case a 27 year old offender pleaded guilty to offences of rape, incest and indecent treatment of his five year old step-daughter. There were two incidents which were about a week apart. On the first occasion, the offences included an unsuccessful attempt at anal intercourse. On the second occasion, the offender penetrated the complainant's anus in four separate incidents; he also forced her to perform oral sex on him. He made videos of this offending and distributed them on the internet on 33 separate occasions. He was thus guilty of contravening the Crimes Act 1914 (Cth) by using the internet to distribute child abuse material. On appeal to this Court the sentence for his crimes under State law was reduced from 15 years to 10 years imprisonment. This Court's sentences of 10 years imprisonment in respect of each of the offences of rape and incest were cumulative upon the sentences imposed for the contraventions of the Crimes Act. The effect of the sentence imposed by this Court in that case was to produce an overall head sentence of 12 years imprisonment with a minimum period to be served of nine years.[5] When that is understood, reference to this case does not suggest that the sentence in the present case is manifestly excessive.

[28]

[22] The applicant also relies on this Court's decisions in R v AAI[6] and R v MBG & MBH.[7] In each of these cases this Court refused to regard lesser sentences imposed for offences involving offending of a grave, but somewhat less serious, character against several young children each under the offender's care as excessive. These were cases of digital rape rather than penile penetration of the vagina. And, in any event, these decisions do not purport to establish the upper end of the range of a proper sentence.

[29]

[23] I am not persuaded that the sentence of 12 years imprisonment was outside the range of a sound exercise of the sentencing discretion. The sentence which was imposed is not manifestly excessive.

[30]

[24] I would refuse the application for leave to appeal against sentence.

[31]

[25] HOLMES JA: Comparison with the authorities cited suggests that this sentence was at the high end of an appropriate range in this case, allowing for the plea of guilty, but I am not convinced that it was beyond a proper exercise of sentencing discretion. Accordingly, I agree with Keane JA that the application for leave to appeal against sentence should be refused.

[32]

[1] [2002] NSWCCA 353 at [83] - [86].

[33]

[2] Baxter v The Queen [2007] NSWCCA 237; (2007) 173 A Crim R 284 at 294 - 295 [60] and 298 - 299 [84] - [85]; R v MAZ [2008] QCA 110 at [19].

[34]

[3] [2004] QCA 78.

[35]

[4] [2008] QCA 403.

[36]

[5] [2008] QCA 403 at [79].

[37]

[6] [2009] QCA 253.