R v Law; A-G [1995] QCA 444

The respondent is 68 years of age having being born on 30 August 1927. At the time of commission of these offences he was between 35 and 41 years of age. The complainant at the time of commission of the offences was between 7 and 13 years of age. He is the brother of the respondent's wife.

The offences were committed at a farm owned by the complainant's parents during visits by the respondent and his wife, at several residences of the respondent and at a place where, during his school holidays, the complainant worked for the respondent. The first in time was apparently the attempted sodomy which occurred at the farm. It occurred by force, the respondent threatening to hit the complainant if he did not comply. The complainant was able to resist penetration only by contracting the cheeks of his buttocks. He had attempted to run away during the course of this incident.

Then followed continual sexual abuse over the following 6 years which included, as we have said, sodomy on 11 occasions, and also requiring the boy to masturbate him and to perform oral sex on him. The respondent's conduct was often accompanied by violence. When the complainant attempted to resist sodomy by again contracting the cheeks of his buttocks the respondent hit him around the back of the head with his open hand. On one occasion the respondent held a pistol at the complainant's head while sodomizing him and threatened that he would shoot the complainant if he told his parents. The complainant did not tell his parents of the abuse by the respondent because he was too frightened to do so.

The complainant began using Valium and Serapax at the age of 12 and to drink alcohol at 15 years of age. From that time he consumed substantial amounts of alcohol and appears to have become dependent on it. He stopped drinking only in 1990 when his marriage broke up. He is now divorced with 3 children. He was seen by a psychiatrist after he apparently attempted suicide by crashing a motor vehicle. This was shortly after separating from his wife. The psychiatrist was of the opinion that the complainant's alcoholism was a direct consequence, at least in part, of the events which we have described.

This was therefore an extremely bad case of multiple sodomy and other sexual abuse over a long period of time during the whole of which the complainant was a child in the respondent's care. It was accompanied by violence on many occasions, it induced fear in the complainant and it has contributed to serious consequences for his personality and well being.

At the time of commission of these offences the maximum sentence for sodomy was 14 years. Section 208 of the Criminal Code has since been amended with the result that, if the offences had been committed after 30 March 1989, the respondent would have been liable to imprisonment for life. Many of the sodomy offences were committed whilst the complainant was under 12 (s.208(2)(b)(i)); but in any event the complainant was at all relevant times under the respondent's care (s.208(2)(b)(iv)). The relevant sentencing range must be considered on the basis of a maximum sentence of 14 years.

In R. v. Wilson (C.A. No. 287 of 1990), the facts of which are similar to this except for the fact that, in that case, there were only 3 counts of sodomy committed over about a year, a sentence of 11 years was reduced on appeal to 8 years. During the course of his reasons, with which the other members of the Court agreed, Dowsett J. analysed a considerable number of cases involving offences committed during the period, as that case did, in which the maximum sentence was 14 years. Wilson and the other cases analysed by Dowsett J. indicate that, were it not for the mitigating factors to which we are about to refer, the offences in this case required the imposition of a sentence in the vicinity of 9 to 11 years. Of course if the Court were sentencing pursuant to s.208 as it now stands the appropriate sentence would be higher than that.

A substantial mitigating factor in the present case is the respondent's plea of guilty and, more specifically, his admission of the offences and most of the aggravating factors when first confronted by the police. In the end he did not contest any of the allegations which were made against him. This not only saved the cost of a trial, it saved the complainant from the harrowing experience of having to give evidence; and it ensured the respondent's conviction, which may have been in doubt, at least in respect of some of the offences, had the complainant been required to give evidence of events which occurred 30 years ago. For these matters he was entitled to a substantial discount either by reduction of the sentence which would otherwise be imposed or by a recommendation for early release on parole.

Two other matters were advanced as mitigating the sentence which would otherwise be imposed. The first was his age and the unlikelihood of re-offending. The respondent is, as we have already said, 68 years of age. He is still married and with 2 children. It is probably correct to say that, partly because of his age and partly because he has not offended since 1983, it is now unlikely that he will re-offend. Because of this, personal deterrence is not a significant factor in this case though general deterrence is.

The other matter advanced as a mitigating factor is the length of time which elapsed between the commission of these offences and his sentence. The learned sentencing Judge appears to have thought this a relevant factor. The complainant apparently did not make a complaint to anyone about these offences until 1983. In that year the respondent was convicted in the District Court on two counts of indecent dealing with a boy under 14, those offences having been committed in that year. Apparently during the course of investigation of the complaint in respect of those offences the complainant in this case complained to the police about some or all of these offences and told the respondent that he had done so. Inexplicably his complaints were not pursued by the police. The respondent relied and relies on this failure as a mitigating factor in the sentence which now should be imposed. The learned sentencing Judge accepted this submission and took that delay into account, as well as the delay caused by the failure of the complainant to make any complaint before 1983, in the sentence which he imposed.

It is difficult to see why lapse of time between commission of an offence and sentence should be a mitigating factor in sentence unless that delay has resulted in some unfairness to the offender. There are two obvious cases in which that will be so and in which, consequently, it has been said that that unfairness should mitigate the sentence which should otherwise be imposed.

The first is where there is delay between the date of apprehension of the offender, or first indication to him by some person in authority that he is likely to be prosecuted, and the date of sentence, in consequence of which the offender may have had his liberty curtailed or his reputation called in question or, at least, left in a state of uncertainty caused by a failure to prosecute his case more quickly. Duncan (1982) 9 A.Crim.R. 354 is an example of that. There the offender was advised, when he was declared bankrupt in 1979, that his conduct constituted the offence for which he was eventually convicted and sentenced in 1982. So too are Crawley [1981] FCA 102; (1981) 5 A.Crim.R. 451 at 458, Jones and Harris (1989) 41 A.Crim.R. 1 at 19 and Kane [1974] VicRp 89; [1974] V.R. 750 at 767. The rationale for mitigation in these cases is analogous to that for which, in jurisdictions where a right to a speedy trial is constitutionally or legislatively guaranteed, proceedings may be stayed because of such delay. See for example Barker v. Wing [1972] USSC 146; 407 U.S. 514; U.S. v. Marion [1971] USSC 195; 404 U.S. 307; Mills v. R. (1986) 26 C.C.C. (3d) 481. See also Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 C.L.R. 23. R. v. Braham [1994] NTCCA 60; (1994) 73 A.Crim.R. 353, by contrast, is an example of a case in which the offender, because initially a nolle prosequi had been entered against him, probably thought during the subsequent period of delay until his further arrest, that "he had escaped the clutches of the law" and in which in consequence, it was held that the delay should not mitigate the sentence: at 365-6. See also 356. See also R. v. Glennon [1993] VicRp 6; [1993] 1 V.R. 97.

The second is where the time between commission of the offence and sentence is sufficient to enable the Court to see that the offender has become rehabilitated or that the rehabilitation process has made good progress. That factor was referred to by Street C.J. in Todd [1982] 2 N.S.W.L.R. 517 at 519, 520 in a passage cited with approval by the High Court in Mill [1988] HCA 70; (1988) 166 C.L.R. 59 at 64. See also Bell (1981) 5 A.Crim.R. 347 at 351; Quinlivan (Crt of Crim.App.Vic. No. 291 of 1994). Duncan is also an example of this.

Although the respondent does not come within the second case because of his conduct in 1983 it can now be concluded, for reasons we have mentioned, that he is unlikely to re-offend. We have, however, already mentioned that factor in his favour.

The facts here would come within the first case only if the delay from 1983 when the complainant made his complaint to the police and told the respondent he had done so, is likely to have caused the respondent to be left in a state of apprehension until his arrest in mid-1994. It does not appear why in 1983, when the police spoke to the respondent about these offences, they did not then charge him with them or how the respondent felt in consequence of their failure to do so. He may, for example, have thought that when, notwithstanding a complaint by the present complainant, they proceeded to charge him only in respect of the 1983 offence, they did not intend to proceed on these much earlier offences: cf. Braham. If that were the case it is difficult to see how he would have suffered any disadvantage by reason of being sentenced in 1995 rather than in 1983. The burden of proving that this delay should be taken into account in mitigation was upon the respondent.

There may well be other bases for mitigation arising out of lapse of time between commission of an offence and sentence, involving general notions of fairness. With that in mind we turn to the period between the commission of the last of these offences and 1983, a period of approximately 15 years.

The respondent's threat to the complainant that if he told his parents about the offences he would shoot him and the respondent's general cruelty towards the complainant must have made him justifiably fearful of the respondent. At the commencement of this period of 15 years the complainant was only 13. By the time he reached adulthood he was alcoholic caused, at least in part, by the respondent's conduct. We can see nothing which justifies, on the ground of fairness to the respondent, mitigation of his sentence by reason of the fact that the complainant did not make a complaint to the police for 15 years after the last of the offences was committed.

In our view therefore the learned sentencing judge was wrong, in taking into account in mitigation of the sentence which should otherwise have been imposed on the respondent, the time which elapsed between the commission of the last of these offences and the imposition of his sentence, except to the extent that the combined effect of ageing and the absence of any recorded offences since 1983 makes it unlikely that he will now reoffend.

However that factor, together with the plea of guilty and cooperation with the police referred to above, should, in our view, produce the result that the sentences for sodomy which would otherwise have been imposed should be reduced to 6 years only, the term imposed below. But the mitigating factors are fully taken into account, in our view, by the imposition of such head sentences and cannot be used to justify the fixing of an early date on which parole may be considered. We would therefore allow the Attorney's appeal to the extent of setting aside that part of the sentences imposed in which the learned sentencing Judge made a recommendation for release on parole after serving 9 months.