R v M [2002] QCA 409

Court of Appeal (Qld)|2002-10-03|Before: Davies JA, Jerrard JA, Helman J

The applicant himself was spoken to about the incident by the police at the time and he denied touching the complainant in any way. He agreed to move from the family house and the complainant then appears to have blocked the memory of the incident out for a number of years until she was about sixteen years old, and then something triggered her recollection. She describes it as "having built a brick wall around it; and then, all of a sudden, the wall fell down". She then started having constant nightmares about it and she told her mother about it then.

The effect on the complainant is set out in some detail in the victim impact statement that was before the learned sentencing judge. It shows that since the assault she had found it increasingly hard to trust people. She had had physical and emotional breakdowns, often resulting in self harm. The memory of what happened continues to torment her, and she suffers from depression, anxiety, and panic attacks, although she has had two and a half years of counselling.

"I have never felt good about myself or anything that I've done. I am hoping that after this court case I will have closure and be able to move on with my life. All I want is to be happy again and not to have to worry about it any more. I know that I will still be receiving counselling for a few years to overcome my problems with

self-esteem, confidence, self worth and depression."

The applicant has a history of having committed offences of this kind both before and after the incident the subject of this application. In 1983 he was convicted on two charges of aggravated assault on a female child in a Western Australian Court of Petty Sessions and fined $100 on each charge. Following that offence he committed this offence, and then he was dealt with in the Goondiwindi District Court on 28 May 1990 on four charges of unlawfully and indecently dealing with a girl under the age of fourteen years. On each charge he was ordered to submit to probation for three years. Following that, in the Moree District Court on 6 September 1993 he pleaded guilty to indecent assaults. The complainant in that case was a nine year old girl and he was sentenced effectively to a term of eighteen months imprisonment.

It is, of course, open to a Court to take into account not only prior convictions, that is convictions of offences committed before the offence in question, but also convictions of subsequent offences.

In R. v. Aston (No. 2) [1991] 1 Qd.R. 375, Cooper J., with whom Kneipp and Shepherdson JJ. agreed, said this:

"Evidence of convictions and the sentences imposed for offences committed both before and after the offence for which sentence is to be imposed is both relevant and admissible when the sentencing discretion is to be exercised. Evidence of later convictions may be used to determine whether leniency ought to be exercised (see R. v. Hutchins (1957) 75 W.N.(N.S.W.) 75). Such evidence may also be used to determine the risk of recidivism, the prospect of rehabilitation, and, the connection, if any, between the offence for which the offender is being sentenced and the later offences for which the offender has being earlier sentenced." (p. 382)

In sentencing the applicant his Honour referred to the two prior convictions for indecently assaulting young girls, remarking that they were relatively minor, but also referred to the applicant's having been convicted of other sexual offences involving your girls. He also noted that the applicant had not committed any offences within the ten years prior to the imposition of the sentence. His Honour referred to the fact that the applicant was at the time in a position of trust and that the incident had caused the complainant serious psychological consequences. It is also, of course, relevant that the offences were accompanied by threats by the applicant.

It is said on behalf of the applicant that the sentence was manifestly excessive. First, that the range for this offence is up to two and a half years imprisonment and therefore the three year sentence is outside the range. We have been referred to a number of cases of the commission of similar offences but there are distinguishing features which show, in my view, that the range is not so limited, and that the head sentence in this case was within an acceptable range for such an offence. We have been referred to the cases of Ford (C.A. no. 140 of 1987), Salcedo (C.A. no. 307 of 1989), and Ward (C.A. no. 54 of 1993). In those cases, it should be noted, the complainants were older than the complainant in this case, who, as I have said, was only four years old. It is also the case that the applicant's history is a relevant consideration when considering the range. I conclude that those cases do not suggest that the head sentence of three years was manifestly excessive.

It is said further that insufficient weight was given to the fact that the applicant had not committed further offences for a number of years. That appears to me to have been taken into account by his Honour in making the recommendation for parole after his serving nine months imprisonment. I do not think there is any substance in the submission that his Honour failed to consider that aspect of the case.

One important feature of the case which cannot be overlooked is the devastating effect that the incident has had upon the complainant, and that feature was taken into account by his Honour in arriving at the sentence he imposed.

Taking all of the circumstances of the case into consideration, I am not persuaded that it calls for the intervention of this Court and I should refuse the application.

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