R v MAI [2005] QCA 36

SUPREME COURT OF QUEENSLAND

CITATION: R v MAI [2005] QCA 36

PARTIES: R v MAI (applicant)

FILE NO/S: CA No 257 of 2004 DC No 24 of 2003

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Southport

DELIVERED ON: 25 February 2005

DELIVERED AT: Brisbane

HEARING DATE: 8 February 2005

JUDGES: McMurdo P, Williams JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application for leave to appeal against sentence refused

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – PARTICULAR OFFENCES – SEXUAL OFFENCES – where applicant convicted after trial of three counts of indecent dealing with his 15 year old daughter and sentenced to three years imprisonment on each count concurrently – where maximum penalty for offence 14 years – where offences a single isolated incident without force or threats – where digital penetration – where applicant phoned police a day after the incident on complainant's behalf – where applicant denied complaints in record of interview and showed no remorse – whether sentence manifestly excessive / R v Griinke [1992] 1 Qd R 196, cited R v Hamstead [1999] QCA 33; CA No 433 of 1998, 23 February 1999, followed R v K [2003] QCA 521; CA No 290 of 2003, 20 November 2003, distinguished R v M [2003] QCA 556; CA No 359 of 2003, 11 December 2003, distinguished

COUNSEL: A J Glynn SC for the applicant R G Martin SC for the respondent

SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P: The applicant was convicted on 14 July 2004 after a two day trial of three counts of indecently dealing with his 15 year old daughter whilst she was in his care on 6 April 2002. He was sentenced to three years imprisonment concurrently on each count. He was acquitted of four other similar counts. The maximum penalty on each count was 14 years imprisonment.

2. The applicant's counsel submits that the sentence was manifestly excessive in that it was outside the proper range and that the learned sentencing judge placed too much weight on the seriousness and prevalence of the offence and the need for general deterrence and gave insufficient weight to matters of mitigation.

3. The complainant had lived with older relatives without contact with her father for many years until May 2001. In October that year she commenced to live with him and her adult step-sister and family. In February 2002 she shared an apartment with her father alone and this is where the offences were said to have occurred. The record shows he knew she was a troubled and vulnerable young person when she came to live with him.

4. The learned sentencing judge rightly treated the three offences as a single incident without physical force or articulated threats. The applicant exposed his erect penis to the complainant and made some crude and inappropriate comments. She accepted his invitation and followed him to his bedroom where she lay down on the bed. The applicant rubbed her vagina outside her underpants, moved her underwear aside and performed oral sex on her, penetrating her vagina with his tongue for about ten seconds. He then digitally penetrated her vagina three or four times. She pulled away because it was painful and he desisted. She quickly realised the applicant had mistreated her and asked to phone her sister to complain of his actions. He tried to dissuade her from making a complaint. After a time he relented, but sat near her whilst she spoke to her sister by telephone. He later phoned the police on her behalf and she made a complaint to police that day. The applicant denied the complaints in a formal record of interview and has shown no remorse.

5. The Crown Prosecutor at sentence submitted that a period of imprisonment of up to two years would be within range but it does not follow from that submission alone that the sentence imposed of three years imprisonment was necessarily manifestly excessive.

6. The applicant's counsel emphasises the cases of R v K¹ and R v M.² K pleaded guilty to four counts of indecently dealing with his two step-daughters aged 12 and 14 over an 11 month period. Two counts involved digital penetration of the vagina. K's sentence of 12 months imprisonment and three years probation was not held to be manifestly excessive. That does not make the sentence imposed in this case excessive. There are many distinguishing features. Unlike this applicant, after initially denying the allegations, K contacted police and participated in a record of interview in which he became tearful and distressed and accepted the complainant's allegations. He pleaded guilty by ex officio indictment saving the complainants the trauma of giving evidence and being cross-examined, which the court found was indicative of genuine remorse. There was some delay in K's sentencing and through no fault of his he had the charges hanging over his head for almost two years. He had bought a $5,000 vehicle for one complainant and had been paying regular maintenance for another dependent child. Favourable references were placed before the court together with a psychological report which stated that K at the time of the offences was suffering from depression, anxiety and perhaps post-traumatic stress disorder following an injury sustained in an accident and had a low risk of reoffending. This applicant did not have those very significant mitigating factors.

7. M, too, pleaded guilty, in his case to three counts of indecent treatment of a child under the age of 12. He committed the offences on his eight and ten year old second cousins whilst visiting them on his summer holiday. He fondled the boy cousin's genitals and then committed an act of fellatio but stopped when requested. On another occasion he rubbed his female cousin's labia using his saliva for lubrication. He made contact with her skin rather than her clothing but did not penetrate her vagina. On another occasion, he went into his female cousin's bedroom where she lay on her bed and placed his hand on her bottom on the outside of her clothing, removing it after a few moments when asked. He was sentenced to an effective term of 18 months imprisonment to be suspended after serving four months with an operational period of three years. This Court found that sentence was not manifestly excessive. Like K and this applicant, he had no relevant previous convictions. Unlike this applicant, but like K, he pleaded guilty at a very early stage and cooperated fully with the prosecuting authorities. The complainants' parents urged the court not to send M to prison for personal and family reasons. A psychiatric report recorded that M had himself been sexually exploited by an older cousin when he was about 12 years old and that this exploitation developed to anal intercourse for over eight years. The psychiatrist considered this had had a significant impact on his psycho-sexual development and he was being treated with psychotherapy; M appeared to understand that his offending was wrong, to demonstrate genuine remorse and he was not at significant risk of further offending against children, although the sentencing judge was not fully persuaded of that. M's offending was less serious than that of this applicant. It, too, should be distinguished from this case.

8. The sentence of three years imprisonment imposed here is supported by that imposed in R v Hamstead.³ Hamstead was convicted after a trial of a number of counts of indecent dealing with a child under 16 with a circumstance of aggravation and other related offences and was effectively sentenced to three years imprisonment to be suspended after two years for an operational period of three years. Hamstead contended the sentence was manifestly excessive. The offences primarily involved a ten year old girl and were committed in the presence of her seven year old sister in his caravan. The conduct commenced with him rubbing the ten year old girl's breasts in the presence of her seven year old sister. A few days later his behaviour escalated to licking her vagina and placing his finger and then a cigarette in it, again in her little sister's presence. He took the older girl's hand and placed it on his penis. He also showed the girls an indecent picture. He was 54 and, like this applicant, had no prior criminal history. The court considered that the suspension of the sentence after the period when Hamstead was statutorily entitled to apply for parole eligibility was unlawful⁴ and resentenced him to three years imprisonment, noting that the offence was a serious breach of the obligations of an adult towards young children and lacked any mitigation arising from a plea of guilty or remorse.

9. This case, in my view, demonstrates that the sentence here was within the appropriate range in all the circumstances. The special position of trust between father and daughter was not a factor in Hamstead. This applicant did not, after a trial, have the significant mitigating factor arising from cooperation with the administration of justice. He was a mature man, 53 at the time of the offences and 55 at sentence, who took advantage of his vulnerable 15 year old daughter, penetrating her vagina with first his tongue and then, repeatedly, his finger. The maximum penalty was 14 years imprisonment.

10. I am not persuaded that the sentence of three years imprisonment is manifestly excessive. I would refuse the application for leave to appeal against sentence.

11. WILLIAMS JA: I have had the advantage of reading the reasons for judgment of the President; I agree with all that she has said therein and with the order proposed.

12. MACKENZIE J: I agree that the application should be refused for the reasons given by the President.

Footnotes

1. [2003] QCA 521; CA No 290 of 2003, 20 November 2003. ↩

2. [2003] QCA 556; CA No 359 of 2003, 11 December 2003. ↩

3. [1999] QCA 33; CA No 433 of 1998, 23 February 1999. ↩

4. R v Griinke [1992] 1 Qd R 196. ↩