Court of Appeal (Qld)|2008-05-09|Before: de Jersey CJ, Keane JA and Douglas JSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
de Jersey CJ, Keane JA and Douglas JSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPLICATION
TO REDUCE SENTENCE – Where applicant convicted on a number of counts of
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPLICATIONTO REDUCE SENTENCE – Where applicant convicted on a number of counts ofvarious offences – For threecounts of indecent treatment of a child under16 years with the circumstance of aggravation applicant sentenced to 10 yearsimprisonmentwith parole eligibility after three years and four months –Whether head sentence was manifestly excessiveCRIMINAL LAW – APPEALAND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE– APPLICATION TO REDUCE SENTENCE – For theremaining counts applicant was sentenced to five years’ imprisonmentto beserved concurrently – Where the maximum penalty for common assault was oneyear – Whether sentence of five yearsfor three counts of common assaultwas excessive – Whether error should be regarded as material so as torequire the Court
to exercise the overall sentencing discretion anew
Criminal Code 1899 (Qld), s 216, s 572Penalties and
Sentences Act 1992 (Qld), Part 9A
Baxter v R (2007) 173 A Crim R 284
[2007] NSWCCA 237,
consideredR v Benetto, unreported, Supreme Court of Queensland
Court of Appeal CA No 367 of 1997, 2 December 1997 consideredR v
C
ex parte A-G (Qld) [2003] QCA
510, distinguishedR v Fahey & Ors [2002] 1 Qd R 391
(2001) 121 A Crim R 390
[2001] QCA 082,
consideredR v Nagy [2004] 1 Qd R 63
[2003] QCA
175, considered
Judgment (31 paragraphs)
[1]
Price & Roobottom Solicitors for the applicant/appellant
[2]
Director of Public Prosecutions (Queensland) for the respondent
[3]
**[1] de Jersey CJ: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 5 April 2007. He pleaded guilty to the following raft of offences: defilement of a girl under 16 years (two counts, 50 and 51); indecent treatment of a girl under 16 years with a circumstance of aggravation (30 counts, no's 6, 9-13, 15-22, 25-36); indecent treatment of a girl under 16 years (20 counts, no's 7, 8, 14, 23, 24, 37-49, 52, 53); indecent treatment of a child under 16 years with the circumstance of aggravation (seven counts, no's 56-60, 67); sexual assault (six counts, no's 64-66 and 68-70); and common assault (three counts, no's 1, 54 and 61).
[4]
[2] The offences were committed upon nine of the applicant's nieces or friends of nieces, over the period January 1981 to May 1999. The applicant was born on 7 April 1949, so that his age over that period ranged between 31 years and 50 years.
[5]
[3] For counts 57-60, indecent treatment of a child under 16 years with the circumstance of aggravation, being offences committed upon the complainant KL, the applicant was sentenced to the maximum penalty, 10 years' imprisonment. For each other count, the applicant was sentenced to five years' imprisonment concurrently. That ignored the circumstance that the maximum penalty for counts 1, 54 and 61, counts of common assault, was one year's imprisonment, a matter to which I will return.
[6]
[4] While selecting the maximum penalty for the head sentence, the learned sentencing judge said that she was allowing for the applicant's pleas of guilty and level of co-operation - which avoided six trials - by fixing a parole eligibility date after one third of the head term, that is, at 5 August 2010. The applicant had no prior criminal convictions.
[7]
[5] It is not necessary to go into the particular details of the respective offences. The following more general observations suffice for the purposes of this application.
[8]
[6] The offending in the 1980's was largely fondling of the vagina and breasts and digital penetration of the vagina. The gravity of the offences increased in the late 1980's, including interfering with complainants while they were asleep, and while they were together; requiring complainants to masturbate him; and having carnal knowledge of complainants. The serious offences became less frequent in the 1990's.
[9]
[7] The applicant committed some of the offences while his wife was elsewhere in the same premises. He was friendly with the parents of the complainants, so that there was a gross betrayal of trust. He made threats to one of the complainants, and told others that they would not be believed were they to complain. There were in fact some complaints to parents, which were rejected. The offending, overall, was of gross proportion, involving multiple complainants, numerous individual offences (68) committed over a lengthy period - 18 years (while noting that all save three were committed over 11 years). One of the complainants, taken by her Honour to be speaking for all, gave a moving oral account during the sentencing of the disastrous consequential effect upon her life.
[10]
[8] The learned judge referred in addition to the circumstances that the complainants had been cross-examined at the committal; that health difficulties afflicting the applicant would not be greatly exacerbated by his imprisonment; and that the applicant levelled threats at only one of the complainants, and had long term relationships with no more than four of the nine complainants.
[11]
[9] Her Honour said she was adopting the 10 year term to 'reflect the overall criminality of your offending, the totality of your offending behaviour'. Similarly, in selecting the five year terms, which represented the maximum penalty of all those offences (except the offences of common assault), the judge made it clear that she was not proceeding on the basis that those offences were necessarily in the most serious category. She adopted this general approach as an alternative to imposing short cumulative terms.
'When a judge is faced with the task of imposing sentences for a number of distinct, unrelated offences there are a number of options open. One of those options is to fix a sentence for the most serious (or the last in point of time) offence which is higher than that which would have been fixed had it stood alone, the higher sentence taking into account the overall criminality. But that approach should not be adopted where it would effectively mean that the offender was being doubly punished for the one act, or where there would be collateral consequences such as being required to serve a longer period in custody before being eligible for parole, or where the imposition of such a sentence would give rise to an artificial claim of disparity between co-offenders. That list is not necessarily exhaustive. Such considerations may mean that the other option of utilising cumulative sentences should be adopted.'
[14]
**None of those qualifications applied in this case. In particular, because all of the offences occurred before the 1997 amendments to the Penalties and Sentences Act 1992, which introduced Part 9A, the imposition of the 10 year term did not attract an automatic 'serious violent offence' declaration.
[15]
[11] In assessing the appropriateness of the 10 year term imposed in this case, coupled with eligibility for parole after three years four months, the case of R v Benetto CA 367/1997 is of assistance.
[16]
[12] In Benetto, the applicant pleaded guilty to 58 counts involving indecent dealing with eight children, six of whom were under 12 years of age and two of whom were aged between 12 and 16. Most of the counts were of indecent dealing, involving touching, other acts like undressing in front of a child, and showing pornographic computer images. All except one of the offences were committed over a 12 month period, 1995-6. That applicant was 59 years of age, with no prior convictions. He was sentenced to eight years' imprisonment with a recommendation for consideration for parole after three years six months. The Court of Appeal reduced the sentence to six years with a recommendation for consideration of parole after two and a half years. That was apparently on the basis that the sentence imposed did not acknowledge the circumstances did 'not fall at the more serious end of the wide range of circumstances attending offences of this nature, his co-operation with the police, the fact that without this co-operation 25 of the offences would not have been known or charged, his past community service and his unblemished record'.
[17]
[13] In a number of respects, the circumstances of the instant case were much more serious than those of Benetto: in this case the offending persisted over 18 years, whereas the period in Benetto was only 12 months; these complainants were related to the present applicant; and highly significantly, some 13 acts of digital penetration and two of carnal knowledge occurred in the present case, whereas in Benetto, the indecent dealing was limited to such things as touching, undressing and displaying pornographic images.
[18]
[14] Those points of distinction justified the imposition in this case of a substantially higher head term, while noting that unlike Benetto, this applicant has the benefit of a parole eligibility date, after three years four months, whereas Benetto was the beneficiary of a recommendation for consideration of parole after two years six months.
[19]
[15] Counsel for the applicant relied on R v C; ex Parte A-G (Qld) [2003] QCA 510, where the Court of Appeal did not disturb a sentence of three and a half years' imprisonment suspended after 14 months, which had been imposed for 34 counts of indecent dealing with young children by their former parish priest. A number of points of distinction arise.
[20]
[16] In R v C, the maximum penalty was seven years, not 10 years as here. Also, the number of offences was much lower, and the time span - eight years, substantially less than here. In addition, the last of the offences had occurred some 20 years prior to the apprehension of the offender, and he had in the meantime rehabilitated himself, which substantially explained a sentence described by the Crown at the appeal hearing as 'lenient'. Furthermore, the Court considered relevant that the offender had been publicly humiliated. Those features aggregate to put R v C into a substantially different position from the instant case.
[21]
[17] In my view, the 10 year term with the parole eligibility imposed here, was not a manifestly excessive penalty.
[22]
[18] As mentioned, the maximum penalty for the three counts of common assault, counts 1, 54 and 61, was one year's imprisonment at the relevant times. These counts involved grabbing the complainant KL by the shoulders and telling and warning her that he would hurt her sister if she did not want him to do various things to her (count 1); grabbing the complainant IL by the arm (count 54); and holding the complainant KL very tightly and putting his hand on her head and trying to force it downwards, at a time when he was forcing her to masturbate him (count 61).
[23]
[19] The five year terms imposed in respect of those counts obviously cannot stand. Having regard to her Honour's otherwise careful approach, and her detailed explanation for her adoption of the overall 10 year terms, the errors in respect of counts 1, 54 and 61 should not be regarded as 'material' so as to require this Court to exercise the overall sentencing discretion anew. See Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284, 294-5. As pointed out for the respondent, 'the errors related to the maximum penalties for comparatively trivial offences where the penalties imposed were to be served concurrently with many very much longer sentences'.
[24]
[20] In respect of those counts, the five year term should be set aside, and terms of six months substituted in lieu.
[25]
[21] There is also need for amendment of the indictment. Provided no injustice will be done, the Court can at this stage permit the amendment of the indictment. See s 572(3) of the Criminal Code and R v Fahey & Ors [2001] QCA 82; [2002] 1 Qd R 391, 398-9.
[26]
[22] Section 216 of the Code, prior to 3 July 1989, only concerned girls, not children. Under s 572(1), counts 2-49 and 52 and 53 should therefore be amended by deleting the words 'a child' wherever they appear, and substituting the words 'a girl'. In that period, the circumstance of aggravation applied to girls under 14 years, not 12 years, although of course girls under 12 are necessarily within the ambit of the circumstance of being under 14 years of age. Accordingly, each of those counts should also be amended by deleting the numeral '12' wherever it appears and substituting the numeral '14'.
[27]
[23] I would grant leave to appeal against the sentences, and allow the appeal to the extent of the Court's making the following orders:**
[28]
That the penalty of five years' imprisonment imposed in respect of each of counts 1, 54 and 61 be set aside, and in lieu thereof, the appellant be imprisoned for six months, those terms to be served concurrently with all other terms;
[29]
that the indictment be amended pursuant to s 572(1) of the Criminal Code by deleting the words 'a child' wherever they appear in counts 2-49 and 52 and 53, and substituting in lieu thereof the words 'a girl', and by deleting the numeral '12' wherever it appears in those counts and substituting in lieu thereof the numeral '14'; and
[30]
**[24] Keane JA: I agree with the reasons of the Chief Justice and with the orders proposed by his Honour.
[31]
[25] Douglas J: I also agree with the reasons of the Chief Justice and the orders proposed by his Honour.**