R v NH [2006] QCA 476

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Director of Public Prosecutions (Queensland) for the respondent

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[1] THE COURT: The applicant faced trial on four counts of rape, each involving allegations of digital penetration. He was found guilty on two of those counts, but on the remaining counts the jury returned verdicts of the less serious charge of indecent treatment of a child under the age of 16. The applicant was sentenced to imprisonment for three years on all counts. In August 2006, this Court set aside the conviction and sentence on one of the rape charges and substituted a verdict of indecent dealing with a child under 16.[1] In light of that result, the applicant and respondent were invited to, and did, make further submissions on sentence on all four counts.

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[2] The applicant's counsel submitted that he now should be sentenced on the basis that on three occasions he had touched the complainant child, under her clothes, on her vulval area, and on a fourth occasion had digitally penetrated her. It was contended that on the basis of that more limited offending, a sentence of two years imprisonment should be substituted. Counsel for the Crown, while not cavilling with the new factual basis for sentence, argued that the conviction of a lesser offence on one count did not materially alter the circumstances so as to require a reduction of the sentence.

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[3] The complainant was eight years old when the offences were committed. The applicant was a friend of her parents, and around the time of the offending had been providing some assistance to her family because her father was in prison. The offences happened over a three week period. The first offence, of indecent dealing, occurred at the end of March 2004 when the child was playing computer games and her "uncle", as she called him, put his hand under her clothes and touched her. The next indecent dealing happened when the applicant took the child to a local oval for an athletics competition. While alone with her at the rear of a vehicle, he pulled her pants down and touched her vulval area.

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[4] The remaining two offences occurred on a single day. The indecent dealing occurred after the child had used the toilet. She had emerged to wash her hands when the applicant, as he had done on other occasions, opened her pants up and touched her vulva. Later that day he had brought her inside the house from the yard and pulled her pants down. He put his hand in her "private bit", in such a way as to make it hurt, and touched her bottom. At that time he said that she was not to tell her mother or he would tell everyone that her father was in prison.

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[5] A paediatrician was called to give evidence at the trial. He said that the child's hymen was wider than usual for a child of her age. He had observed a bump consistent with a scar on the hymen and some fine scarring on the posterior fourchette. The trauma causing the scars was consistent with digital penetration, and was likely to have caused pain to the child.

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[6] The applicant was 51 years old at the date of the sentence and was married with three children. His wife had a bone marrow disorder. He had a number of educational and professional qualifications, including a Doctorate of Philosophy, and was working as a teacher at the time of his arrest. He had no previous convictions and a number of references was tendered on his behalf. The learned sentencing judge noted in the applicant's favour his good work history and history of community service, and she took into account that his wife was ill. Against those factors, however, the offences were not isolated, and they took place at a time when the child was vulnerable because her father was in gaol and her mother was dependent on the help of others. The learned judge imposed the three year sentence, already referred to, on all four counts.

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[7] The setting aside of one of the rape convictions and the substitution of a conviction of indecent dealing requires a re-exercise of the sentencing discretion. The jury, when it returned the lesser verdicts of indecent dealing, did so without any circumstance of aggravation, either that the child was under the age of 12 or was in the care of the applicant. Consistently with those verdicts, this Court has substituted a verdict of indecent dealing with a child under 16 simpliciter, in lieu of the rape conviction. The maximum sentence for that offence is 14 years imprisonment, as opposed to life imprisonment on the rape conviction which it replaced. Given that significant change in available penalty for one count, and given that the original sentence imposed was a global one, it is appropriate to grant leave to appeal and to re-consider the sentence on all counts.

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[8] There seems to be little appellate authority on sentencing for rape consisting of digital penetration, particularly where it occurs outside a context of protracted or severe sexual abuse. The applicant relied on four decisions: R v MAI[2], R v SAH [3], R v B[4], and R v W[5]. The first involved digital penetration charged as indecent dealing, the second digital penetration charged as rape. The remaining two cases were raised as illustrative of sentences for indecent dealing by non-penetrative touching. In R v MAI, the applicant was convicted after a trial of three counts of indecent dealing with his daughter. On a single occasion he had rubbed her vaginal area, penetrated her vagina with his tongue and then digitally penetrated her vagina three or four times. The applicant was 53 at the time of the offences and his daughter was 15. He was sentenced to three years imprisonment on three counts of indecently dealing with his daughter. An application for leave to appeal against that sentence was refused. He had no prior criminal history. The special relationship of trust between father and daughter was, of course, a very significant factor.

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[9] In R v SAH[6] the applicant was convicted of rape on a plea of guilty: he had inserted a finger or fingers into the anus of a three year old boy. The child's mother was his partner and he had been caring for him while she was in hospital. The applicant was sentenced to five years imprisonment with a recommendation for parole after 18 months following his plea of guilty. He was 19 years old at the time of the offence. He had a significant criminal history for assault and property offences and had twice served short sentences of imprisonment, but that history did not include any sexual offences. He was on probation at the time the offence was committed.

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[10] This Court reviewed a series of cases involving digital penetration decided before the legislative change which made such conduct rape, where sentences had ranged from 12 months to three and a half years imprisonment at the upper end of the range; the cases attracting the higher penalties involved digital penetration in conjunction with more serious or more numerous instances of sexual abuse. The Court in SAH took into account the applicant's early plea of guilty and his youth, together with the facts that his references indicated reasonable prospects of rehabilitation, that it was a single offence and that the applicant himself had allegedly been sexually abused as a child. The sentence was set aside and a sentence of three years imprisonment suspended after 12 months with an operational period of three years was substituted.

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[11] In R v B the applicant was convicted after a trial of placing his hand on the vaginal area of his stepdaughter, who must have been about nine, on two separate occasions while she was sleeping. On the second, he asked to perform cunnilingus upon her, offering her $10 in exchange. The applicant had some minor criminal history. A sentence of 18 months imprisonment was reduced on appeal to 12 months imprisonment.

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[12] In R v W[7] the applicant was convicted after a trial of three counts of indecent dealing with a complainant about eight years old. On three separate occasions he had rubbed her in the area of her vagina both inside and outside her pants. He had no prior criminal history and was 69 years old. Apart from the offences he was regarded as a man of exemplary character with a long and useful working life. A sentence of 12 months imprisonment was reduced to six months imprisonment suspended after two months, with an operational period of two years.

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[13] In the present case, having regard to a number of factors - that the child was only eight, that the applicant was in a position of trust (although not charged as a circumstance of aggravation and thus not giving rise to the higher penalty), that he threatened to tell others about her father's imprisonment if she disclosed what he had done, and that the offences occurred on three different occasions - a significant sentence was warranted. On the other hand, the applicant's previous good character and exemplary working history were powerful factors in mitigation. Approaching the matter on a global basis, as the judge at first instance did, a sentence of two and half years imprisonment should be imposed on each count. However, there is this difference in how the counts must be approached on the re-sentencing process. The sentence on count 3, as a new sentence imposed for a new offence, will date from its imposition by this Court. For that reason, the entire period the applicant has spent in custody, from 24 March to 17 November 2006, a period of 238 days must be declared. Since the sentences on counts 1, 2 and 4 are merely being varied, the period declared at the date they were first imposed, of 12 days pre-sentence custody (between 24 March and 4 April 2006) remains applicable.

[15]

1. Application for leave to appeal against sentence allowed.

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3. Sentences on counts 1, 2 and 4 varied by reducing the term of imprisonment imposed to two and a half years. Declaration that the period of 12 days in custody between 24 March and 4 April 2006 is imprisonment already served under the sentence.

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4. Sentence of two and a half years imprisonment imposed on count 3. Declaration that the period of 238 days in custody between 24 March and 17 November 2006 is imprisonment already served under the sentence.

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[1] R v NH [2006] QCA 310.

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