R v Pont [2002] QCA 456

Court of Appeal (Qld)|2002-10-28|Before: de, Jersey CJ, McPherson JA, Mullins J, Separate reasons for judgment of each member of the court, each concurring as, to the order made

Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: This is an application for leave to appeal against sentence arising out of a conviction at trial in the District Court at Brisbane, where the applicant was sentenced to concurrent terms of imprisonment of eight years on each of two counts of rape. There was no recommendation for parole. The offences in respect of which those sentences were imposed were committed between January 1968 and September 1971. That was a long time before the trial, and the sentencing took place at some time during the course of this year.

A number of grounds have been advanced in favour of the application. They include the personal circumstances of the applicant; in particular, that he was 63 years old at the time of sentencing; his health was not good; he had high blood pressure and depression. He is said to have been affected significantly by the experience of seeing or knowing of a person committing suicide at a time when the applicant was a train driver. He was partly disabled by back, knee and elbow pain and so on.

The applicant, it said in support of his application, did not occupy a position of trust with the complainant. Had it been so his offence would have been more serious; but for my part I hardly think it is a matter in his favour in the merits of this matter. Certainly, he used no violence and inflicted no physical injury, and, as has already been mentioned, there has been a long delay in reporting and prosecuting the offence.

The learned Judge considered all these matters and took them into account. In addition to those circumstances, the applicant, it must be noted, was dealt with in July 2000 for other sexual offences which occurred roughly during the same time period as the two rapes with which we are concerned here.

The two rape charges were, in fact, part of an indictment containing a total of 14 counts to which, in respect of those other 12 counts, the applicant pleaded guilty on another occasion and was then sentenced to three years imprisonment suspended after 12 months. If one looks at the total head sentence in this application he can be seen to have been sentenced to a head sentence of 11 years, of which he is to serve a total of five years before becoming eligible for parole.

The point is again made in his favour that there have been no convictions for the past 11 years, and it is submitted on his behalf that if he had been dealt with in respect of all these charges at the same time the totality of sentencing principle ought to have reduced the penalty to a lower level than that with which he is now confronted, taking account of the two sets of sentences that have been imposed on separate occasions.

Turning to the precise circumstances of the two offences of rape as to which he was sentenced in this case, they occurred between 1st January 1968 and the 9th September 1971 at Yarraman in Queensland and they were perpetrated on a victim who was only 10 years old at the time.

In the first instance, she was riding her bicycle to her home in Yarraman after having gone to the store for her mother. The applicant, who was known to her as a work mate of her father, stopped his utility and offered her a lift. Although she had not known him for long and only through his association with her father, she accepted the lift.

He put her bicycle into the back of the utility and drove on. Instead of turning into the road where she lived, he kept on to a forestry road, where he stopped the car, walked round to her side and laid her down in the utility and raped her. She does not recall some of the details of the incident, but does remember the pain she endured. She remembered some matters such as his sucking her breasts in the course of this offence.

The offence was repeated, she said, but that subsequent incident was not charged by the prosecution because she could not recall enough particulars. That evidence must have come into the trial as part of the background for the jury to consider; but it is not a matter that affects the sentence of this case.

The family of which the complainant was a member moved to another house in Yarraman in 1970 and the complainant had some social contact with the applicant after that. He kept horses at the railway yards nearby, and he also used to assist the complainant's father with renovations in the house at the time. After she turned 11 he invited her to help him feed the horses. On one such occasion he took her to a shed in the horse paddock and told her to lie down.

She told him she had her period and he said it did not matter. She lay down on some hessian bags and he raped her. On two other occasions the complainant said the applicant took her to the Ampol depot and had sex with her in his utility. Between the 1st January 1969 and 9th September 1971 she claimed she could recall eight occasions when he had sex with her. They were four times at the sheds, twice at the forestry road and twice at the Ampol depot.

Only two counts were particularised by her well enough to enable charges to be laid. Again I say that that material was evidence before the jury for a limited purpose only. We do not take it into account in sentencing except in so far as it might be said to show that these two incidents of rape were not capable of being regarded as isolated examples which were in any way out of character with the applicant.

The personal circumstances of the applicant are that he was born on the 24th May 1939 and was, I have said, 63 at the time of sentence. He was between 39 and 42 years at the time of commission of the offences. He had at the time of sentencing a prior criminal record. The offences involved were mainly of a fairly minor kind. He was convicted in 1975 in the Magistrates Court of possession of a concealable firearm. He was also convicted in the Brisbane District Court in that year of indecent treatment of a boy under 14. It must have been a minor offences because he was fined $500 and placed on a three year good behaviour bond. Then in 1977 in the Ipswich Magistrates Court, he was convicted and fined $50 for behaving in an indecent manner. There was a stealing conviction in Brisbane in 1984, for which he was fined $60. Then in the Ipswich District Court on the 13th August 1992, he was convicted of exposing a child to an indecent video tape and indecent dealing with a child aged under 16 years. There were two such counts, for which he received three years' probation.

He was dealt with very lightly in respect of that offence, as well, it might be thought, in respect of some of the other offences having regard to his record.

The rape offences of which he was convicted at trial occurred, as I believe I have said, at approximately the same time or shortly after some other offences that were committed and to which he pleaded guilty in July 2000.

These consisted first of indecent dealing with a child under 14 years, of which there were five counts, the offences having occurred between July 1969 and July 1971. Then there was another charge of sodomy to which he pleaded guilty which occurred between 1972 and 1973, and also a charge of permitting sodomy at about the same time. In each instance, those offences were committed on or with a boy or boys of such an age that he or they should not have been introduced to an activity of that kind.

He was a fettler on the railway at the time he committed these offences. He was on a disability pension at the time of his trial because of the pain in his back, knee and elbow. He had progressed to becoming a train driver at the time he began to receive those disability payments.

The maximum penalty for rape is, of course, life imprisonment. His Honour approached the matter of sentencing in this case by arriving at a notional head sentence of 10 years for the offence, which he then reduced by two years to bring it to eight because of the mitigating factors I have mentioned; that is to say, the age of the applicant at the time of sentence, the condition of his health, and perhaps also the matter of the long delay in prosecuting the offences.

The submission before us was that a head sentence of that dimension was unduly severe, and exceeded other comparable cases in which sentences had been imposed for rape. I would, however, mention that on the 24th October 2002, which was only last week, this Court affirmed a sentence imposed in Queen v. Bartlett for two counts of rape in respect of a 13 year old girl. The sentence, in that instance, was eight years. The applicant was just short of his 40th birthday when sentenced. The victim was admittedly his step-child which made the offence worse; but the applicant pleaded guilty and showed what I thought was genuine remorse. When a comparison is made between that case and this it seems to me that, if anything, this incident of rape is a good deal more serious, although it is difficult to categorise cases in that way because of the personal factors that are involved on the victim's side.

Here the girl was only 10 years. She was a stranger, or very nearly so, to the applicant, and he violated her on two occasions. He not only committed rape but did it twice, which in my view merits an increase in the sentence even bearing in mind the totality principle. No one surely can expect to receive a sentence appropriate to a single offence when he repeats it again on another occasion.

A glance at his record suggests that he, if not a dedicated paedophile, is certainly someone who is given to committing offences on younger children in circumstances which can only be utterly condemned. All matters considered, I do not regard the sentences imposed in this case as excessive, or as justifying in any way our intervention with the Judge's sentencing discretion. I would, in the end, refuse the application for leave to appeal.

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