R v. R [1998] QCA 360 (25 August 1998)

Court of Appeal (Qld)|1998-08-25|Before: Murdo P, Pherson JA, Ambrose J

The applicant advances reasons why an extension of time should be granted, based upon what he was advised concerning applying for leave to appeal and the failure of people to do what he understood they had undertaken to do.

I do not propose to deal with these technical matters but simply to look at the sentences imposed and the offences in respect to which they were imposed to determine whether, if an extension of time were granted, it is arguable that he might succeed on an application for leave to appeal and succeed in having those sentences reduced.

I will deal first with the matters in Court of Appeal 231 of 1998. These sentences were imposed on 4 February 1998. They were imposed with respect to offences committed on female children of the de facto partner of the applicant between 1 September 1984 and 12 July 1990.

There were two children. The elder child, L, was 11 years of age when the offences started, and the younger child, D, was 10 years of age.

With respect to the older child, there were six offences of indecent dealing, and in respect of the younger child, D, there were four offences. In respect of each of these offences, he was sentenced to four years' imprisonment.

There were other offences of indecent dealing or treatment committed on the same two girls and in respect of each of these offences he was sentenced to imprisonment for three years.

The head sentence was imposed in respect of the maintenance of a sexual relationship with a child under 16 with a circumstance of aggravation, that circumstance being that he was in control of or stood in a position of authority over the child, and that resulted from the fact that he was regarded really by the child as a stepfather. That offence was committed with respect to the younger child, D. The sentence imposed for that offence was 10 years' imprisonment.

There were other counts relating to D; three counts of unlawful carnal knowledge with a circumstance of aggravation, the same circumstance of aggravation resulting from the relationship between him and the child. In respect of those three offences, he was sentenced to seven years' imprisonment on each count.

Without going into all the details of the offences, it seems clear that the applicant over a period of something in excess of five years deliberately set out to corrupt each of the girls. The various sexual offences he committed on them, or many of them, were committed in the presence of the other. It involved things like having each of the girls undressed in bed with him and watching as he sexually abused the other.

The children's will was overborne, on the material before the Judge, and he seems to have embarked upon a course over a long period of time of deliberating debauching the children. The material indicates that it has had, as one might expect, a serious impact on the psychological health of each of the girls. The applicant pleaded guilty to all those offences when indicted.

He appeals against the head sentence imposed of 10 years with a recommendation that he be eligible for parole after four and a half years on the ground that that sentence was manifestly excessive.

In the unusual circumstances of this case, it is necessary to look at the other sentences in respect of which he also seeks an extension of time within which to seek leave to appeal. Those sentences of imprisonment were imposed on 3 December 1997 in respect of two children; J, a female, five years of age at the time the offences commenced and a young male child, K, who was seven years of age at that time.

This is an unusual situation in that in February 1997 the applicant had been convicted of these offences - being some of a large number of counts brought against him, in respect of those two children and another child. However the convictions were upset on appeal and he was retried towards the end of December 1997. He eventually changed his plea from not guilty to guilty.

The offences, in respect of which he was sentenced, contrary to his contentions were not identical with those for which he had been sentenced in February of 1997. The earlier offences involved a count of maintaining a sexual relationship with the female child. The sentences to which he pleaded guilty in December of 1997 contained the additional count of maintaining an unlawful sexual relationship with the young boy, K, who was seven years of age at the time to which the maintenance charge related.

These two children also were the children of a woman with whom the applicant at the time was living in a defacto relationship. The period during which these offences were committed commenced about three years after the period during which the earlier offences involving the two young girls were committed. Upon his retrial, as I have indicated, the applicant pleaded guilty to the offences of which he had already been convicted, those convictions having been set aside, and as well the additional maintenance offence in respect of the child, K.

These offences were committed over a period of about two and a quarter years, one child then being between five and seven years of age, and the older child being between seven and nine years of age. The circumstance of aggravation in each of the maintenance cases was the fact of the relationship that existed between the applicant and the two young children at the time he committed those offences.

There were also other offences apart from the maintenance offences, and these involved indecent treatment of a child under 12 whilst in his care, and there was a count relating to exposing the young boy, K, to an indecent video tape. On each of the two counts of maintaining a sexual relationship he was sentenced to imprisonment for nine years and on the counts of indecent treatment of a child, four of them, and he was sentenced on each to three years imprisonment and also to three years imprisonment with respect to subjecting the child, K, to the indecent video tape.

These being the offences upon which the applicant was first sentenced, that is in December 1997, he was recommended for parole after four years. In respect of this sentence, a period of 287 days was fixed as pre-sentence custody, to be treated as having been served under the sentence imposed in December 1997. All the sentences imposed on both occasions, that is, in December 1997 and February 1998, were to be served concurrently.

The net result then of the imposition of all sentences was that after the imposition of the sentences for the first lot of offences, that is, 1984 to 1990, the head sentence was one of ten years with a recommendation after four and a half years. That sentence was to operate from the day upon which it was imposed, namely 4 February 1998. The sentence imposed in respect of the first lot of sentences was thus a head sentence of ten years, and this was the highest of the sentences imposed in respect of any of the offences which he was dealt with on either sentencing occasion.

In respect, all told of 21 offences of a sexual nature committed on children, three involved maintaining a sexual relationship with a child under 16 years of age, with a circumstance of aggravation in respect of each of those offences. It is the contention of the applicant that the sentences imposed, both lots of sentences, were manifestly excessive.

In my view, having regard to the nature of the offences, it could not be said that either the head sentence of nine years or that of ten years was beyond the range which was open to the learned sentencing Judge. The maximum penalty for an offence of maintenance of a sexual relationship with a child under 16 is 14 years. Here there were two offences committed simultaneously with a brother and sister, and another offence committed in a different period of time with one of two little sisters.

However for the applicant it is contended that with respect to the sentence imposed for the later offences, committed in 1993 to 1995, of which he had been convicted in February 1997 and a head sentence for one of those offences of only seven years imposed; when convicted of those offences on the second occasion, when he pleaded guilty to them, it was not in accord with the proper exercise of sentencing discretion to impose a higher sentence of nine years.

It seems to me that on the second sentencing occasion it is clear that he was not being dealt with for precisely the same offences. Because on the second sentencing occasion he pleaded guilty also to committing the same sort of offence, with respect to the brother of J, over the same period of time. So the learned sentencing Judge was faced, on the second sentencing occasion, with the applicant pleading guilty to maintaining a sexual relationship with a girl aged five years and her brother aged seven years, at the same time.

It seems to me that it is not appropriate to apply any principle based upon the fact that on the second sentencing occasion he was being sentenced for the same charges in respect of which sentences had been imposed on the first occasion. The learned sentencing Judge took into account the pleas of guilty and commented upon it. There was also reference made to what had been advanced on his behalf that by pleading guilty he had demonstrated some remorse with respect to the young children, J and K, because he had pleaded guilty rather than putting them through the trauma of giving evidence once again. He had already had them give evidence; they had already taken part in committal proceedings and so forth.

It seems to me that His Honour was not obliged to attach significant weight to any remorse to the extent that it was exhibited by his pleading guilty after the trial had commenced for the second time with respect to the offences committed in 1993 and 1995.

The third point advanced by the applicant in person was that in imposing the sentences the sentencing Judge failed to take into account health problems from which he suffered related to a back condition. There is no indication that this material was ever placed before the sentencing Judge by way of exculpation or as a circumstance that ought reduce the level of sentence which might otherwise be thought appropriate.

In all the circumstances, it is my view that it could not be said that the sentences imposed with respect to either series of sexual offences committed against these young children were manifestly excessive. In my view they were within range albeit perhaps at the upper end of the range. The offences were made very serious by the fact that the children were of tender age, they were abused and dissuaded from complaining because of the position of authority that the applicant occupied at the time he was committing these offences and they have obviously had a serious effect on the psychological health of the children.

I would, if leave to appeal against sentence were granted, reject the argument that the sentences were manifestly excessive. In those circumstances, in my view, it would be pointless to extend time for leave to appeal and I would refuse the application.

THE PRESIDENT: Yes, I would refuse the application for extension of time in each case for the reasons given by Mr Justice Ambrose.

THE PRESIDENT: The order of the Court is: in respect to appeal No 231 of 1998 the application for extension of time within which to appeal against sentence is refused. And in respect of appeal No 232 of 1998 the application for extension of time within which to appeal against sentence is refused.

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