_R v R_

Judgment (86 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] McPHERSON JA: I agree with the reasons of Ambrose J. The appeal against conviction should be dismissed and the sentence varied by adding a recommendation for parole after serving 15 months of the sentence.

[3]

[2] AMBROSE J: On 5 April 2001, the appellant was convicted upon one charge of maintaining a sexual relationship with his stepdaughter between 1 May 1994 and 27 February 1997 contrary to s 229 B of the Criminal Code, and also upon three counts of unlawfully and indecently dealing with that child between 1 May 1994 and 1 May 1995 contrary to s 210 of the Code.

[4]

[3] He appeals on the ground that in the circumstances his convictions were unsafe and unsatisfactory.

[5]

[4] The appellant makes no complaint concerning the summing up on those charges. It was a long and careful summing up, which dealt adequately with dangers inherent in accepting, without corroboration, evidence of a 14 year old girl, concerning the appellant's alleged indecent dealings with her when she was between 7 and 8 years of age.

[6]

[5] The Crown relied upon evidence given by the complainant and her mother. The appellant neither gave nor called any evidence.

[7]

[6] Essentially it is the case for the appellant, that in spite of the very careful instructions given to the jury concerning the length of time that elapsed between the alleged offences and the institution of proceedings against the appellant with the consequent difficulties in making defence to the charges, the absence of fresh complaint, and the care to be given in evaluating the reliability of the complainant who was between 7 and 8 years of age at the time of the alleged three charges of indecent dealing upon which the Crown relied to establish the charge of maintaining (she was nearly 14 years of age at the time she gave evidence), nevertheless, for the reasons advanced, it would be unsafe and unsatisfactory to allow the convictions to stand.

[8]

[7] One of the unusual features of this case to my mind, arises from the fact that, in the course of the trial, complaint was made on behalf of the appellant that the "particulars" provided of count 3 were not established upon the complainant's evidence. This seems to have been conceded by the Crown and resulted in the learned trial judge ultimately directing the jury to bring in a verdict of not guilty on count 3.

[9]

[8] Counts 2, 3, 4 and 5 brought under s 210 of the Criminal Code were identical in their terms. I will set forth the terms of those counts -

[10]

"That on a date unknown between the first day of May 1994 and the first day of May 1995 at Cawarral in the State of Queensland, GGR unlawfully and indecently dealt with H, a child under 16 years, and H was under 12 years, and GGR had H under his care for the time being."

[11]

[9] Unsurprisingly, counsel for the appellant sought particulars of each of counts 2, 3, 4 and 5.

[12]

[10] I say unsurprisingly because the acts of indecent dealing charged in counts 2 to 5 allegedly occurred during a period of 1 year while the maintaining charge specified in count 1 allegedly occurred from 1 May 1994 to 27 February 1997 - during a period of about 2 years and 8 months.

[13]

[11] To establish the offence under s 229 B of the Criminal Code it was necessary to particularise and prove that at least three such indecent dealings occurred during that period of 2 years and 8 months. The Crown elected to specify four such indecent dealings. When particulars were sought of counts 2 to 5 inclusive, the appellant was entitled to particulars of the nature of each indecent dealing and the occasion of each indecent dealing, pursuant to s 573 of the Criminal Code.

[14]

[12] In fact, the complainant, on 5 July 1999, when aged 12, had given a detailed statement of the appellant's indecent dealings with her. That statement extended over 102 paragraphs.

[15]

[13] The Crown prosecutor asked if the Crown might provide particulars in this way -

[16]

"If I could just refer to the references in the paragraph numbers in her statement for those particulars."

[17]

[14] Counsel for the appellant said that that was acceptable and then particulars of counts 2 to 5 inclusive were given in this way -

[18]

"Count 2 - paragraphs 12 to 29 are in relation to 'that count'

[19]

[15] The complainant's written statement of course, was not put before the jury. The "particulars" to the extent that they might be gleaned from those paragraphs of the complainant's statement, to which reference was made, were within the knowledge only of the trial judge, Crown prosecutor and counsel for the appellant. The jury appear never to have been informed of those particulars - even to the extent that they might be gleaned from the specified paragraphs in her statement. The opening of the Crown case was not recorded. Presumably the opening was based upon the complainant's statement so that the jury would have an outline of the events and their chronology upon which the offences charged were based.

[20]

[16] On my view, to the extent that particulars of count 2 could be provided from an analysis of paragraphs 12 to 29 of the complainant's statement, they could have been shortly provided as follows -

[21]

Complainant was about 7 ½ years of age at the time of the offences in about October or November 1994.

[22]

The accused was in bed in a house he occupied with his family at Cawarral when she entered the house to get a drink; he called her in to the bedroom and persuaded her to masturbate him until he ejaculated. He told her not to tell anybody of the event, or she would be in big trouble.

[23]

[17] Count 3 dealt with events described in paragraphs 30 to 36 of her statement and could have been particularised in these terms -

[24]

A couple of days after the events to which count 2 relates, when the complainant's mother left the house to get some milk, the accused sent her brothers outside to play and, at his request she walked into his bedroom with him.

[25]

He took off his clothes and asked her to masturbate him in the same fashion as she had done a couple of days earlier.

[26]

[18] The allegations contained in paragraph 37 to 46 of the complainant's statement said to relate to count 4, in my view, could have been shortly particularised as follows -

[27]

The events to which count 4 relates occurred a couple of days after the events to which count 3 relates. They happened in the bedroom occupied by the accused who was then lying on his bed; he took off the complainant's pants and underpants and lifted her onto the top of his erect penis and moved her backwards and forwards in contact with his penis until he ejaculated.

[28]

[19] Count 5 which relates to events alleged in paragraphs 52 to 60 of the complainant's statement, could have been shortly particularised as follows -

[29]

The events in count 5 occurred between 2 and 3 weeks after the events alleged in count 2;

[30]

The accused had the complainant kneel beside a bed; he placed his penis between her legs but did not effect entry into her vagina;

[31]

He moved his penis between her legs against her vagina from behind her until he ejaculated.

[32]

[20] Reference to the rest of the lengthy statement indicates that the complainant asserted that conduct of this sort occurred on many occasions during the period specified in count 1 in different parts of the property upon which the appellant and the complainant then resided.

[33]

[21] One might infer that the reason that counts 2 to 5 inclusive were selected by the Crown, was that the complainant was able to fix the approximate period during which counts 2 to 5 occurred as one of about 2 or 3 weeks and she was able to remember the first occasion as being about 6 months before her 8th birthday party on 1 May 1995 ie in about October or November 1994 when she was about 7 ½ years of age.

[34]

[22] On my analysis of the complainant's statement, the contents of which seem to have been the basis of the "particulars" given, counts 2 and 3 each relates to an indecent dealing involving masturbation, whereas counts 4 and 5 each relate to an indecent dealing involving the appellant rubbing his penis in the vicinity of the complainant's vagina (or between her legs) without effecting penile penetration.

[35]

[23] Essentially, those 4 events are characterised by the nature of the indecent dealing and their chronology with respect to her eighth birthday on 1 May 1995.

[36]

[24] The evidence given by the complainant with respect to count 2 conforms essentially with the contents of paragraphs 12 to 29 of her statement.

[37]

[25] The Crown prosecutor then asked the complainant -

[38]

"Q. Now did anything else happen between you and G after this occasion (ie count 2)?

[39]

Do you know how long after the first time something happened?

[40]

Can you tell the court what happened on the next - the next occasion?
I was watching cartoons with my brothers and mum went to grandmas to get some milk and he sent my brothers outside to play and he told me to go with him."

[41]

[26] She said that this was mid morning, she then recounted the event, the subject of count 4.

[42]

[27] The Crown prosecutor then asked this question -

[43]

"Q. Well you told us before about the first time that anything happened between you and G and that is when you were holding onto his penis and moving your hand up and down. Did anything like that ever happen again?

[44]

A. The next two or so times after that one and then again.

[45]

So did the next time that you held onto his penis, was that after the first time or was it another time?

[46]

And you just told us about another occasion then, when he lifted you up onto the bed?

[47]

[28] Again, the prosecutor presumably attempting to maintain the chronology of events contained in the statement, which was the source of the "particulars" then asked -

[48]

"Q. Can you just say what you remember happening on the occasion where you were?

[49]

A. Well, where the same thing happened as the first time.

[50]

[29] The complainant was cross-examined at some length with a view to demonstrating inconsistencies between the evidence she gave upon trial and the content of her statement various paragraphs of which had been treated as particulars.

[51]

[30] However, it was put to her clearly enough, that the appellant had never had her touch his penis and had never in fact touched her with his penis at all.

[52]

[31] On one view of the evidence actually given by the plaintiff, it did sufficiently comply with particulars which might be elicited from her statement as to counts 2 to 5 inclusive. It is quite clear that there were 3 distinct variations of indecent dealing particularised -

[53]

(b) Moving the complainant's body in such a way above him that the appellant's erect penis came into contact with her vagina until he ejaculated (count 4);

[54]

(c) Having the complainant kneel so that he moved his penis between her legs and/or against her vagina until he ejaculated (count 5).

[55]

[32] At the time she was giving evidence the complainant was still 13 years of age. Very substantially, the evidence she gave in relevant respects, in my view, was in accord with her statement. Her statement was to the effect that the appellant had committed many offences of the sort alleged in counts 2, 4 and 5. Essentially, it was contended for the appellant that arguably at least her evidence could not be said to support count 3 because the next event she recounted after the event to which count 2 related was that relevant to count 4. Even accepting this contention (as the trial judge did), to my mind, examination of the complainant's evidence to which I have referred does not cast such a reflection on her reliability as to support the appellant's contention that to allow the appellant's conviction upon counts 1, 2, 4 and 5 to stand would be unsafe.

[56]

[33] The jury had the opportunity of assessing the reliability of the complainant, as a girl under 14 years of age, who was cross-examined at considerable length as to the chronology of events that occurred over a period of about 3 weeks when she was about 7 ½ years of age, with a view to suggesting that her evidence was unreliable.

[57]

[34] I am unpersuaded that the jury's verdict was unsafe or unsatisfactory or that the conviction was unreasonable. In this respect, I refer to M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493. I would dismiss the appeal.

[58]

[35] I would add merely that, in my view, it is undesirable that particulars of an offence charged be provided in the way in which they were provided in this case. In my view, it would be an undesirable practice for only the trial judge and counsel involved in a criminal trial to be aware of particulars of a charge to be determined by a jury. In my view, the jury should be given properly drafted particulars of charges in cases of this kind.

[59]

[36] Under s 573 of the Criminal Code it is provided that -

[60]

"573 The court may, in any case, if it thinks fit, direct particulars to be delivered to the accused person of any matter alleged in the indictment, and may adjourn the trial for the purpose of such delivery."

[61]

[37] In R v Lewis [1994] 1 Qd R 613 it was observed by Macrossan CJ at 624 -

[62]

"...The Code specifically provides for the delivery for particulars in the discretion of the trial judge: s 573. Particulars when ordered and delivered will have a force and significance by virtue of the very fact that our criminal procedure provides for them. Once delivered, they will have a consequence in the further conduct of the trial. Obviously they will have to be read with the terms of the indictment in defining the terms of the charge and the case which the Crown has to prove."

[63]

[38] In R v CB [2000] QCA 145, this court held at 3 -

[64]

"As Mackenzie J held in R v S [2000] 1 Qd R 445 at 452, there are two aspects to the need for particularity. One is to eliminate the risk of duplicity. The second is to give the accused sufficient indication of what is alleged against him or her on the occasion when he or she is said to have committed the offence."

[65]

[39] To my mind, because, as was held in Lewis, particulars must be read with the terms of the indictment to define the terms of the charge on the case which the Crown has to prove, it would be desirable if such particulars, in proper form, were read to the jury subsequent to time of arraignment and before the opening of the Crown case. If as sometimes occurs and as occurred in this case, the jury is given a copy of the indictment before it retires to consider its verdict, it should also be given particulars in writing of each charge in proper form. Where an indictment such as this one, drawn with four counts in identical terms each relating to an offence committed on a different occasion and some involving different acts from others, it would not help but merely tend to confuse a jury in their deliberations should they be given a copy of the indictment without proper particulars of each count.

[66]

[40] On the facts presented as recorded and in the absence of a recorded opening of the Crown case, having regard to the evidence which was given by the complainant, the jury may have been a little perplexed when directed to return a verdict of not guilty on count 3. The reason for the directed verdict appears to have been the failure of the complainant to clearly place the event in count 3, as occurring before the event in count 4, rather than after that event - that being the effect of her eventually saying she "could not remember" when pressed. It is far from clear to me, that the jury could not properly have convicted on counts 2 to 5 - all of which on the uncontradicted evidence of the complainant - occurred within a period of about 3 weeks. I am unpersuaded really that whether the event to which count 3 related occurred a day or two before the event of count 4 or a day or two after, is a matter of a kind which R v CB (supra) really addresses, although of course, it would be relevant to the reliability of the complainant as a credible witness.

[67]

[41] The appellant also seeks leave to appeal against the sentence of 4 years imprisonment imposed upon count 1 - the maintaining offence.

[68]

[42] It was ordered that the sentences of 2 years imprisonment on each of counts 2, 4 and 5 be served concurrently with that imposed upon count 1.

[69]

[43] At the time of the commission of these offences, the maximum penalty upon count 1 was 14 years imprisonment.

[70]

[44] For the appellant it is contended that, in the light of comparable sentences the sentence of 4 years imprisonment as a head sentence was manifestly excessive. It is said that having regard to comparable sentences the appropriate sentence was one of 3 years imprisonment.

[71]

[45] In R v T; ex parte Attorney-General CA No 68 of 1993 this court considered a case which involved sexual molestation of a stepdaughter between the ages of 9 and 12. The acts were not dissimilar to those in the present case except that they did involve also digital penetration and his licking of her private parts. In that case, the applicant was sentenced to 4 years imprisonment with a recommendation for parole after 9 months. The Attorney-General on appeal, contended that the sentence was manifestly inadequate having regard to the parole recommendation. The majority of this court observed that the recommendation "may be regarded as being on the generous side having regard to the seriousness of the offences", but it could not be said that it involved an unacceptable exercise of a sentencing discretion.

[72]

[46] That was a case where there had been no suggestion of remorse. Pincus JA observed -

[73]

"If a recommendation for parole after 9 months was appropriate in such a case as this, then there must surely have been a very short sentence indeed had there been a plea of guilty."

[74]

[47] He would have allowed the appeal against the early recommendation.

[75]

[48] In R v C CA No 170 of 1994 an applicant who had engaged in sexual activity with his daughter between ages 9 and 13, engaged in conduct which in my view, was worse than that proved against this appellant. It was described as "revolting and such conduct is viewed with outrage in the general community". His application for leave to appeal against a sentence of imprisonment for 3 years was refused. That case however, is authority only for the proposition that a sentence of 3 years imprisonment could not be said to be manifestly excessive.

[76]

[49] In R v CAQ CA 42 of 1999, the applicant pleaded guilty to maintaining to a sexual relationship with a child under the age of 12, while she was in his care. On this count he was sentenced to imprisonment for 3 ½ years with a recommendation that he be considered for release on parole after serving 15 months. The indecent dealings involved touching the child on the breast and the vicinity of her vulva. There was no suggestion of penetration, either digital or penile. This court considered R v L [1996] QCA 316, R v T; ex parte A-G (Qld) [1996] QCA 462, and R v C [1994] QCA 318 which attracted sentences of 3 years imprisonment, although in R v T; ex parte A-G (Qld), imprisonment was suspended after 3 months with an operational period of 5 years. The child in that case was the respondent's daughter. The appeal by the Attorney-General in R v T [1993] QCA 194 was dismissed because the sentence imposed was within the permissible range "but at the lowest level within that range".

[77]

[50] In CAQ reference was also made to R v V [1998] QCA 129 where a sentence of 4 years imprisonment was ameliorated by a recommendation for release on parole after serving 16 months. It was observed by Chesterman J -

[78]

"This review suggests that similar offences involving more serious sexual acts or contact have been punished by 3 to 4 years imprisonment. There are however, no exact perameters in sentencing. Because another sentence might have been appropriate or even more appropriate it does not follow that the sentence imposed is manifestly excessive."

[79]

[51] It was observed in CAQ that the severity of the sentence in that case (3 ½ years) was ameliorated by the recommendation that the applicant be considered for parole after serving 15 months. It was observed -

[80]

"This significantly diminishes the force of the submission that the penalty was manifestly excessive."

[81]

"If the recommendation is accepted, it would lead to release at about the time the applicant could expect parole had he been sentenced to 2 ½ years which would have been at the lower end of the range."

[82]

[52] On the facts of this case in my view, a sentence of 4 years imprisonment was within range although at its upper end. On the other hand, in my view, sentences of 2 ½ or 3 years would also have been within range.

[83]

[53] I think, on the facts of this case, a sentence of 4 years imprisonment without an early recommendation for parole, is out of line with the sentences to which I have referred, and in particular with the observations of this court in CAQ.

[84]

[54] I would not interfere with the 4 year sentence imposed; however, I would ameliorate that sentence by making a recommendation for eligibility for parole after 15 months.

[85]

[55] I would therefore dismiss the appeal against conviction. I would grant the appellant leave to appeal against sentence; I would not interfere with the sentence of 4 years imprisonment imposed but I would recommend that he be eligible for parole after serving 15 months of that sentence.

[86]

[56] CULLINANE J: I agree with the reasons of Ambrose J and the orders he proposes.

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Judgment (86 paragraphs)

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