R v S [1993] QCA 367

Court of Appeal (Qld)|1993-10-07|Before: Davies J, Thomas J

The applicant, who is 37 years of age and has no prior criminal history, has applied for an extension of time within which to apply for leave to appeal against a sentence imposed upon him in the District Court at Toowoomba on 30 July 1993.

The applicant says that he "did not know of the time limit on appeals". Further, the application was not long out of time. Notice of the application was received by the Remand and Reception Centre on 3 September 1993 and by the Registrar of this Court on 7 September 1993. The prosecution was notified on 8 September 1993. In the circumstances, the Court proceeded to hear the application for leave to appeal.

The applicant was sentenced to imprisonment for 20 years after pleading guilty to a charge that, between the 3rd day of July 1989 and the 15th day of March 1993, he maintained an unlawful relationship of a sexual nature with a female child under the age of 16 years and that in the course of the said relationship he had carnal knowledge by anal intercourse of a child under the age of 12 years and committed rape upon the child.

The applicant carried on a sexual relationship with his natural daughter over a four year period commencing when she was 4 years old. The applicant subjected the child to numerous and repeated acts of indecency including procuring her to masturbate him, the performance of oral sex by each of them on each other, penetration of her anus and vagina with his finger, attempted penetration of her vagina and anus with his penis and at least one act of sodomy and one act of rape. He developed a practise of paying the child money to suck his penis and swallow his ejaculate and the child was corrupted to such an extent that eventually she sought to repeat the performance of oral sex upon him in order to get money from him and sometimes in order to avoid the pain of interference with her vagina. The offences only ceased when the applicant's wife left him taking their children with her. The child's relationship with her mother and siblings has deteriorated and she has problems at school. She is in foster care but is unsettled, experiencing nightmares about her father and outbursts of anger towards others and on occasion has been so uncontrollable as to require sedation. She is receiving counselling which will be upgraded over time. The applicant made full admissions and pleaded guilty. A psychologist's report before the Court disclosed that the applicant had a dysfunctional upbringing revealing what defence counsel described as "an amoral appreciation of human behaviour."

"S, you have pleaded guilty to what amounts to a long series of crimes against your little daughter. You deliberately and coldly encouraged her to engage in revolting practices when she was scarcely more than a baby, and this ultimately led, by design, to repeated acts which ended in the rape and the sodomising of the child. All this happened over four years or more.

On the material placed before me very thoroughly by the prosecution, and even on the material placed before me on your behalf, I come to two conclusions: firstly, that the child has been seriously emotionally scarred by your subjecting her to these criminal acts, a scarring which, on any view of it, is hardly likely to subside; secondly, that you have done this in such a manner which leaves open this conclusion which I draw, and that is that you had absolutely no moral capacity to understand the nature of these acts adequately described as amoral behaviour, like some revolting sexual automaton.

Of course, these sorts of offences against very young children are unfortunately too common in our community. The public is becoming outraged, and rightly so. Stern measures are required in order to demonstrate the public's outrage and to meet the situation.

It is obvious to everybody in this room that this matter can only be met with a long period of imprisonment. The maximum penalty of life imprisonment is open on two counts.

However, it is necessary to consider all the aspects of criminal sentencing in these cases. One can not just look at the deterrent aspect, although that has to range very highly in one's thinking on these occasions. But I fully accept the analysis which has been advanced very ably by the prosecution here. The truth is that you did not desist of your own volition when it became more than apparent that this child had become nothing more to you than a piece of flesh. This was a deliberate and calculated corruption of this little girl. It represents the most appalling breach of trust and it occurred over a prolonged period. Furthermore, looking at the result by comparison with your apparently benign indifference, there is permanent damage to this child.

In determining the length of the sentence which ought to be imposed, of course one takes into account the overall criminality of this series of acts. One naturally takes into account all the matters which have been placed before me by the defence, and I take into account the plea and the early acknowledgment of guilt to the police. However, these features which have been quite rightly advanced in mitigation can not be allowed to place out of focus the true nature of these terrible crimes.

The Court of Appeal, of course, in R v. Hackett reminded us very recently that people like you should not be treated as less than human however much your beastial (sic) behaviour would seem to disqualify you from membership of the human race.

However, doing the best one can in all the circumstances, have decided that you should serve 20 years imprisonment.

No doubt the authorities will provide you with whatever medical treatment they think you deserve."

There is little purpose to be served by a discussion of these remarks or the revolting behaviour engaged in by the applicant. The essential issue for this Court in all the circumstances of this case is whether or not the sentence is so far out of line with the sentences imposed in other cases as to be manifestly excessive.

This Court recently considered a number of previous authorities in K (CA No. 203 of 1993, unreported judgment delivered on 23/09/93). The present is an extremely bad case, like K, Krieger (CCA No.13 of 1991) and Dugdale (CCA No. 272 of 1991). There, the sentences imposed were imprisonment for 12 years, 15 years and 13½ years respectively. The sentencing judge in this matter did not have the benefit of K when he passed sentence upon the applicant.

While circumstances vary from case to case and the opportunity for comparison is limited, there is a large difference between the sentence imposed in those other matters and the sentence here, a difference of between 5 and 8 years. That cannot be justified. An appropriate sentence in this case, taking into account the applicant's early plea, would be of the order of 15 years.

Accordingly, the extension of time sought and the application for leave to appeal are granted and the appeal is allowed. The sentence imposed below is set aside and, in lieu, a sentence of imprisonment for 15 years is imposed.

APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO APPLY FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED AND THE TIME EXTENDED TO THE DATE OF RECEIPT OF THE APPLICATION BY THE REGISTRY. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL AGAINST SENTENCE ALLOWED. SET ASIDE THE SENTENCE IMPOSED BELOW AND, IN LIEU, IMPOSE A SENTENCE OF IMPRISONMENT FOR 15 YEARS.

CATCHWORDS:CRIMINAL LAW - Sentence - Applicant maintained sexual relationship with four year old daughter over four year period - circumstances of aggravation - anal intercourse and rape - 15 years' imprisonment.

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