Court of Appeal (Qld)|2005-11-18|Before: McMurdo P, Jerrard JA and Atkinson JSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
McMurdo P, Jerrard JA and Atkinson JSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Catchwords
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL
AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED
PERSONS -
APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - SEXUAL
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEALAND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTEDPERSONS -APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - SEXUALOFFENCES - applicant pleaded guilty to anex officio indictment containing twocounts of unlawful sodomy with a circumstance of aggravation, seven counts ofindecent treatmentof a girl under 14 years and one count of maintaining asexual relationship with a child under 12 years - sentenced to eight yearsimprisonment on the two sodomy counts and the maintaining count and to two yearsimprisonment on the remaining counts - recommendationfor post-prison communitybased release after three years - complainants were applicant's stepdaughters -offending took place overa six year period - offending stopped when theapplicant's wife discovered the applicant in the act of simulated intercoursewithone of the complainants - no further offending before the applicant
contacted police about 12 and a half years later - applicant
told police he
wanted to speak to them in relation to his stepdaughters and gave a recorded
interview admitting the offences - offered
to plead guilty to ex officio
indictment within one month of contacting police - excellent work history -
references suggesting that
absent offending applicant was a useful community
member - genuine remorse shown - applicant contends sentencing judge gave
insufficient
weight to the spontaneous and voluntary confession to the crimes in
circumstances where his offending may never have been revealed
but for his
confession - applicant contends sentencing judge gave insufficient weight to the
absence of re-offending for over 12
years - applicant contends sentencing
judge gave insufficient weight to the maximum penalty at the time of the
offending - applicant
contends sentencing judge gave insufficient weight to the
demonstrated remorse and early guilty plea to an ex officio indictment
- whether
sentence manifestly excessive
AB v The Queen [1999] HCA 46
(1999) 198 CLR 111, citedR v Alexander
[1986] CCA 137
CA No 119 of 1986, 28 July 1986, consideredR v
D'Arcy [2001] QCA 325
(2001) 122 A Crim R 268, citedR v Law
ex
parte A-G (Qld) [1995] QCA 444
[1996] 2 Qd R 63, consideredR v Main
[1993] QCA 408
CA No 148 of 1993, 27 October 1993, consideredR v
Mason [1993] QCA 448
CA No 169 of 1993, 23 July 1993, citedRyan v
The Queen (2001) 206 CLR 267, citedR v S [2001] QCA 54
CA No
238 of 2000, 21 February 2001, consideredR v T
ex parte A-G
(Qld) [2000] QCA 282
(2000) 113 A Crim R 439, 21 July 2000,
citedR v Wilson [1990] CCA 299
CA No 287 of 1990, 14 December
1990, considered
Judgment (42 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - SEXUAL OFFENCES - applicant pleaded guilty to an ex officio indictment containing two counts of unlawful sodomy with a circumstance of aggravation, seven counts of indecent treatment of a girl under 14 years and one count of maintaining a sexual relationship with a child under 12 years - sentenced to eight years imprisonment on the two sodomy counts and the maintaining count and to two years imprisonment on the remaining counts - recommendation for post-prison community based release after three years - complainants were applicant's stepdaughters - offending took place over a six year period - offending stopped when the applicant's wife discovered the applicant in the act of simulated intercourse with one of the complainants - no further offending before the applicant contacted police about 12 and a half years later - applicant told police he wanted to speak to them in relation to his stepdaughters and gave a recorded interview admitting the offences - offered to plead guilty to ex officio indictment within one month of contacting police - excellent work history - references suggesting that absent offending applicant was a useful community member - genuine remorse shown - applicant contends sentencing judge gave insufficient weight to the spontaneous and voluntary confession to the crimes in circumstances where his offending may never have been revealed but for his confession - applicant contends sentencing judge gave insufficient weight to the absence of re-offending for over 12 years - applicant contends sentencing judge gave insufficient weight to the maximum penalty at the time of the offending - applicant contends sentencing judge gave insufficient weight to the demonstrated remorse and early guilty plea to an ex officio indictment - whether sentence manifestly excessive
R v Wilson [1990] CCA 299; CA No 287 of 1990, 14 December 1990, considered
[11]
T D Martin SC, with C F C Wilson, for applicant/appellant
[12]
Director of Public Prosecutions (Queensland) for respondent
[13]
[1] McMURDO P: The applicant pleaded guilty on 4 August 2005 to two counts of unlawful sodomy with a circumstance of aggravation, namely that the complainant was a child under 12 years; seven counts of indecent treatment of a girl under 14 years; and one count of maintaining a sexual relationship with a child under 12 years. On 9 August 2005 he was sentenced to eight years imprisonment on the two sodomy counts and the maintaining count and to two years imprisonment on the remaining counts. The judge recommended that he be considered for post-prison community based release after having served three years.
[14]
[2] The applicant was between 27 and 34 years old at the time of the offences and 48 at sentence. He had no previous convictions.
[15]
[3] The two complainants were the applicant's stepdaughters. N was aged between eight and 11 years and A was aged between six and eight years at the time of the offending which was between January 1985 and December 1991. Counts 1 to 8 inclusive concerned N. The offending included the regular rubbing and fondling of N's bottom, vagina and chest; kissing her on the lips with an open mouth at least twice a week; placing his penis between her thighs or buttocks and simulating sex until orgasm; regularly placing the complainant's hand on his erect penis as he was fondling the complainant's vagina and bottom and on two occasions penetrating her anus with his penis. The complainant said that he placed his penis between her legs and told her to relax before inserting his penis into her anus. Her bottom hurt afterwards when she went to the toilet. Whilst the applicant could not recall penetrating the complainant's anus, he accepted her version of events and conceded that his penis could have slipped into her anus.
[16]
[4] The offences concerning A involved similar conduct on too many occasions for her to remember but with no sodomy. He regularly fondled A's bare skin on her bottom, vagina and chest. He also simulated sexual intercourse with her by placing his penis between her thighs near her bottom from the rear and moving his penis in and out. He placed her hand on his penis. On one occasion he inserted his finger into her vagina.
[17]
[5] The offending took place over a six year period. It stopped in 1991 when the applicant's wife, the mother of the complainants, discovered him in the act of simulated intercourse with A. The wife and her children left the matrimonial home but returned about two years later. There was no further offending before the applicant contacted police on 12 June 2004, about 12 and a half years after he had ceased offending. He told police he wanted to speak to them in relation to his two stepdaughters. He gave a recorded interview admitting the offences. He was co-operative and made extensive admissions. He said that committing these acts made him feel excited and that he was attempting to bring the complainants closer to him. He offered to plead guilty to an ex officio indictment within one month of contacting police.
[18]
[6] Victim impact statements prepared by both complainants unsurprisingly demonstrate that the applicant's conduct has had and continues to have a dramatic detrimental effect on their lives.
[19]
[7] The applicant had an excellent work history. His counsel at sentence tendered a number of references suggesting that, absent this offending, he was a useful community member. He is genuinely remorseful for his conduct. His counsel submitted that as a result of the guilt he feels about his conduct, he has attempted suicide; he has been receiving counselling about his mental state. Tendered reports supported these submissions.
[20]
[8] Mr Martin SC who now appears with Mr C F C Wilson for the applicant contends that the learned primary judge gave insufficient weight to the following factors. The first is that the applicant spontaneously and voluntarily confessed his crimes to police in circumstances where his offending may never have been revealed but for his confession. The second is that the applicant has not reoffended since his partner discovered his conduct over 12 years before he confessed to police. The third is that the maximum penalty at the time of the applicant's offending for the most serious offences (the maintaining charge and the two counts of sodomy) was 14 years imprisonment. Had the maintaining charge concerned behaviour after 1997, it would be punishable by life imprisonment. This has the result that those cases in which sentences were imposed for offences of maintaining after 1997, for example R v TWB,[1] are not comparable.[2]
[21]
[9] The applicant contends that in any case, in the light of these three factors, particularly the first, and his demonstrated remorse and co-operation with the administration of justice by way of a very early guilty plea to an ex officio indictment, the comparable cases of R v Law; ex parte A-G (Qld)[3] and R v Main[4] (which both concerned offending before 1997 and are therefore especially apposite), demonstrate that the appropriate head sentence was five to six years imprisonment with an early recommendation for parole eligibility or suspension.
[22]
[10] It is well-established that the first factor relied on by the applicant, spontaneous confession to authorities without which the offending may have remained undetected, is a consideration deserving of considerable leniency: see for example R v Mason,[5]AB v The Queen,[6]R v T; ex parte A-G (Qld)[7] and R v S.[8]
[23]
[11] Demonstrated rehabilitation and otherwise good character is also a relevant mitigating factor in sentencing: Ryan v The Queen,[9]R v Law; ex parte A-G (Qld)[10] and R v D'Arcy.[11]
[24]
[12] Although no two cases are precisely identical, some assistance can be gleaned from a consideration of a few matters to which counsel for both parties have referred. Law was an Attorney's appeal. He pleaded guilty to one count of attempted sodomy, 11 counts of sodomy and 10 counts of indecent dealing with a boy under 14 years. Law was sentenced to an effective term of six years imprisonment with a recommendation for parole eligibility after nine months. He was 68 years old at the time of sentence and between 35 and 41 years old at the time of the offending. The complainant, Law's young brother-in-law, was aged between seven and 13 years at the time. Law used physical violence on the child to enable him to carry out the offences. The Court described the case as an extremely bad example of multiple sodomy and sexual abuse over a long period of time whilst the complainant was a child in Law's care; there was violence on many occasions inducing fear and with serious consequences for the complainant. Law threatened the complainant that if he told his parents about the offences he would shoot him. This Court determined that all the mitigating factors were sufficiently taken into account by a moderate head sentence of six years imprisonment and allowed the Attorney's appeal to the extent of setting aside the recommendation for release on parole after nine months.
[25]
[13] In Main the applicant was convicted after a trial of 1 count of sodomy of a child under 16 years and 1 count of indecent dealing with a child under 12 years on two complainants, brothers aged 12 and 10. The boys were in Main's care at the time. No violence or force was used. There was no evidence of physical or emotional harm. Main was 48 years of age and had a lengthy criminal history for relatively minor offences. He was sentenced effectively to seven years imprisonment. This Court reduced the sentence to five years imprisonment.
[26]
[14] In R v Wilson[12] this Court reviewed sentences imposed in sodomy offences. Of particular relevance is R v Alexander.[13] That review together with the cases of Law, Main and S persuade me that the sentence imposed here was manifestly excessive. The applicant acted disgracefully towards his two young stepdaughters over a four year period but he voluntarily attended on police and confessed his shameful conduct before any complaint was laid. Without that confession these charges may never have been brought. In addition, he pleaded guilty by ex officio indictment at an early stage, and the complainants have not had to face cross-examination or fear that their evidence may be tested in court and perhaps not accepted. He has not reoffended for over 12 years and is otherwise of good character. He has sought counselling and has demonstrated apparently genuine remorse and contrition.
[27]
[15] The Court should encourage such post-offending mitigating conduct by significantly reducing the penalty otherwise applicable. The offender's confession before any complaint, timely plea and remorse are factors likely to assist the complainants to better cope with the aftermath of the applicant's serious breach of trust which has tarnished their childhood and their lives.
[28]
[16] I would grant the application for leave to appeal against sentence, allow the appeal, and instead of the sentence of eight years imprisonment on counts 1, 2 and 10, substitute a period of seven years imprisonment. Instead of the recommendation for post-prison community based release after three years, I would substitute a recommendation after two and a half years. The sentence is otherwise confirmed.
[29]
[17] JERRARD JA: In this appeal I respectfully agree with the reasons for judgment and orders proposed by the President.
[30]
[18] ATKINSON J: I agree with the orders proposed by McMurdo P and with her reasons.
[2] Despite the submission in the applicant's written outline that her Honour erred in taking into account cases where the maximum penalty was life imprisonment, nothing in the sentencing remarks suggests this occurred; indeed the transcript reveals that the judge well understood the maximum penalty for the offence of maintaining was 14 years imprisonment.