Court of Appeal (Qld)|2009-04-24|Before: Muir and Fraser JJA and White J, Separate reasons for, judgment of each member of the Court, each concurring as to the order made
Muir and Fraser JJA and White J, Separate reasons for, judgment of each member of the Court, each concurring as to the order made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY
EXCESSIVE OR
INADEQUATE – where applicant convicted on plea of guilty of one count of
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLYEXCESSIVE ORINADEQUATE – where applicant convicted on plea of guilty of one count ofmaintaining a sexual relationship withhis daughter who was under the age of 16years, five counts of indecent treatment of his daughter during the maintainingperiod,one count of attempted incest and two counts of incest – whereapplicant sentenced on count 1 to nine years imprisonment withparoleeligibility after four years – where applicant seeks for paroleeligibility date to be fixed after serving three yearsimprisonment –whether the learned sentencing judge took into account applicant’ssuffering since his confession –whether sentence manifestlyexcessiveCRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – SINGLESENTENCE FOR MULTIPLE OFFENCES – where applicant convicted
on plea of
guilty of one count of maintaining a sexual relationship with his daughter who
was under the age of 16 years, five counts
of indecent treatment of his daughter
during the maintaining period, one count of attempted incest and two counts of
incest –
where applicant sentenced on count 1 to nine years imprisonment
with parole eligibility after four years – where the learned
sentencing
judge imposed no further punishment on counts 2 to 9 and did not pronounce a
conviction – whether the learned sentencing
judge erred in imposing a
single sentence of imprisonment for the different offences – whether
applicant was properly convicted
on counts 2 to 9
Criminal Code 1899
(Qld), s 229B(7), s 229B(8), s 597C(2), s 648
Penalties and Sentences
Act 1992 (Qld), s 97, s 107
R v BAY (2005) 157 A Crim R 309
[2005] QCA
427, cited
R v Beesley [2008] QCA
240, cited
R v Crofts [1999] 1 Qd R 386
[1998] QCA
60, distinguished
R v Dolan [2008] QCA
41, distinguished
R v HAP [2008] QCA
137, distinguished
R v Lowrie and Ross [2000] 2 Qd R 529
[1999] QCA
305, cited
R v Shillingsworth [1985] 1 Qd R 537, cited
Judgment (69 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where applicant convicted on plea of guilty of one count of maintaining a sexual relationship with his daughter who was under the age of 16 years, five counts of indecent treatment of his daughter during the maintaining period, one count of attempted incest and two counts of incest - where applicant sentenced on count 1 to nine years imprisonment with parole eligibility after four years - where applicant seeks for parole eligibility date to be fixed after serving three years imprisonment - whether the learned sentencing judge took into account applicant's suffering since his confession - whether sentence manifestly excessive
[2]
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES - where applicant convicted on plea of guilty of one count of maintaining a sexual relationship with his daughter who was under the age of 16 years, five counts of indecent treatment of his daughter during the maintaining period, one count of attempted incest and two counts of incest - where applicant sentenced on count 1 to nine years imprisonment with parole eligibility after four years - where the learned sentencing judge imposed no further punishment on counts 2 to 9 and did not pronounce a conviction - whether the learned sentencing judge erred in imposing a single sentence of imprisonment for the different offences - whether applicant was properly convicted on counts 2 to 9
[3]
Criminal Code 1899 (Qld), s 229B(7), s 229B(8), s 597C(2), s 648
Director of Public Prosecutions (Qld) for the respondent
[13]
[1] MUIR JA: I agree with the reasons of White J and with the order she proposes.
[14]
[2] FRASER JA: I agree that the application should be refused for the reasons given by White J.
[15]
[3] WHITE J: The applicant for leave to appeal against sentence pleaded guilty on 31 October 2008 to one count of maintaining a sexual relationship between 1 January 2001 and 31 August 2006 with his daughter who was, at all times, under the age of 16 years. He also pleaded guilty to five counts of indecent treatment of his daughter during the maintaining period. He pleaded guilty to one count of attempted incest between 10 January 2001 and 31 December 2002 and two counts of incest between 1 January 2006 and 31 August 2006 and 1 January 2005 and 30 November 2005 respectively.[1]
[16]
[4] He was sentenced to a term of imprisonment on count 1 of nine years with a parole eligibility date fixed after serving four years. Her Honour imposed no further punishment on counts 2 to 9 inclusive since the offending particularised in those counts related to the conduct which constituted the maintaining offence. This was an approach commended to her Honour by the experienced prosecutor and defence counsel.
[17]
[5] The applicant, who appears on his own behalf, does not seek to interfere with the head sentence of nine years but seeks a parole eligibility date after serving three years as was sought by his counsel at sentence, rather than the four years which her Honour ordered.
[18]
[6] The applicant is the natural father of the complainant. He was born on 13 January 1963 and was approximately 38 when the period of offending commenced. He has no prior criminal history. His daughter was born on 6 August 1991. They lived as a family with the applicant's wife (the complainant's mother) and the complainant's two brothers.
[19]
[7] There was some uncertainty about the commencement of the offending conduct. The complainant said she was in grade five or six and, accordingly, aged between nine and 11 when the applicant entered her bedroom, climbed into her bed and digitally penetrated her vagina. In her record of interview the complainant said that the applicant attempted to place his erect penis into her vagina but did not do so because it would not fit. On other occasions he would try to effect penetration but it caused her pain and when she indicated this he would stop. Full penetration commenced when the complainant was in grade eight and continued for almost two years, up to three to four times a week. On most occasions the applicant would wear a condom.
[20]
[8] Other sexual activity involved rubbing around her genital area and inserting his fingers into her vagina, oral sex and masturbation. On occasion the applicant would have money in his hand, usually $20 when he came into her room, and would give it to her after the sexual misconduct. The complainant said that she had started sleeping with the light on so that he would think that she was still awake and would not come into her room. From time to time sexual misconduct took place in the morning in her bedroom.
[21]
[9] The prosecution tendered a statement of facts relating to the particulars for counts 2 to 9 inclusive which involved particular occasions during broadly described dates. Count 7 concerned exposure to an indecent video. The complainant said she was 14 and had back problems which she mentioned to the applicant. He offered a massage and took her into his bedroom. He put a video in the recorder which showed a male and a female in the back of a limousine having sexual intercourse. On that occasion carnal knowledge occurred.
[22]
[10] The offending came to light on the evening of 13 June 2007 when the complainant was 15. It had ceased about 12 months previously. She told her boyfriend and he advised her to tell her mother. The mother confronted the applicant and told him to leave when he admitted sexual misconduct. The applicant expressed his remorse to the complainant and to the family. He admitted his wrong doing to Department of Child Safety officers who then contacted police. He took part in two records of interview and repeated his admissions of guilt but initially denied penetration. Within five weeks of the misconduct revelations the applicant had commenced treatment with a counsellor expert in sex offending and with Dr Robert Bell, a psychiatrist who diagnosed him with a major depressive disorder. Notwithstanding some issues about the number of charges, the applicant always intended to plead guilty. A detailed forensic psychiatric report by Dr F I Curtis predicted that the applicant's prognosis was good and he was unlikely to re-offend.
[23]
[11] In careful and lengthy sentencing remarks the learned sentencing judge identified the young age of the daughter, the lengthy period of the offending, the significant breach of trust by a father and the devastating consequences for the complainant and the family as serious features of the offending. She noted the applicant's admissions and expressions of remorse before police or child safety officers had become involved and noted particularly that he had admitted to a longer period of misconduct than the complainant had described. She noted his early indication of a plea of guilty, his efforts at rehabilitation by undergoing treatment and the prognosis that he would not re-offend
[24]
[12] The applicant is concerned that her Honour did not take into account that, in effect, his sentence started from the day he confessed in June 2007 with the consequences that he lost his home, his family and was shunned at work. He mentioned in his outline to this court that his daughter is doing well in her apprenticeship; that she works; and that she has an active social life. In other words, whilst admitting that his actions must have had an adverse affect on her, she does not appear to demonstrate that she is "constantly suffering from depression and confusion"[2] as stated by his former wife. He also notes that there was no violence or threat in the relationship and it had come to an end some 12 months before the complainant spoke to her mother.
[25]
[13] The prosecution had sought a sentence on the maintaining count of 10 years imprisonment; the defence one of nine years. Her Honour carefully scrutinised the comparative sentences to which she had been referred, paying particular attention to factors identified in R v BAY[3] which entailed an extensive review of the authorities including R v SAG.[4] Her Honour considered the ten year cases and identified the features which made them more serious. She reviewed cases which supported sentences of seven to eight years including R v SAU[5] where the period of offending was considerably shorter and the child aged 14 when the misconduct began. As mentioned above, her Honour was particularly concerned at the long period during which this sexual misconduct occurred, the young age of the complainant when it commenced and the regularity of the sexual intercourse over almost two years of the relationship. Having fixed a head sentence of nine years she set the applicant's parole eligibility date at four years rather than the three years sought by the defence which reflected the range suggested by previous decisions of this court.
[26]
[14] As is often observed in sentencing, a balance needs to be struck between the factors favourable to an offender and those against him seen bearing in mind the numerous variations in the circumstances of the same offences in earlier decisions.
[27]
[15] The particular factor to which the applicant refers - his suffering since his confession - has been taken into account by her Honour in so far as it reflects his remorse. Otherwise it must be part of the lot of those who admit to serious criminal conduct and are remorseful that they will suffer both in themselves and because of the way they are treated by others. The factors favourable to the applicant were adequately reflected in the learned sentencing judge's reasons and in the sentence she imposed and she did not fall into appellable error.
[28]
[16] Mr Lehane contended that the learned sentencing judge erred in imposing a single sentence of imprisonment for the different offences.[6] If that were so, the court would be required to allow the appeal and exercise afresh the sentencing discretion. In sentencing the appellant in Crofts the sentencing judge said:[7]
[29]
"I will impose one sentence for all these offences ..."
[30]
The appellant had pleaded guilty to one count of attempted rape, one count of indecent assault and one count of assault occasioning bodily harm, all of which occurred during one encounter. The court explained[8] that while specific provisions in the Penalties and Sentences Act 1992 (Qld) provide for a single fine to be imposed for a number of different offences founded on the same facts or which are part of a series of events that are the same or similar, and a single probation or community service order may be made in respect of two or more offences,[9] there is
[31]
"... no such provision in respect of imprisonment and the expression 'term of imprisonment' used in Part 9 of the Penalties and Sentences Act is defined in s 4 as meaning 'the duration of imprisonment imposed for a single offence'."[10]
[32]
[17] That approach has been followed recently in R v Dolan[11] and R v HAP.[12] In Dolan the applicant pleaded guilty to trafficking in a dangerous drug, possessing a dangerous drug, and possessing a sum of money knowingly obtained from trafficking in a dangerous drug. The sentencing judge, as the court described it:
[33]
"... did not impose individual sentences on each count, but imposed a single sentence."[13]
[34]
[18] Furthermore, it seems that the judge did not attach that sentence to any particular count on the indictment. In HAP the applicant pleaded guilty to two counts of maintaining a sexual relationship with a child under the age of 16 with circumstances of aggravation and three counts of rape. He was sentenced to a single term of imprisonment of 13 years for all five offences. In both cases the court
[35]
re-sentenced the applicant imposing concurrent terms of imprisonment on each count.
[36]
[19] The prosecutor confined his submissions on sentence to count 1 as did defence counsel. When asked by the learned sentencing judge about appropriate sentences for the other charges the prosecutor responded that there were two possible approaches, that is, to impose a sentence on the maintaining charge and not to impose anything further in relation to the other counts or to impose sentences in respect of the other counts. He nominated appropriate sentences for them. Defence counsel agreed that a single sentence for the maintaining charge would "be easier and appropriate". When her Honour came to sentence the applicant her remarks related to the maintaining count. She concluded:[14]
[37]
"Therefore, taking in what I have been advised by Mr Nardone and Mr Eberhardt, I think the appropriate way to deal with this matter, bearing in mind the specific offending relate, as particularised two to nine part of count 1, the appropriate way to deal with the matter is just impose a penalty in relation to count 1 only which will be as follows: Nine years' imprisonment in relation to count 1. Order that the date you be eligible for parole be fixed at four years from today's date, 31 October 2012.
[38]
In relation to counts 2 to 9 inclusive I impose no further punishment in light of the fact I have dealt with count 1 in the manner I have."
[39]
[20] It is clear that this is not a case like Crofts, Dolan or HAP where one sentence for all counts was imposed. In Crofts the court said:[15]
[40]
"It is necessary to impose separate terms of imprisonment for each offence."
[41]
[21] That does not, of course, mean that a court after a plea or finding of guilt must impose a term of imprisonment but if the court does impose such a penalty then each offence to which a term of imprisonment applies must have pronounced in respect of it a distinct term of imprisonment. Furthermore, s 229B(7) Criminal Code permits charging one count of maintaining and one or more counts of a sexual nature arising out of the maintaining relationship while s 229B(8) provides that the accused "may be convicted of and punished for any or all of the offences charged" (emphasis added).
[42]
[22] There is one further matter to mention. Her Honour did not pronounce a conviction on counts 2 to 9 and then state that the applicant would not be further punished in respect of those counts, as often occurs. The applicant had been arraigned "in bulk"[16] before the Chief Judge on 20 August 2008 and pleaded guilty. By s 597C(2) that single plea of "guilty" is taken to be a plea "to any number of similar counts".
[43]
"When an accused person pleads that the person is guilty of any offence, and when, upon trial, an accused person is convicted of any offence, the proper officer is required to ask the person whether the person has anything to say why sentence should not be passed upon the person, but an omission to do so does not invalidate the judgment."
[44]
After the applicant had pleaded, the Chief Judge's associate, consistently with the requirements of s 648 and r 51 of the Criminal Practice Rules 1999 (Qld), addressed the applicant:[17]
[45]
"[Applicant], you have been convicted on your own plea of guilty of one count of maintaining a sexual relationship with a child with a circumstance of aggravation, five counts of indecent treatment of a child under 16 who was a lineal descendent, one count of attempted incest, and two counts of incest. Have you anything to say as to why sentence should not now be passed upon you?"
[46]
[24] Sentence was then adjourned to 31 October 2008.
[47]
[25] The formal demand of the proper officer of the court to the accused is known as the allocutus and signifies the acceptance by the court of the jury's verdict of guilty or the accused's guilty plea.[18] In R v Lowrie and Ross[19] McPherson JA explained the role of the allocutus in the modern criminal trial more fully:[20]
[48]
"Conviction on indictment is, generally speaking, the equivalent of judgment in civil proceedings: see Cobiac v Liddy[1969] HCA 26; (1969) 119 CLR 257, 270-273; and, taken by itself, neither verdict nor plea of guilty ordinarily constitutes conviction until it is accepted by the court, which is most often manifested by administering the allocatus [sic] preparatory to sentencing. See R v Jerome[1964] Qd R 595,
[49]
The conclusion must be that the applicant was convicted of all counts on the indictment when the allocutus was administered on 20 August 2008 and he made no objection.
[50]
[26] Finally, the judge at a criminal proceeding must ensure the indictment is endorsed with the particulars about the proceeding as set out in r 61 of the Criminal Practice Rules including the plea and the judgment. The endorsement on the present indictment records the plea of guilty "on all counts" and that the allocutus was administered. That is sufficient to signify the conviction of the applicant in respect of each offence. It occurred in open court[21] on 20 August 2008. There was, therefore, no error in the pronouncement of sentence.
[51]
[27] The application for leave to appeal against sentence is refused.