R v. T [1993] QCA 194 (31 May 1993)

Court of Appeal (Qld)|1993-05-31|Before: Pincus J, Thomas J, Fitzgerald P

This is an appeal against conviction of four counts of indecent treatment of a child and one count of maintaining an unlawful sexual relationship with a child. There is also an appeal by the Attorney-General on the ground of inadequacy of sentence.

The case involves the sexual molestation of a step child (K) between the age of 9 and 12. The period in question is between December 1989 and November 1992. The appellant married K's mother in 1987. There were three children, of whom K and her older brother, A were from a former union of the mother. A further child, J was born to the appellant and to the mother in 1986.

The appellant did not give evidence or call evidence.

Ground 1 alleges that the verdicts are unsafe and unsatisfactory. The first point that is made is the absence of fresh complaint. It is said that this is significant because there was an occasion in 1990 when the police were investigating sexual impropriety by the headmaster of the school which K attended. She (along with other children) were spoken to by the police, and it is said that this provided an opportunity for which a complaint against the appellant might be expected to have been made. It by no means follows that an investigation of that kind would or should elicit a complaint of abuse within the home. When K was asked in cross-examination why she had not made the allegations earlier, she said that she did not want to hurt anybody. Her explanation is credible and this is not a case where any particular suspicion arises from the circumstance that the conduct continued over a fairly lengthy period before she at age 12, finally told someone else about it. She told her teacher, Mr. Hall in November 1992, soon after the last incident, and she moved out of the house the same day.

The second particular mentioned under this ground is the absence of corroboration. It was properly and fairly emphasised by the learned trial Judge in his charge to the jury. It means, of course, that close scrutiny of the evidence is required, but it is not of itself an allegation of error. It is an important circumstance in the case and it is duly noted.

The next point made is that there were some inconsistencies in the accounts given by the complainant. The number and nature of the discrepancies relied on are not exceptional or unusual. They come down to a conflict as to whether she told the doctor that the appellant put his finger in her vagina only once, or (as the doctor claimed she said to him) frequently; and the failure to mention in her statement to the police that the appellant frequently induced her to put her hand on his penis. There is very little else, and the complainant's evidence cannot fairly be described as other than basically consistent.

It was submitted that the fact that the complainant had previously made a complaint of a sexual nature concerning the school headmaster is a ground of suspicion, but that allegation is without merit. It is not submitted that the complaint was unfounded, and in the context of what would seem to be an investigation into multiple acts of impropriety in the school situation, there is nothing in this circumstance which goes against the verdicts.

It cannot be said that a reasonable jury could not convict the appellant on the complainant's uncorroborated testimony.

Ground 2 (lack of balance in the summing up) was argued. The appellant's counsel could do no more than point out that in the summing up his Honour criticised some of the defence submissions and to submit that his Honour "leaned too far to the Crown". Particulars to support this submission are however lacking. It was not and could not be suggested that the defence case was not put, or that the defence points were merely raised for the purpose of demolition. (cf. R.v. Perera [1986] 1 Qd.R. 211; R. v. Schulz CCA unreported 19 April 1991). The criticisms of particular points which were made by his Honour in the course of the summing up (apparently on points suggested by counsel during addresses) are not of sufficient substance to warrant further discussion. They were well within the discretion of a trial Judge to make comments on the facts, and his Honour did not usurp the jury's territory. It is enough to say that the summing up in the present case does not approach the level at which a trial Judge may be said to have fallen into error through lack of balance or failure to put the defence.

In the course of the appeal an application was made for the introduction of fresh evidence. The Court considered the affidavit in support of the ground and ruled that it lacked the necessary cogency.

The appellant was sentenced, in effect, to four years imprisonment with a recommendation for parole after nine months. The effective sentence was imposed with respect to the count of maintaining an unlawful sexual relationship with a child (s.229D of the Code which permits a maximum sentence of seven years imprisonment). Concurrent sentences of two years and three years imprisonment were imposed with respect to the other counts.

The Attorney's appeal does not allege any inadequacy in relation to the head sentence of four years. The contention is that a recommendation for early release on parole was not justified in this case. Jurisdiction exists to alter a sentence by varying a parole recommendation, as a recommendation concerning parole is regarded as part of the "sentence" for the purposes of both s.668D and 669A Appeals (R. v. Hantzisavvas [1981] Qd.R. 74; R. v. Tilley (1991) 53 A.Crim.R.1.). There is no reason to think that s.157 of the Penalties and Sentences Act makes any change in this particular respect from that under s.166(3) of the Corrective Services Act 1988 (cf. R. v. Griinke [1992] 1 Qd.R. 196), or its predecessor s.53(2) of the Offenders Probation and Parole Act 1980. The real question here is whether there is "sufficient reason" to interfere with the decision below. (R. v. Osmond, ex parte, Attorney-General [1987] 1 Qd.R. 429, 436-437).

The relevant factors are these. The respondent to this appeal was 35 years old at the time of sentence. He had not been previously convicted of any offence. Indeed he was of good character and a number of references tendered on his behalf bear this out.

As against these personal factors, the offences were serious. They stopped short of sexual intercourse, but not by very much. It involved the abuse of his position as stepfather and authority in the household, and the taking advantage of a young girl, initially aged 9. The offences are such that there is a need for deterrence. That is not to say that a sentence of four years' imprisonment with a recommendation for consideration of parole after nine months is unlikely to have a deterrent effect. The only difference contended for on behalf of the Attorney-General is that the time for considering parole be deferred from 9 months to 24 months. The respondent will, in any event have been subjected to a not insignificant period of prison life. There is no suggestion of a likelihood of recurrence. The circumstances show a person for whom the chances of rehabilitation are good. His work history stands to his credit to some extent. He was a linesman for Queensland Railways until 1986, and after that he worked firstly on his father's property and then at home. The present case is one to which the offender stands to be punished for an extended departure from acceptable conduct in a man otherwise of good character. It would seem that his own actions have already cast a shadow on his life, in that he has lost access not only to A and K, but to his own son, J who is now 7 years old.

Whilst the recommendation may be regarded as being on the generous side having regard to the seriousness of the offences, we cannot say that it represents a wrong exercise of the sentencing discretion or that this Court should now increase the penalty by deleting the recommendation.

The Attorney-General's appeal against sentence will also be dismissed.

I have read the reasons for judgment of Thomas J. and agree with his Honour's view that the appeal against conviction should be dismissed. It seems to be relatively common in this sort of case that the abused child does not complain, for a substantial period of time, of conduct which would induce quite a different response from an adult victim. Further, the implication underlying the argument for the appellant T appears to be that a conviction of sexual molestation of a child cannot stand unless the details of the story told, or reported as having been told, on different occasions, have a high degree of consistency. It does not appear to me that this should necessarily be so; it is not surprising that young children subjected to this sort of treatment may explain what has happened to them in different ways on different occasions and may be uncertain as to frequency and as to the order of events.

A more troubling aspect of the case, in my respectful opinion, is the learned primary judge's recommendation that parole be considered after 9 months. The most cogent reasons for this were that T was, apart from these offences, said to be a man of good character who had not previously been convicted, that he might suffer from the attention of other prisoners during his time in goal and that he had, on account of his offences, perhaps lost the chance of access to his own son aged 7. In addition to these considerations the judge appears to have taken into account that T appeared to be a keen and enthusiastic gardener; it is difficult to see why that should have had a bearing upon the outcome.

As the explanation of the nature of the offences to be found in the reasons of Thomas J. makes clear, the case is quite a serious one and the judge's sentence, insofar as it recommended early parole, was obviously lenient. It has to be kept in mind that as his Honour said, he heard no word of remorse from T. 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.

I have found myself unable to avoid the conclusion that the learned primary judge treated the matter too lightly. The offences appear to me of such a kind as to be likely to cause harm to the complainant; perhaps the judge gave too little weight to that factor. The disparity between the punishment which was appropriate and that which was imposed is in my view of sufficient magnitude to require the Court to interfere.

No complaint was made of the head sentences; I would allow the Attorney's appeal against sentence, to the extent of setting aside the judge's recommendation for early parole.

Corrective Services Act 1988

Offenders Probation and Parole Act 1980

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