R v Trost [1995] QCA 486

Court of Appeal (Qld)|1995-11-03|Before: Before Fitzgerald P, Pincus J, McPherson J

The applicant has applied for leave to appeal against sentences imposed in the District Court at Toowoomba on 24 August 1995. He pleaded guilty to maintaining an unlawful sexual relationship with a child under the age of 16 years between 4 July 1989 and 27 April 1992, and five offences of indecent dealing with a child under the age of 12 years on dates unknown in 1992 and 1993. The offences related to four grand-daughters of the applicant.

The first count concerned L, who was aged between 9 and 12 at the material time. Her evidence was that she stayed with her grand-parents during school holidays up to Easter 1992, except for the Christmas school holidays at the end of 1991, when she refused to do so. For as long as she could remember, the applicant touched her sexually when she was at his house. She gave specific instances of the applicant rubbing her vagina and inserting fingers into her vagina, sometimes causing it to bleed. On occasions, she was required to fondle his penis to the point where he ejaculated.

Another grand-daughter, M, gave evidence that, when she was 9 or 10, the applicant interfered with her a number of times under his house. She said that he moved his fingers around both outside and inside her vagina. The applicant admitted that this had occurred on two occasions.

A fourth grand-daughter, R, said that, on a single occasion when she was 7, the applicant inserted his finger into her vagina.

When initially confronted, the applicant denied the allegations, but later admitted that he had touched C, M and R. However, he did not fully acknowledge his conduct with those three children and tried to reduce the impact of his actions by suggesting to the police some sort of educational explanation for his behaviour. He did not confirm L's complaint, but advanced a bizarre reason for touching her to hide the truth. Later, the applicant expressed some regret and, through his counsel, he expressed disgust for his conduct and remorse, although the sentencing judge found it difficult to delineate between his remorse for himself and his remorse for what he had done and the damage he had caused to his family. The judge also referred to the applicant's plea of guilty, although that occurred only after L had been cross-examined at the committal and the charge relating to her had been listed for trial. C, M and R had not been cross-examined. His Honour said that although the pleas of guilt in relation to C, M and R could be regarded as early, that was not so in relation to L, although all children had been saved the significant trauma of giving evidence at the trial. Accordingly, the judge said that he intended to give the applicant the benefit of an early parole recommendation.

Reference was also made by the sentencing judge to the applicant's previous good character, his advanced age (64 years), that he had been married for 44 years, and that he had a number of quite significant medical conditions; the applicant was in receipt of a disability pension as a result of back injuries sustained while working with the same employer for 29½ years, and had suffered a heart attack two to three years ago and now suffers from ischaemic heart disease. However, his Honour considered that general deterrence was of importance, and noted the abuse of the applicant's relationship with his grand-children, treating L, who was in his care at the relevant time, as a plaything over an extended period when she was very young. Further, the other three girls had been molested when they were very young.

Before this Court, counsel for the applicant was unable to point to any additional factors, but emphasised that the offence against L, although occurring over a period of almost three years, involved only a limited number of incidents; it was said that there was only one incident in 1989, three incidents in 1990, and a series of incidents in each of the Easter, June/July and September school holidays in 1991, and only one incident in 1992 (in which L refused to participate). Similarly, it was said, there were not a large number of occasions involving C, M and R. Further, none of the offences involved any substantial force or any threats of intimidation. However, there was evidence that the applicant used L's natural affection for him to manipulate and confuse her, saying, "If you loved me, you wouldn't leave me."

The principal difficulty with the sentences imposed, as the prosecution recognised, is that the sentencing judge obviously became confused in the course of sentencing. He imposed a sentence of four years' imprisonment on the offence of maintaining an unlawful sexual relationship with L, and sentences of imprisonment for 18 months on each of the indecent dealing charges, two in relation to C, two in relation to M, and one in relation to R. It seems that he intended that the sentences imposed in respect of each of C, M and R should be concurrent with each other, but that otherwise the sentences imposed in relation to each child should be cumulative, making a total of eight and a half years' imprisonment. He added:

"As a reflection of your early plea of guilty and having regard to your age and previous good character and the matters in mitigation to which I have referred, I recommend that you be considered eligible for release on parole after serving three years of that sentence."

Before this Court, it was common ground between the applicant and the prosecution that the sentences imposed by the judge did not in fact have the effect which he envisaged, and that he had made all sentences in relation to C, M and R concurrent with each other, making a total of 18 months' imprisonment, which was made cumulative with the sentence of four years' imprisonment imposed in relation to the charge involving L. Thus, the overall total was five and a half years' imprisonment. It was also common ground that, in the absence of any appeal by the Attorney-General, that is the point from which this Court must start, and indeed, without being more precise as to the component sentences, it seemed to be accepted that such a sentence properly reflected the applicant's overall criminality.

That left only the sentencing judge's recommendation for the applicant's early release on parole; obviously, the period chosen, three years, cannot be related to a head sentence of five and a half years' imprisonment if mitigation is intended: see Corrective Services Act 1988, sub-s. 166(1)(b), and Penalties and Sentences Act 1992, sub-s. 157(2). For the applicant, it was submitted that this Court should substitute a recommendation that the applicant be considered for release on parole after 18 months, while the prosecution submitted that a period of two years was appropriate. In our view, it is the latter view which more appropriately results in a suitable sentence for the applicant.

Accordingly, the application should be granted and the appeal allowed to the extent of setting aside the recommendation that the applicant be eligible for release on parole after serving three years of his sentence, and substituting a recommendation that the applicant be eligible for release on parole after serving two years of that sentence. The sentences, which, as we have indicated, aggregate a period of imprisonment for five and a half years, should otherwise stand.

APPEAL ALLOWED TO THE EXTENT OF SETTING ASIDE THE RECOMMENDATION FOR RELEASE ON PAROLE, AND SUBSTITUTING A RECOMMENDATION THAT THE APPLICANT BE ELIGIBLE FOR RELEASE ON PAROLE AFTER SERVING TWO YEARS' IMPRISONMENT.

CATCHWORDS: CRIMINAL LAW - sentence - unlawful sexual relationship with a child under the age of 16 years - indecent dealing with a child under the age of 12 years - recommendation for early parole - mitigating factors.

Queensland Director of Public Prosecutions for the Respondent

Corrective Services Act 1988

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