THE QUEEN v R [2000] QCA 279

Court of Appeal (Qld)|2000-07-14|Before: Davies JA, Pherson JA, Mullins J

McPHERSON JA: This is an application for leave to appeal against sentences imposed on the applicant in the District Court in Brisbane following his pleas of guilty entered on an indictment charging him with a number of sexual offences committed against a young girl.

The applicant was sentenced to a term effectively of imprisonment for 11 years for maintaining a sexual relationship with a child under 12, with the circumstance of aggravation that she was in his care; to imprisonment for four years for three counts of indecent treatment of the same child, again when she was in his care; to nine years for two counts of raping that child; to eight years for three counts of carnal knowledge of a girl under 12, again when she was in his care; and to four years for two counts of indecently treating a child under the age of 12 years.

As I said, the sentence was effectively one of 11 years' imprisonment because those sentences were directed to be served concurrently.

At the time of the offence or offences for which he was sentenced on this occasion, the applicant was under a suspended sentence imposed in 1986, so that his conviction on this occasion reactivated that sentence and he became liable to serve the balance of his suspended period of sentence of 12 months. In addition, a period of 325 days of pre-sentence custody was taken into account by an appropriate declaration made by his Honour.

The offences were committed during a two and half year period between 1 January 1997 and 21 April 1999. During that period the applicant maintained a sexual relationship with the young complainant who was then aged between nine and 11 years, and was the daughter of a friend of the applicant whom he knew through his own sister.

The offences are of a revolting nature and it is not necessary I think to revisit them in more detail at present than to say that they involved touching the complainant on her breasts and vagina, masturbating in front of her to ejaculation, rape on separate occasions, oral sex, and inserting a vibrator into the complainant's vagina, as well as having her masturbate or touch him on the penis. On some occasions when she resisted his attentions and attempts to make her do these acts, he bribed her by promising to reward her in various ways thereby, in effect, in my opinion, submitting her to a form of prostitution at an early age.

Needless to say, the experience has had a markedly adverse effect on the complainant, on her schooling, and on her family as a whole. The child was, as I have mentioned, the daughter of a friend of his sister and the friend used to leave her children temporarily with the applicant when she was going out for some reason. She had no reason to suspect that he was dealing with her daughter in this way. Indeed, the friendship was sufficiently close for the children to address him as Uncle Eric.

At the time of the offences the applicant was himself between 39 and 41 years of age, and his age is plainly an exacerbating factor when account is taken of the fact that his victim was only nine, 10 or 11 years old at the time.

He is a self-employed excavator, with a reasonably good work record, and has a wife who suffers from muscular atrophy and is unable to look after herself. In consequence of the sentence imposed upon the applicant in this matter, she has had to remove to a hostel for disabled people where she can be looked after.

The applicant himself had a disadvantaged upbringing in Tasmania and left home at an early age. A psychiatric report suggests that his subsequent behaviour on that and other occasions may to some extent be attributable to his own childhood experiences. He told the psychiatrist when he was interviewed that at the age of 13 years his father forced him to have sexual intercourse with his mother, and that experience was followed by his leaving home and having a sexual relationship with a woman aged 54. One might reasonably suspect that his moral sense was blunted by these experiences; but I cannot help observing that the child in this case was a good deal younger even than was the applicant at the time he suffered the experiences which he reported to the consulting psychiatrist.

On appeal, it is acknowledged that the sentencing range for offences of this kind committed in circumstances like these lies between 10 and 12 years. The applicant's sentence of 11 years is therefore not challenged on the ground that it is beyond the range. Nor is it suggested that the learned sentencing Judge ought to have made a recommendation for parole. Once the appropriate sentence for these offences reached a level of 10 years the Judge had no power to recommend parole because the offences or some of them attracted an automatic declaration as serious violent offences.

This consequence would or might be averted if the head sentence were reduced to imprisonment for eight or nine years but that is not - and it is not suggested by

Mr Moynihan to be - a legitimate basis for reducing the head sentence here. The result is that the applicant's submission is in the end really confined to arguing that the learned sentencing Judge failed to take sufficient account of the various mitigating factors that are said to go in the applicant's favour.

They are or include his remorse as demonstrated by his reasonably prompt admissions and his pleas of guilty in this case, his dysfunctional family background, the fact that he has voluntarily and at his own expense submitted himself to psychiatric treatment and counselling, and also to the fact that his motivation for continuing that treatment seems to have continued even after he has gone to gaol.

For reasons that are well understood, pleas of guilty obviously count for something in circumstances like these. The applicant's offending behaviour was clearly established by later DNA testing on the vibrator to which I have referred, and that evidence afforded independent corroboration of the complainant's account of these events.

Quite apart from that, however, and even before the testing took place, the applicant had confessed to these offences and offered to plead guilty. The complainant was therefore saved the ordeal of a full committal and trial with all the difficulties for young witnesses that that entails. Had those matters stood alone it may well be that the head sentence in this case would have been viewed as excessive.

The real problem with the applicant here, however, is that it is not the first occasion on which he has offended in this way. In 1986 he was sentenced to imprisonment for a term of eight years on two counts of raping a 15 year old girl in her own bedroom. Unlike the rapes committed in the offences now before us, those acts were accompanied by the use of violence. The applicant was apparently released after about three and a half years of that sentence, so far as one can make out, on the footing that he was being given leave to work rather than, as far as I can gather, that he was being released on parole.

In 1996 he was then again convicted, this time of an indecent assault on a somewhat older woman for which he was sentenced to imprisonment for 18 months suspended after six months with an operative period of three years. The offence in that case was perpetrated on a visitor to the home and took place in his own house. The operative period was still in force when he began committing the offences that are now before us.

The pleas of guilty in this case may be fairly treated as a manifestation of remorse; but a close study of the psychiatric report tends to suggest that in the account he gave to his counsellor the applicant was inclined to place some of the blame for these offences on the complainant herself. On what I see of it, there is absolutely no substance at all in that assertion. The applicant, it may fairly be supposed, has contributed to the potential moral corruption of a young girl and he did so on occasions by overcoming her moral scruples to his own conduct by offering her bribes to participate in his unlawful sexual activity.

The real problem, as I say, is that he has a record of sexual offences on two occasions in the past, one of them involving the very serious offence of rape on a young girl in what I take to be her own home or the home of someone else. It is very difficult to see how, on an appeal like this, he could be given much credit for his pleas beyond the point which would evidently mark the level at which the Judge was prepared to act on those matters.

For my part, I am bound to say that I think the sentence is not low; but I do not see that there is any basis, for that reason or otherwise, for disturbing it on an appeal like this, having regard to the principles on which applications of this kind are determined. I would therefore refuse the application for leave to appeal against sentence in this case.

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