K. v The Queen

[1983] FCA 249

Re: K.
And: THE QUEEN
No. NTG 15 of 1983
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Woodward J.
Sheppard J.
Neaves J.

CATCHWORDS

Criminal law - appeal against severity of sentence - incestuous rape - allowance to be made for plea of guilty - other relevant factors.

Parole of Prisoners Act (NT) s.4(5)

Criminal Law (Conditional Release of Offenders) Act (NT) s.5(1)(b)

HEARING

DARWIN

#DATE 28:9:1983

ORDER

1. The appeal be upheld and the sentence imposed on the accused on 26 May 1983 be set aside.

2. The accused be sentenced to imprisonment with hard labour for five years, commencing upon 26 May 1983.

3. The said sentence be suspended, after the accused has served 15 months of it, upon his then giving security by way of recognizance in the sum of $500 to be of good behaviour for a period of two years.

JUDGE1

This is an appeal against the severity of a sentence imposed in the Supreme Court of the Northern Territory for an offence of rape.

The prosecutrix was the 15-year-old step-daughter of the accused, who had been separated from the girl's mother for some months at the time of the offence. The girl, with her younger brother, was staying with her step-father for the weekend.

During the night the accused, apparently succumbing to a sudden impulse, went into the sleeping girl's room, got into her bed and, in the space of a few minutes, committed the offence of rape. The girl, not knowing what to do, feigned sleep. There is no suggestion that she consented to the accused's acts.

After the accused left her, she waited for a time, then got up, dressed, and found her way back to her mother's house. When her mother, who was out, returned at about 2.40 a.m., the girl told her what had happened.

The mother went straight round to the accused's house and confronted him. He immediately admitted what he had done. When the mother reported the matter to the police the next morning, the accused made a full confession, admitting penetration, which the girl had not been sure about. He did everything he could to ensure that his step-daughter would not have to go to court or give evidence.

The learned sentencing judge rightly took the view that the offence was a serious one, particularly having regard to the breach of trust involved in the accused's betrayal of his parental responsibilities. The girl had lived with him since she was 18 months old. His Honour sentenced the accused to seven years gaol, with a non-parole period of 3 1/2 years.

After carefully considering the severity of this sentence in the light of his Honour's reasons for sentence, the facts of the case and the previous good character of the accused, and particularly having regard to his plea of guilty, full co-operation with the police and obvious contrition, we have reached the conclusion that his Honour's discretion miscarried when he imposed the sentence that he did.

We have come to this conclusion mainly because of the factors we have last mentioned - the accused's plea of guilty, contrition and co-operation. The learned sentencing judge said that he had taken these matters into account, but we cannot feel that he took them sufficiently into account. The matter can be tested by asking what sentence would have been imposed if the accused had elected to deny the whole affair, or admit no more than an indecent assault, thus forcing the girl to give evidence. If nevertheless convicted of rape he must, on his Honour's approach, have received a sentence significantly longer than 7 years which, in our respectful view, would have been manifestly excessive, even for an incestuous rape, in the case of an unpremeditated single act not accompanied by violence. We believe that this is exactly the type of case in which a plea of guilty should be clearly rewarded. It was accompanied by remorse, demonstrated both by words and conduct, and the making of a full confession including matters which would otherwise have been difficult for the Crown to prove. Cf. R v Shannon (1979) 21 SASR 442 and R v Schumacher 3 A Crim R 441. Counsel for the Crown invited us to "give considerable weight" to these matters.

It seems that another reason for the miscarriage of his Honour's discretion was his understanding that some material before him had indicated that the incident had had "a profound effect" upon the girl, when in fact the only evidence was that the girl had said she had cried a lot on the night of the offence and been revolted by her step-father's act. There was other material tending to indicate that the girl had not been seriously affected.

A further matter to which we should advert is the considerable doubt which his Honour expressed as to whether the accused might not offend again, given the flawed character he had demonstrated. There was material before the court testifying to the accused's previously unblemished good character. There was also a psychiatric report to the effect that the likelihood of his re-offending was slight. He is 43 years of age and in our view it should be assumed in his favour that he is unlikely to offend again in any similar way.

Since we have concluded that his Honour's discretion miscarried, we must now undertake the sentencing task ourselves. In our view an appropriate sentence to mark the gravity of the offence, for which the maximum penalty is life imprisonment, would be 5 years imprisonment with hard labour. However, in view of the accused's previous good character, lack of premeditation, isolated offence, absence of violence, remorse, full confession, plea of guilty and unlikelihood to offend again in any similar way, we intend to direct, pursuant to s.5(1)(b) of the Criminal Law (Conditional Release of Offenders) Act, that his sentence be suspended after he has served 15 months of it, upon his then giving security, by way of recognizance in the sum of $500, to be of good behaviour for a period of two years. It is not necessary for us to fix a non-parole period, see Parole of Prisoners Act (NT) s.4(5).