P v The Queen
[1986] FCA 145
•09 APRIL 1986
Re: P.
And: THE QUEEN
No. NT G27 of 1985
Criminal Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY OF AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.
Morling J.
Beaumont J.
CATCHWORDS
Criminal Law - incest and gross indecency - appeal against sentence - appellant sentenced to two cumulative periods of imprisonment - whether sentences manifestly excessive - appropriateness of non-parole period - need for sentence to reflect seriousness of offence
Criminal Law Consolidation Act s.74
Criminal Code ss.129, 134
HEARING
DARWIN
#DATE 9:4:1986
ORDER
The appeal be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
On 9 April 1985, in the Supreme Court of the Northern Territory, the appellant was convicted on his own admission of three counts of incest and one count of aggravated gross indecency. It may be more accurate to say that the appellant was convicted of gross indecency in circumstances of aggravation.
On 16 September 1985 he was sentenced to imprisonment with hard labour for six years on each count of incest, those sentences to be served concurrently. For the offence of aggravated gross indecency he was sentenced to imprisonment with hard labour for four years, that sentence to be served cumulatively upon the concurrent sentences for incest.
The total effective sentence was a period of ten years, with a direction that the appellant not be eligible for consideration for parole until he had served five years of the total sentence. The sentence was deemed to have commenced on 14 January 1985, the day on which the appellant was taken into custody.
The offences of incest related to the appellant's elder daughter who was born on 26 May 1969. The offences took place in May 1981, December 1983 and January 1985. The first two convictions were pursuant to s.74 of the Criminal Law Consolidation Act which imposed a maximum penalty of seven years' imprisonment. The third conviction was pursuant to s.134 of the Criminal Code which imposes a maximum penalty of fourteen years' imprisonment.
The primary judge was asked to take into account and did take into account, by reason of s.396 of the Criminal Code, six other counts of incest occurring between July 1981 and August 1984.
The offence of gross indecency related to the appellant's younger daughter who was born on 30 May 1972. The conviction was pursuant to s.129 of the Criminal Code which imposes, in the particular circumstances, a maximum penalty of fourteen years' imprisonment. His Honour was asked to take into account and did take into account a similar offence involving the same daughter which occurred on 13 January 1985.
At the time he was sentenced the appellant was 42 years of age. The two girls, of whom he was the father, were born as the result of a de facto relationship he formed in Kalgoorlie. The appellant was married at the age of 20 but that marriage lasted less than 12 months. There was one child of the marriage who was taken by her mother when she left the appellant.
After the birth of the two girls the subject of the charges and of a son who is second in age, the appellant met and married in Adelaide a woman with whom he lived for a few years, both in Adelaide and Tennant Creek. After that marriage broke up, the appellant moved to Darwin in 1980 where he lived with another woman and her children for a short time. The appellant then went to Mt. Isa to find work, taking his children with him. During that time the children were fostered out at the instance of child welfare authorities.
The appellant returned to Darwin where he lived with his children in caravan parks and camping grounds for three months until the Housing Commission found accommodation for the family in a flat. At the end of 1980 the appellant and his children moved into a three-bedroom house in one of the Darwin suburbs. Although he associated with a number of women after his return to Darwin, the appellant formed no regular relationship.
The conduct of the appellant in relation to his daughters came to the attention of the Darwin police at the instance of the younger daughter, following indecent assaults on her by her father under a threat of having intercourse with her if she did not agree.
It is apparent from the material before the Court, that the appellant had intercourse with his elder daughter on many occasions, beginning in Tennant Creek and continuing in Darwin.
The appellant has a record of other convictions - in Darwin, Tennant Creek, Adelaide and Kalgoorlie. Some of these convictions were for sexual offences involving young females.
The appellant was seen by a psychiatrist, Dr. Ferris; by a psychologist, Mr. Milliken; and by Ms. Bakermans, a probation and parole officer with the Department of Correctional Services. The most significant report, and that upon which the sentencing judge placed most reliance, was that of Dr. Ferris.
Dr. Ferris found no evidence of any signs or symptoms of a psychotic disorder. He formed the impression that the appellant's intelligence was within normal limits, probably low average. He regarded the appellant as suffering from an anti-social personality disorder, possibly brought about by his upbringing and childhood. The appellant presented as a person suffering from dependence on alcohol. Indeed the appellant tended to associate the offences of incest with the consumption of alcohol but his elder daughter denied that he was drunk on these occasions. Dr. Ferris' conclusion was that the appellant "carried out the offences over a long period of time in a consciously planned manner with full awareness of his actions".
Dr. Ferris was also of the view that the appellant's conduct had been psychologically harmful to his elder daughter "to a significant extent", producing problems "which can be expected to continue to affect her for at least the next several years, perhaps longer". In this regard his Honour's comment was:
"Your daughters now regard you, I am told, with hate and fear. Your eldest daughter believes you have wrecked
her whole life, and she observes, truly enough, to use her words, that she missed out on her childhood".
His Honour also formed the view, with which there can be no quarrel, that had the police not been brought into the matter, it was not unlikely that in the course of time the younger daughter would have shared the same experience as her sister.
This appeal is brought on one ground only viz. that the sentencing judge erred in imposing a manifestly excessive sentence. The appellant appeared in person but, at the instance of the Bar, counsel appeared as amicus curiae and made submissions on behalf of the appellant.
In our view there is no warrant for interfering with the sentence of imprisonment for six years, imposed concurrently in respect of the convictions for incest. There was not one isolated incident; the offences were not committed under great emotional stress; and there was no evidence to suggest that the elder daughter was in any way a willing party to what occurred. There was adequate material before his Honour to warrant his conclusion:
"It is pretty clear that at time when you were without a woman partner you used your daughter for your sexual
gratification, and there's nothing in the history of
your relationship with her which does you any credit at all".
In the context of legislation that provided initially for a maximum term of imprisonment of seven years and later for a maximum term of fourteen years, the sentences imposed by the primary judge were within range and have not been shown to be inappropriate, either by reason of manifest excessiveness or because of any error of law or fact. Indeed, if there was an error on the part of his Honour, it was that he may have approached the matter on the basis that seven years' imprisonment was the maximum penalty for each conviction for incest when fourteen years was the maximum for the third of those convictions.
As to the sentence of four years for gross indecency, it was appropriate that any sentence be cumulative upon those imposed in respect of the incest convictions. The offence related to a different child and was committed in circumstances unrelated to those involving the elder daughter. The maximum term of imprisonment for that offence was fourteen years since the female in question was under the age of fourteen years at the time and the appellant was an adult.
Although the maximum penalties for incest and gross indecency on a young child are the same under the Criminal Code, nevertheless a conviction for incest would ordinarily result in a more stringent penalty than that for gross indecency. In those circumstances, it may be argued that a sentence of four years imprisonment cumulative upon a sentence of six years for incest was disproportionate. We do not think this is so. The offence of gross indecency was a serious one and reflected an attitude on the part of the appellant to his younger daughter similar to that shown towards the elder daughter. He saw both girls as a means of sexual gratification.
We have given careful consideration to the appropriateness of the non-parole period. It was a term of five years in an overall sentence of ten years. A non-parole period of about half the head sentence is, we were told, the norm in the Supreme Court of the Northern Territory. In the case of a sentence for a lengthy term of years there may, in particular instances, be justification for imposing a non-parole period of less than half the head sentence' as an aid to rehabilitation. But, as was pointed out in R. v. Creed (1985) 37 SASR 566 a non-parole period, no less than a head sentence, must reflect the seriousness of the offence and operate as a deterrent to others.
In the circumstances we are not persuaded that the primary judge erred in the non-parole period he fixed.
The appeal will be dismissed.
0