R v a

[1996] QCA 137

[1996] QCA 137

COURT OF APPEAL

MACROSSAN CJ
McPHERSON JA
PINCUS JA

CA No 55 of 1996

THE QUEEN

v

A  Applicant

BRISBANE

DATE 29/04/96

JUDGMENT

THE CHIEF JUSTICE:  This appeal against sentence is directed to, two only, of the sentences imposed upon the applicant.  He had been charged with a number of offences all involving the same male child and was sentenced to a range of penalties.  The range was between three years and 12 years.  There were indecent dealing charges and as well there was a sodomy charge and the applicant was sentenced to 10 years in respect of that and there was a charge of maintaining a sexual relationship with a child under 16 with a circumstance of aggravation of having unlawful anal intercourse and, in that case, the penalty was 12 years' imprisonment.

The argument for the applicant is that the penalties for the two most serious offences were manifestly excessive and, in particular, that the penalty of 12 years' imprisonment was excessive.

The boy concerned was aged 11 and 12 during the time that the various offences charged took place.  The applicant pleaded not guilty and was convicted after a trial.  He did not give, or call, evidence at the trial.  One has, of course, enormous sympathy for the victim of the applicant's behaviour.  The life of this boy undoubtedly would have been adversely affected by the offences perpetrated against him.

It should be mentioned, at this point, that there was no evidence of violence against the boy in the course of the commission of the offences or any threats issued by the applicant to achieve his objective.

At the sentencing procedure below the Crown suggested that an appropriate range was one of 10 to 12 years.

The circumstances should be described a little further.

The applicant was a friend of the complainant boy's father.  The sodomy which was the subject of count 4 in respect of which the penalty of 10 years was imposed occurred at the Wivenhoe Dam.  The applicant was with both the complainant and his brother and while the applicant was commencing to sodomise the complainant the brother was present.  He was then sent outside to act as look out, it is said, and there is substance in the suggestion that the offence was made worse by the extent to which the complainant's brother had been involved as a spectator or bystander.

Other acts which occurred in the course of the relationship between the applicant and the complainant which were the subject of other charges involved intimate sexual touching, taking of the complainant's penis in the applicant's mouth and matters of that kind.  It is possible, of course, to say that the anal intercourse episodes were outstandingly the worse when one reviews the behaviour that took place.

The Judge, in sentencing, referred to the extent of significant sexual abuse which had taken place, found an additional adverse feature in that the applicant was a friend of the complainant's father and there was a situation of trust which had been abused.  He indicated that the applicant had displayed no remorse at all.  In fact, he fled from the jurisdiction when he was first charged and had to be extradited back from the Northern Territory.

The Judge made his own assessment of the adverse effect upon the complainant child which would have been the consequence of the criminal activity.  The Judge described the boy as entirely innocent before being involved by the applicant and this is a further circumstance which attracts sympathy.

The complainant had other misfortunes to confront.  He had a significant hearing impediment and difficulties with speech and the sentencing Judge formed the view that he had some intellectual difficulties.  As I have indicated the general circumstances undoubtedly increased the feeling of sympathy which one would have for the complainant as victim.

The applicant had a criminal history which is of relevance for our purposes.  In 1980 he had been convicted of an aggravated assault of a sexual nature on a female.  There were four charges involved.  On that occasion, he was placed on probation for three years.  He offended, again, in 1988 when he was dealt with for indecent dealing with a boy under the age of 14, there being three such charges, and we are told that the boy concerned was a 12 year old and as well indecent dealing with a girl under the age of 14, again, a 12 year old who was, it is a matter of concern to see, the daughter of a friend of the applicant.

The applicant, on that occasion, was sentenced to a term of imprisonment of six months and, again, placed on probation for a period of three years.  He is thus a repeat offender who has not learnt from his previous experience.  However, it can be noted that the longest term of imprisonment to which he had been sentenced prior to this present case was a term of six months.

What this present application then comes down to, in my opinion, is the need to consider the indications which emerge from a comparison with similar cases and the penalties which have been imposed in them.  The applicant relies upon three cases in particular and the argument, on behalf of the Crown, seems to concede that they are the most relevant or, at least, as relevant as any others.  The cases were H, CA 27 of 1995; Kingwill, CA 75 of 1993 and K, CA 203 of 1993.

In H the offender had been a 59 year old and the complainant was his mentally retarded step-daughter.  The offences continued over a period of some three and a half years starting when the girl was 13.  At the commencement the offender there had raped the girl concerned.  The offender H was sentenced to a term of 10 years imprisonment which the Court of Appeal described as high.

In Kingwill the boy involved was between the ages of 11 and 15 when the offences were committed.  The offender was sentenced to a term of 10 years' imprisonment.  One has the impression, on examining the facts closely in Kingwill that the circumstances were worse.  There was, however, a plea of guilty.  The sentence was not interfered with.

The third case to which I have referred was the matter of K.  Below, a sentence of six years had been imposed.  The offences involved there had extended over a period of some two and a half years and there were three complainants, two girls aged between 11 and 14 and 13 and 16 respectively while the offences were going on and a boy the offender's son who was between the ages of 6 and 9 when the offences occurred.

The behaviour involved itself seems worse as a matter of broad comparison with the present case but there had, however, been a plea of guilty and there had been no previous criminal history.  The Court of Appeal increased the penalty in K to 12 years but made a parole recommendation after four years, no doubt influenced by the plea of guilty that had been entered.  Exact comparison with the circumstances of other cases is often not possible and frequently not very helpful but it can be of general assistance.

When we look at those three cases in particular and consider generally as well the range of penalties which this Court and other Courts have imposed or upheld the impression remains that the effective penalty of 12 years in the present case was high and, indeed, too high.  In my opinion it should be judged to be excessive.  I would favour allowing the application and setting aside the sentence imposed below of 12 years on count 8, allowing the appeal for that purpose to substitute a sentence of 10 years, but otherwise not interfering with the sentences imposed below.

I would add that in view of this offender's criminal history it is obviously a case where the authorities involved should be extremely careful when considering any application for release on parole which should be made to them.

McPHERSON JA:  Comparatively speaking, that is, by reference to some of the cases to which we were referred in the course of submissions, the sentence in this instance is capable of being considered high.  However, the applicant has a record of prior convictions for sexual offences of this kind committed against a number of different children of either gender.

He was first convicted in 1980 on four charges of aggravated assault of a sexual nature on a female.  There were three different girls involved on that occasion, aged 11, 7 and 9; and he was convicted again in the Ipswich District Court of three charges of indecent dealing with a boy and indecent dealing with a girl under the age of 14, involving two charges, in 1988.

When regard is had to those matters and to the fact that, at least in the case of the conviction in 1980, the penalty involved was lower than it is now, I think that the terms imposed on him on those occasions can be explained by factors that do not operate in his favour on this occasion.

All matters considered, I would not be disposed to interfere with the sentence in this application but I understand that my brothers are of a different opinion.

PINCUS JA:  Mr Bullock for the Crown submitted that it is hard to compare the sentences in the three cases on which the applicant relies.  That is so, but the Court must do the best it can.  The most important of them, perhaps, is K (CA 203 of 1995) where this Court itself fixed the penalty in a case described by Mr Justice Ambrose as being one in which "it would be hard to  imagine more serious breaches than the conduct prohibited under section 229B of the Code".

K is, it seems to me, plainly a worse case, as to the offences committed, although there were circumstances favourable to K such as his lack of previous convictions.  The other two cases which Mr Lynch referred to are, as the Chief Justice has pointed out, implicitly conceded to be, and seem to me correctly conceded to be, helpful.  Considering their facts and doing the best I can to compare them with those of the present case, I feel compelled to the conclusion, like that of the Chief Justice, that the penalty imposed was too high.

I agree with the order the Chief Justice proposes.

THE CHIEF JUSTICE:  The order will then be as I have indicated.

...

THE CHIEF JUSTICE:  We will allow the appeal in respect of count 8 setting aside the sentence of 12 years there imposed and substituting one of 10 years and allow all of the other sentences to stand.