R v B

[2000] QCA 42

[2000] QCA 42

COURT OF APPEAL

McPHERSON JA
DAVIES JA
WILSON J

CA No 345 of 1999

THE QUEEN

v.

B  Applicant

BRISBANE

..DATE 24/02/2000

JUDGMENT

McPHERSON JA:  The applicant for leave to appeal was convicted on his own pleas of guilty in the District Court at Brisbane in respect of two counts of incest; that is, unlawful carnal knowledge with a lineal descendent.  He was sentenced in respect of each offence to imprisonment for six years with a recommendation for parole after two years, the terms of imprisonment to be served concurrently.

The two offences were committed between 31 March 1980 and 10 May 1980 in respect of count 1, and on or about 14 May 1980 in respect of count 2.  The complainant was, at the time, aged 14.  She is said to have been mildly intellectually disabled and she was the daughter of the applicant.

On two occasions the applicant threatened the complainant with violence in order to have her engage in sexual activity with him.  On the first occasion he made her have oral sex with him and then sexual intercourse.  Both acts culminated in ejaculation.  He then told her that if she informed anyone she would be in trouble.

On the second occasion he put his fingers in her vagina, had her play with his penis and then engage in sexual intercourse. On this occasion again he threatened her with trouble if she told anybody. 

Two days after the last event the complainant was despatched to Wilston Youth Hostel.  Her claims of abuse were repeated there but not believed.  However, after attending a lecture on child abuse in 1997, she made the complaint which led to this prosecution.

The applicant made admissions in the course of what is described as a pretext phone call and he later confessed to the police in a formal interview that he had had intercourse with his daughter.

The grounds advanced in support of the application for leave to appeal are that the sentence is manifestly excessive.  The applicant's earlier denial of the offences, which appears in a presentence report which was before the sentencing Judge and is now before us, has been explained on the basis that his wife was present when he was interviewed and he was consequently ashamed to confess the offence in front of her. 

This argument is advanced in order to demonstrate that, despite the applicant's apparent denial of the offences in the report to which I have referred, he was in fact remorseful and he did, as appears from his being sentenced after that report was made, adhere to his plea of guilty.

The applicant made admissions to the police which led him to being charged.  It is said that, without those admissions, the Crown case would have been very weak.  That is a factor which may go slightly, but only very slightly, in his favour.  It is the fact that a great many of the prosecutions of this kind would not be possible without some form of admission, sometimes a full confession, by the person accused.

It goes in his favour that the committal was disposed of on a full hand-up brief for the purpose of saving the complainant from having to go through the trauma of giving evidence.  The applicant pleaded guilty at a reasonably early stage, notwithstanding the denial to which I have referred.

The personal circumstances of the applicant are that he was 34, at the time these offences were committed and 63 years of age at the time of sentence.  His date of birth is 12 December 1935.  He has no prior criminal record and his employment history is good.  He worked most of his life as a driver of passenger trains for the Queensland Railway system and retired due to ill health in 1992.  He fathered a quite numerous family of some seven children and he and his wife, who has had health problems of her own, have been married and living together for some 41 years or so. 

Even so, and bearing in mind all these factors, I do not find myself able to regard the head sentence as beyond range.  A sentence of imprisonment for six years is, in my view, not in itself excessive.  The decision of this Court in R v. Green [1997] 1 QdR 584 is an indication of the tariff or standard of penalties in cases of this kind. Except in the most detailed and particular way, into which this Court would not ordinarily descend on an application like this, there is no substantial difference, that I can see, between the facts of this case and those of Green, and one may reasonably infer that his Honour here was acting on the standards set by that and other cases of its kind afforded by decisions of this Court in more recent times.

It follows, in my view, that the head sentence cannot fairly be challenged in this Court, particularly having regard to some of the details accompanying the treatment of the complainant, into which I have not thought it necessary to go in discussing his offences in these reasons.

The real question, and the focus of serious concern in this case, is the fact that the applicant's present state of health is very poor indeed.  He suffers from emphysema, and the prognosis is that he will probably live for only about another two years.  His Honour took account of this fact and also of the applicant's pleas of guilty by recommending parole after two years. 

In R v. Pope (CA 271 of 1996) it was said that the ill health of an offender is a factor tending to mitigate punishment when it appears that it will impose a greater burden on the offender than on others, or when there is a serious risk that imprisonment will have a gravely adverse effect on his health.

It may seem, and no doubt is, rather callous and heartless to say so, but, apart from the loss of personal liberty necessarily involved in the imprisonment of the applicant, it does not appear to me that the applicant will be much worse off in prison than he is now at home.  According to the medical report which was placed before his Honour, the condition from which he now suffers is such that he is unable to walk more than the distance of about a block on flat or even ground, and that he has a state or condition of morbid obesity which practically immobilises him altogether.

In consequence, he is unable to do much more than sit about at home, although no doubt he has the company of family and possibly some friends from time to time.  The evidence seems to suggest that he leads a rather isolated existence.  He is said to take no interest in public or private events around him.  He is in constant need of oxygen in order to offset the illness from which he suffers but there can be little doubt that he will be provided with that facility in prison.

It will no doubt be expensive to look after his needs in detention, but the Crown naturally and rightly faces that prospect with resignation, if not equanimity.

There is no detailed evidence that his condition will deteriorate while he is in prison.  There is a general statement in the medical report to which I have referred, or supplement to it, that his health will deteriorate and that a prison sentence is in effect a death sentence.  I must say, however, that that does not seem to my mind to be readily reconcilable with the fact that, according to the earlier report, his life expectation is already only about two years. 

The consequence is, of course, that if he serves out the term of his imprisonment, even as reduced by the parole recommendation if given effect, that he will die in prison.  One may have considerable sympathy for a person who spends the remaining last few years of his life in that environment, but I am not at all persuaded that it is the kind of sentiment to which we should give effect in reduction of this sentence.

His condition now is, on all the evidence before us, about as bad as it can be and, on the face of it, there is no compelling reason for not giving effect to the sentence imposed, apart from natural sympathy for a fellow human being, which is something that, I regret to say, it is not  within the scope of the sentencing power in a case like this to take into account.

It may also be noticed that, when confronted by a somewhat similar state of affairs in the case of R v. Cochrane
(CA 345 of 1999) the Court drew attention to s.166(4) of the Corrective Services Act which confers on the Parole Board or the prison authorities a complete discretion to grant parole in cases of special circumstances.  It would no doubt be possible and appropriate for that power to be considered and exercised if the condition of the applicant in detention is seen to be such that it would be unduly harsh to oblige him to continue serving the sentence.

In saying that, I am not either indicating a preference for the idea that he might be released in the future or any degree of opposition to it.  It is a matter to be considered under s.166(4) by the appropriate tribunal when the time to consider it arises.

In the result, I would refuse the application for leave to appeal in this case.

DAVIES JA:  I agree.

WILSON J:  I agree with the presiding Judge that the application for leave should be dismissed.

While I recognise that his life expectancy is short I am not persuaded that it will be shortened further by incarceration or that his health will suffer to any relevant degree by his being in prison.

McPHERSON JA:  Yes.  The order of the Court is that the application for leave to appeal is dismissed.

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