R v. B

[1997] QCA 136

[1997] QCA 136

COURT OF APPEAL

DAVIES JA
THOMAS J
LEE J

CA No 93 of 1997

THE QUEEN

v

BApplicant

BRISBANE

DATE 09/05/97

JUDGMENT

LEE J:  This is an application for leave to appeal against sentence.  On 11 February 1997 the applicant was convicted in the District Court at Gladstone, following his pleas of guilty on five counts of indecent dealing with a girl under the age of 14 years, one count of attempted rape and three counts of indecent dealing with a child under 16 years who was in his care.  His co-accused was his de facto partner, H, who was the complainant's natural mother.  She was convicted on her pleas of guilty of three of the above charges, two of the counts of indecent dealing with a girl under the age of 14 and the count of attempted rape.

The matter came on for trial.  Both accused pleaded not guilty.  The jury was released until the next day because of legal argument.  The Crown applied for an order that the complainant, then aged 17, be screened from the applicant and co-accused while giving evidence.  The complainant gave evidence in the absence of the jury to the effect that she would be embarrassed and upset in giving evidence in view of the applicant, who was the partner of her mother, as well as in view of her mother.  The Judge declined to order such a screening.  Next morning, the applicant and his co-accused then changed their pleas to guilty as indicated above and the Crown entered a nolle prosequi with respect to the remaining counts on the indictment.

The trial Judge, whilst recognising that these were late pleas, took them into account in sentencing, with particular reference to the fact that the complainant was spared the necessity of giving evidence as well as the saving of a three-day trial.  The applicant was represented by counsel, as was his co-accused.

On 13 February 1997 the applicant was sentenced to three years' imprisonment on each of the five counts of indecent dealing of a girl under 14 years, four years' imprisonment on the attempted rape, four years' imprisonment on one of the counts of indecent dealing with a child under the age of 16 who was in his care, and six years' imprisonment on the remaining two counts of indecent dealing of a child under the age of 16 who was in his care.  All sentences were ordered to be served concurrently.  No recommendation was made.

The maximum penalty for indecent dealing of a girl under age 14, when committed in 1989, was seven years' imprisonment; attempted rape, 14 years' imprisonment; and 10 years on all other counts.  All offences involved the same complainant, who was born on 23 October 1979.  As indicated, the complainant was the daughter of H who was also sentenced for her part in three of the offences.

The complainant's mother had lived with the applicant for about nine years.  She had separated in 1986 from her husband, P, who is the complainant's father.  The complainant lived with her mother until 1987 when she and her younger brother, B, went to live with their father.  It was at about this time that the complainant's mother commenced a relationship with the applicant.

Just before Easter 1989, H telephoned P, who lived with the children at Morayfield, and asked if the children could visit her at Biggenden.  The applicant and H collected the children, with P to collect them at the end of the holidays.  The complainant was nine years of age at the time and all five counts of indecent dealing with a girl under age 14 and the attempted rape occurred in that period.

The first incident occurred when the complainant was watching television in the lounge-room with the applicant.  Her mother was out of the room making lunch.  The applicant spoke to her.  She looked in his direction and then saw that he had pulled the leg of his shorts across and had his penis exposed.  He told her to suck his penis and she did so.  He was holding onto his penis and rubbing it whilst it was in her mouth.  It was only in her mouth a few seconds before she said she did not want to do it and walked out of the room and brushed her teeth straight away.

The second count of indecent dealing occurred in the same period some few days later.  One night she was lying in bed reading a book and then turned off the light.  A short time later her mother came into the bedroom and woke her up.  Her mother was wearing only a pair of underpants.  The mother asked if the complainant wanted to come to their bedroom.  She went to the bedroom with her and the applicant was awake under the covers.  Her mother got under the covers and the applicant motioned to the complainant to sit on the bed between them and to get under the covers.  When under the covers, she felt the applicant put his hand up underneath her nightie between her legs.  He removed her underpants to one side and started to feel around her vagina with his finger and inserted his finger into her vagina and moved it in and out for a short time.  The complainant became scared and pushed his hand away and told him not to do it.  She then got out of the bed.  Her mother was lying on the other side of her with her back on the pillow but facing towards the complainant and the applicant.

Count 3 occurred soon thereafter.  The complainant's mother came into her bedroom and asked her to come into their bedroom.  Her mother said to her that she could take off her nightie if she wanted.  The complainant did so and got into bed.  Her mother and the complainant were in bed on either side of the applicant and the applicant touched the complainant on the vagina after pulling her underpants to one side.  He also inserted his finger in her vagina and moved it in and out.  The applicant and the mother started to talk to each other and the complainant asked her mother if she could leave and then did so.

Some time after the complainant went back to bed her mother came back into the room and requested her to go into the mother's room.  Once in the bedroom her mother told her to take off her nightie and underpants.  The complainant asked why but does not recall if anything was said.  She complied and took off her clothes.  Her mother told her to lie on the bed.  She asked what they were going to do and the applicant said, "Put your legs apart."  She looked at her mother who said, "Go on."  The applicant then got into bed and was on his knees facing her.  He bent over placing his hands on either side of her head and she saw that his penis was erect.  The applicant said to the mother, "Pass the baby oil."  The mother obtained it.  The applicant rubbed the baby oil on the complainant's vagina and his penis and tried to insert his penis.  It hurt and she tried to push him away.  The complainant told her mother that she did not want him to do this and her mother said, "Don't make her do anything she doesn't want to."  The complainant left.

The two remaining counts of indecent dealing occurred soon thereafter.  The applicant came into the bathroom while the complainant was having a bath.  He asked if he could wash her back.  She shrugged and the applicant started to wash her back with a face washer and soap.  When doing that the applicant asked her to turn around and get up on the edge of the bath.  She did so, he soaped his finger and inserted it into her vagina and moved it in and out for a short while.  He then stopped, washed his hands and left.  The remaining incident was of a similar kind.

After the holidays, P, the complainant's father, went to Biggenden and picked up the children.  On the way back she complained about some of the incidents.  She told him the applicant said that if she told anyone he would shoot her and B.  A complaint was made to the police and the complainant was interviewed on video but the matters were not proceeded with, the police telling the complainant she would not be strong enough to give evidence.  After the interview, P contacted the applicant and told him he was aware of what was happening, and the applicant instructed solicitors to send letters to P threatening a defamation action.  P desisted in following the matter up.

The first count of indecent dealing with a child under the age of 16 who was in his care occurred in the June holidays of 1994.  The applicant and B went to Home Hill by train and were picked up by the applicant.  After arriving at the house, the applicant started talking to her about sexual matters.  She spoke to her mother and said she was scared of him and did not want him near her.  The mother said there was nothing to worry about and that he would not hurt her.  While in the bathroom getting dressed but only with her bra and underpants on, the applicant came in and put his arms around her and placed his hands on her breasts saying, "I like your tits."  She told him to stop and he left.

The remaining two counts of indecent dealing with a child under the age of 16 in his care occurred at the end of the 1994 holidays and into early 1995 when the complainant was aged 15.  She and B were again visiting Home Hill and had returned from the pool.  On return they observed the complainant's mother in the bedroom engaging in sexual activity with the applicant.  The mother desisted and went into the kitchen.  The applicant asked the complainant to come into the bedroom and asked her to suck his cock.  She said she did not want to and the applicant continued to ask her and started to rub her on the outside of her shorts in the area of the vagina.  He asked her to touch his penis and she did so by rubbing her hand up and down for a short time.  B soon after walked into the bedroom and saw the applicant touching the complainant in the area of her vagina and saw her looking quite upset with her hand on his penis.  B also gave a statement to the police.

The final count occurred in the same period.  The complainant went to bed after watching television.  She was almost asleep when the applicant and her mother came in.  They were talking about sexual matters.  The applicant asked the mother if she wanted to have sex and the mother said, "No."  The applicant came over to the complainant and asked her if she wanted to have sex and she said, "No."

The applicant pulled the sheet off her and she saw that his penis was erect.  He asked her to put his penis in her mouth with which she complied.  After a short time he indicated he was going to ejaculate and later pulled his penis out of her mouth and masturbated until he ejaculated.  The complainant told a neighbour and the police were called.

When interviewed the applicant said that the complainant was lying.  He said she did not have a crush on him.  The complainant's mother initially denied any involvement but did say that the complainant had a crush on the applicant.  She also said that the complainant chased after older men as a child and, in effect, was promiscuous.  She claimed that the complainant would come and ask for sex and that she would say no.  H said that she was dead against it.  She described the applicant and the complainant kissing and hugging each other in the lounge for a considerable period.  The fact that H said these particular matters was relied upon by counsel for the applicant during the sentencing proceedings as suggesting some form of mitigation.

It appears that the complainant, her father and B are a close knit family.  She is studying at school and had an after school job.  She had performed quite badly at school and believed it was associated with the offences.  She was not receiving any current counselling.  A victim impact statement was tendered which indicated the events had caused harmful effects on her.  She had been cross-examined by counsel for the applicant for a number of days at the committal and challenged that she was lying.  The committal proceedings had been delayed when counsel for the applicant indicated on the day of commencement that an ex officio indictment would follow but this did not occur and after several months a committal occurred when the complainant was required to give full evidence.

Counsel for the applicant before the sentencing Judge submitted that the applicant took advantage of a young girl who had a preoccupation with sex and who had a crush on him.  Nevertheless, it was conceded by counsel for the applicant that he had wrongly taken advantage of her.

The grounds of the application state two matters.  These appear to be as follows: (i) The sentencing Judge imposed a sentence which did not reflect the pleas of guilty, (ii) The sentence imposed did not take into account the fact that the complainant's assertions were not corroborated.  The latter ground is irrelevant as the applicant pleaded guilty.

As indicated the trial Judge took into account the fact that the applicant pleaded guilty and explicitly said when imposing certain sentences of six years' imprisonment that he would have sentenced the applicant to seven years' imprisonment on the counts of indecent dealing with a girl under the age of 16 in his care.  He otherwise said that he took those pleas into account.

Before the Court today the applicant has asserted that he did not do or commit any of these offences and also that he was told by his counsel that by pleading guilty he would get a lesser sentence or even a suspended sentence.

Having examined carefully all the submissions on behalf of the applicant before the sentencing Judge there was no reference as far as I can discover to a submission that he should receive a suspended sentence.  All of the submissions made on the day of sentencing on behalf of the applicant indicated that he had admitted all of the particular offences involved which had been stated in detail by the Crown Prosecutor and not challenged.

His Honour regarded the fact that the complainant had to go through a great deal before the plea was indicated as significant.  He also mentioned that the conduct, although on three periods, had continued over a number of years.  The applicant was in the position of a father and committed a gross breach of trust rather than protecting the complainant.  He also gave recognition to the fact that the attempted rape was not persisted in, the fact that the girl was effectively in his protection at material times, and that the conduct was the most serious kind and continued over these three separate periods.

As indicated, counsel on behalf of the applicant, before the sentencing Judge, relied upon statements made by the complainant's mother that the complainant was precocious and had a crush on the applicant and on older men generally.  It was also submitted that the applicant had not subjected the complainant to any of these acts by force and that she had already been introduced to sex by other persons.  However, the sentencing Judge also said the applicant was in a position of a father and should have treated the child properly, it being of no relevance whether the child did, in fact, flaunt herself or whether she had a crush on the applicant or not.

It is clear that this case involved a more serious type of indecent dealing and oral sex over a long period.  The conduct was persisted in even though a complaint had been made to the police after the first series of incidents in 1989.  The evidence indicated that the girl was not, in fact, a willing partner, and that she had made complaints to the police and others after which the conduct persisted.

The whole of the circumstances indicate quite clearly that the sentence imposed could not be said to fall outside what was the exercise of a sound sentencing discretion.  No basis has been shown before this Court or in any of the submissions below that the sentence should in any way be interfered with.

In my opinion the application should be refused.

DAVIES JA:  I agree.

THOMAS J:  I agree.

DAVIES JA:  The application is refused.