R v B

[1995] QCA 473

IN THE COURT OF APPEAL	[1995] QCA 473
SUPREME COURT OF QUEENSLAND

C.A. No. 342 of 1995.

Brisbane

Before	Pincus J.A. Mackenzie J. Lee J.
[R v. B]

T H E Q U E E N

v.

B

(Applicant)

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Pincus JA
Lee J
Mackenzie J

______________________________________________________________

Judgment delivered 24/10/1995

Joint Reasons for judgment of Lee and Mackenzie JJ; separate concurring reasons of Pincus JA.

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APPLICATION GRANTED. SENTENCES OF 9 YEARS IMPRISONMENT
AFFIRMED, BUT WITH ADDITION OF RECOMMENDATION FOR PAROLE AFTER
SERVING 3½ YEARS IN CUSTODY.

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CATCHWORDS:	CRIMINAL LAW - SENTENCE - whether sentence manifestly excessive - relevance of lack of remorse, need for deterrence - community attitudes to such offences - no relevant previous convictions - advanced age of applicant - ill health.
Counsel:	Mr D. Kent for applicant Mrs L. Clare for respondent
Solicitors:	Legal Aid Officer for applicant

Director of Prosecutions for respondent

Hearing Date: 5 October 1995

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 24/10/1995

I have read the reasons of Lee J and agree with the orders his Honour proposes. Subject to what appears below I am in general agreement with his Honour’s reasons.

Draper (C.A. No. 106 of 1990, unreported, 18 July 1990) has a sufficient similarity to the present facts to require comment, as there the Court of Criminal Appeal reduced the sentences for incest to 5 years, a result which cannot in my view be reconciled with the sentence imposed in the present case, of 9 years. The explanation for the discrepancy between the sentence in that case and that which is being upheld here is not merely that there has been a tendency since Draper to increase sentences for serious sexual interference with children; it is my view that the sentence fixed on appeal in Draper was even for that time rather low, as may be illustrated by examination of the facts of Thomas (C.A. No. 327 of 1989, unreported, 16 March 1990), where the Court of Criminal Appeal imposed a sentence of 8 years.

In my opinion the important factor in this case, where the offender is almost 60 and has no significant criminal history, must be general deterrence; for the purposes of deterrence of the individual offender, only a moderate sentence is necessary, as one would hardly expect him to reoffend after completing his sentence. These considerations have induced me to be concerned whether the head sentence of 9 years is too long; certainly it is not a lenient sentence. With some hesitation, I have come to the conclusion that it cannot be described as manifestly excessive.

REASONS FOR JUDGMENT - LEE & MACKENZIE JJ

Judgment delivered 24/10/1995

This is an application for leave to appeal against sentence. The applicant was convicted on his own pleas of guilty on 21st July 1995 in the District Court at Brisbane of six counts of indecent dealing with a child under the age of 16 years with circumstances of aggravation (the child was under the age of 12 years and in his care), and six counts of unlawful carnal knowledge of a girl under the age of 16 years with circumstances of aggravation (the child was in his care and at times under the age of 12 years).

The sentences imposed were 9 years imprisonment in respect of the counts of unlawful carnal knowledge and 7 years imprisonment in respect of the counts of indecent dealing. The sentences were ordered to be served concurrently. No recommendation was made for parole. The applicant served 255 days in custody between 8th November 1994 and 21st July 1995 with respect to these offences.

The ground of the application is that the sentence was manifestly excessive. It was submitted that the head sentence in the range of between 5-8 years with an early recommendation for release on parole was the appropriate range and that in the circumstances, the sentence imposed should have been 8 years imprisonment with a recommendation for consideration for early release on parole after 2 years and 8 months.

The applicant at material times was living in a defacto relationship with the complainant’s mother. This relationship has since ceased. The offences occurred between 31st July 1992 and 5th November 1994 when the complainant was aged between 10 and 12 years. The applicant was born on 30th December 1936 and was about 57 years of age when the offences commenced.

The applicant began to touch the complainant sexually soon after he moved in with the family. He started having intercourse with her a few months later. It appears that on the first occasion when he had unlawful carnal knowledge of the complainant, force was used and the complainant was subjected to pain. Some of the counts of indecent treatment relate to acts of fellatio and cunnilingus. The complainant first complained to the Juvenile Aid Bureau in April 1993 but withdrew the complaint on the same day for fear of the consequences to the relationship between her mother and the applicant.

On 4th February 1994, at the age of 12 years and 3 months, when the complainant was in year 7 at school, she gave birth to the applicant’s child. Initially the complainant falsely accused a neighbour of rape but eventually withdrew this allegation. Sexual activity, including intercourse, continued after the birth of this child. Blood tests of the child, the neighbour and the applicant, taken in August 1994, confirmed that the applicant was the father of the child.

The applicant was then interviewed by police. He made admissions of sexual conduct but denied penetration prior to the birth of the child. He stated, “I have [penetrated] since she’s had the baby, but not before. I tried a couple of times but I couldn’t ... just too small I suppose”. However, as indicated, the baby was his child, a fact which he admitted after the blood tests referred to.

He also indicated that he had been incited to his actions by the complainant. He stated, “When it’s put in front of you on a platter you don’t push it away. I don’t think any man would”. He also stated that on one occasion when he had gone across the road to buy condoms he returned to find her on the bed with her “end up in the air, holding it apart with her hands”.

In sentencing the applicant to 7 years imprisonment in respect of the unlawful and indecent dealing charges and 9 years imprisonment for the unlawful carnal knowledge charges, the learned judge took into consideration the fact that the charges were very serious offences, with maximum penalties of life and 10 years, the large disparity in the ages between the complainant and the applicant - some 45 years, the persistence of the offences, even after the child had been born, the close familial relationship between the complainant and the applicant and the serious consequences to the complainant who suffers an intellectual impairment and mild mental retardation. She was frequently ill and distressed during pregnancy. She shares few life experiences with friends and frequently misses school. Her mother found it necessary to move schools for fear of the applicant’s involvement with the complainant who has now been deprived of appropriate peer relationships and a normal healthy development.

Consideration was also given by the learned judge to the pleas of guilty by the applicant, thus sparing the complainant the distress of a trial and cross-examination, to the good work history of the applicant, the fact that there was no relevant previous criminal history, and health problems of the applicant. Various authorities were cited during the sentencing process.

In support of the submission in this Court that the head sentence of 9 years was manifestly excessive, various authorities were cited which show a wide range in sentencing for offences of a similar but not identical kind, ranging from 5 years (R v Draper C.A. No. 106 of 1990) to 8 years (R v A C.A. No. 232 of 1992; R v Thomas C.A. No. 327 of 1989) and 9½ years (R v B C.A. No. 346 of 1992). It was submitted that if 9 years was the top of the range, some reasonable discount for cooperation, the plea of guilty, and absence of previous sexual offences would indicate that a 9 year head sentence with no earlier recommendation for parole was far too high.

Counsel for the respondent also submitted a schedule of cases dealing with sentences imposed for various offences of incest and maintaining a sexual relationship with children. These cases also show a wide range of culpability and a correspondingly wide range of sentences ranging from 15 years for the worst type of case to as low as 6 or 7 years imprisonment for the less serious. Counsel submitted that this case was not as bad as that of K (C.A. No. 203 of 1993) where imprisonment of 12 years with a 4 year non-parole period was imposed on a 33 year old man who engaged in intercourse and sodomy with two stepdaughters and oral sex with his natural son. He also corrupted the children to abuse each other. There was remorse and an early plea of guilty. However she submitted the current case was more serious than those dealt with by the Court in Thomas (C.A. No. 327 of 1989) and Caecal [1982] Qd.R. 405 where sentences of 8 years imprisonment were imposed in situations where the offences occurred over a relatively short space of time, unlike the offences in the current case.

The seriousness of the present offences is aggravated by the fact that the complainant child suffers a degree of mental retardation and has undergone profound psychological and physical trauma. She was forced to endure the continuing sexual attentions of the applicant even after she had borne his child. The applicant has not shown any genuine remorse for his actions. He even attempted to shift the blame by alleging that the complainant had incited him to commit them. The mere fact of a plea of guilty does not necessarily indicate remorse. It was submitted on behalf of the respondent that this particular matter attracted a sentence towards the top of the range.

Courts in recent years have generally taken a much harsher view of offences of this kind and are imposing higher penalties to reflect in part the growing awareness of the problems of sexual abuse in the community and the community expectation that sexual offenders should be severely dealt with. As indicated, the maximum penalty for some of these offences is life imprisonment and for the others, 10 years imprisonment. In view of all the circumstances of the case, the particular gravity of the offences, the persistence and length of time over which the offences were committed, it cannot be said that a head sentence of 9 years imprisonment is manifestly excessive. Accordingly, those sentences stand.

Whilst there was no indication of genuine remorse in this case, s.13(1) of the Penalties and Sentences Act 1992 requires the Court to take a guilty plea into account when imposing sentence on an offender who has pleaded guilty to an offence. In this regard, the applicant, through pleading guilty, did not require the complainant to undergo harrowing cross- examination, either at the committal or at trial and has saved the costs and inconvenience of what might have otherwise have been a long trial. He is a man of 58 years of age and not in perfect health. He had a minor criminal history many years previously but he has not been previously convicted of any sexual offences. He has an excellent work record. In all of these circumstances, it is appropriate that a recommendation for parole be made after the applicant has served 3½ years of his sentence.

Accordingly the application for leave to appeal against sentence is granted, the sentences of 9 years imprisonment affirmed, but with the addition of a recommendation for parole after serving 3½ years in custody.