R v Buckby

[1996] QCA 26

IN THE COURT OF APPEAL	[1996] QCA 026
SUPREME COURT OF QUEENSLAND

C.A. No. 449 of 1995

Brisbane

[R v. Buckby]

THE QUEEN

v.

DESMOND GEORGE BUCKBY

Appellant

Macrossan CJ McPherson JA Mackenzie J

Judgment delivered 27/02/1996
Judgment of the Court

Appeal against conviction dismissed. Application for leave to appeal against sentence granted and appeal allowed to the extent only of setting aside the sentence of ten years imposed on the sodomy count and substituting one of seven years, in all other respects confirming the orders made below.

CATCHWORDS:CRIMINAL LAW - sexual offences - whether sufficient evidence of

penetration.

CRIMINAL LAW - sentence - whether manifestly excessive - indictment did not

adequately disclose circumstances of aggravation

Counsel:	Mr S. Hamlyn-Harris for the appellant. Mrs L. Clare for the respondent.
Solicitors:	Legal Aid Office (Queensland) for the appellant Director of Public Prosecutions for the respondent.

Hearing Date: 7 February 1996

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 27/02/1996

The appellant was convicted after trial on a charge of sodomy of a person not an adult. The form of the charge as it appeared in the indictment will need to be considered more exactly later in these reasons because a challenge is made to the way in which the allegation is there stated. The age of the complainant, a girl who was aged eleven or twelve at the time the offence was committed, does not appear in the charge as a circumstance of aggravation.

Following his conviction the appellant pleaded guilty to a number of additional offences and separate terms of imprisonment, all concurrent, were imposed. The offence of sodomy attracted the longest term, one of ten years. The appellant, in addition to his appeal against conviction, seeks leave to appeal against sentence. In the arguments presented in respect of sentence, the ten year term inevitably attracted the greatest degree of attention although it was accepted that, in fixing it, the overall criminality was legitimately taken into consideration by the sentencing judge. The additional offences to which the appellant pleaded involved young persons other than the one who was the complainant in the sodomy charge. Those offences were: wilfully exposing a child under sixteen in his care to an indecent videotape; wilfully exposing a child under twelve in his care to an indecent videotape; four counts of indecent dealing with a child under twelve in his care and one count of indecently dealing with a child under twelve. The sentences imposed varied between six months and two and a half year terms, all concurrent with one another and with the ten year term.

On the conviction appeal it was contended that the verdict on the sodomy count was

unsafe and unsatisfactory. The complainant was thirteen years of age at the time she gave her

evidence. She was not corroborated and she had made no recent complaint. The

offence was charged as having occurred between the end of September and the beginning of December 1993 but no complaint was made to the police until January 1995. The complainant had refused to be medically examined but certain medical evidence was called as part of the Crown case. That evidence was necessarily of a somewhat general character. One medical witness spoke of the likely physical effects of sodomy upon a young girl of twelve years or so, and another spoke of the effects that could be attributable to the ingestion of Normison, a sleeping table used by the medical profession and available on prescription. At the trial, the appellant's counsel formally admitted that in September or October 1993 the appellant had received from a medical practitioner a prescription for Normison but there was no evidence that he had actually taken delivery of the drug on that prescription. The Crown case, rather indirectly, attempted to suggest that before the act of sodomy occurred the appellant had administered a drug to the complainant mixed in a drink which he offered her when she awoke during the night. The complainant said that the drink which she was offered and took tasted a bit like Fanta but not very much like it, and it had a bitter taste. She said that after taking it she felt dizzy and had a headache. This evidence, it should be said, was admitted at the trial without objection.

The circumstances in which the offence was committed were these. On a particular Friday night the complainant, in the company of her mother and another person, met the appellant and a boy, Paul Hastie, who was two years older than herself. It was arranged that the complainant might sleep at the appellant's caravan on the following night. On the Saturday morning the complainant and Paul Hastie were picked up and taken to the appellant's caravan. An excursion was made in the course of the day and the appellant made gifts of various items to the complainant. On the Saturday night the complainant slept in a double bed in the caravan. At one point during the night she woke up and she was given the drink which has been referred to. She went back to sleep. Later she became aware of some further matters. In summary, her evidence was that she felt something in her bottom. She was then lying on her stomach in the double bed. What she felt was hard and her bottom felt sore. She said she looked over her shoulder and saw the appellant's face. He was on top of her and his hands were beside her upon the bed. She said that the appellant then pushed her head down in gentle fashion and she went back to sleep. Next morning when she woke up she said she felt sore in her bottom and found her knickers were halfway down just above her knees. She said that the sheets near her legs were sticky and wet. When she walked around and also when she went to the toilet she felt soreness in her bottom.

The medical evidence was to the effect that bleeding would not be expected in the case of sodomy of a twelve year old girl and in most cases no anal fissure would be caused. There would, however, probably be noticeable pain during a following bowel movement and pain could be experienced in the course of other activities.

In challenging the verdict, counsel for the appellant suggested that the evidence that penetration had occurred was insufficient as was evidence of penetration by the appellant's penis. The girl had not spoken of any thrusting or movement by the appellant when she woke to find him on top of her. It was also the case that she had promptly gone to sleep again after making her observation of him positioned above her. Paul Hastie had been present in the caravan but he was not called as a witness. In reference to the girl's complaint of dizziness and headache, it should be recorded that she had recently suffered an attack of influenza and also on the evening of the alleged offence she had felt sick because of the amount of "junk food" she had eaten that day.

A difficulty with the appellant's submission is that although the evidence of sodomitical penetration was not extensive, it was unopposed by other evidence in the trial. The appellant himself gave no evidence and no evidence was called for the defence. Cross-examination of the complainant was rather restricted in its scope and consisted in the main of examining aspects of her account rather than forcefully pursuing her with an alternative version of the events of the evening. No doubt the approach of defence counsel in cross-examination was deliberately adopted for tactical reasons but its restricted nature allows the complainant's rather bare account to be regarded as sufficient when she spoke of something hard "in" her bottom with her description of the appellant's position upon her and the position of his hands. This is so looking at the other circumstances and her description of her symptoms. When this Court examines for itself the evidence given by the complainant, it is seen to amount to a version which the jury would have been entitled to regard as convincing, unopposed as it was by any other positive account. The appeal against conviction should be dismissed.

The application for leave to appeal against sentence should now be considered. When sentenced the applicant was a forty-eight year old. The manner in which he took

advantage of a young female entrusted to his care was most reprehensible. He had some criminal history including three convictions for dishonesty. Most significantly he had been convicted in December of 1990 of indecent dealing with a child under the age of twelve and he was sentenced to twelve months imprisonment. The applicant had displayed no remorse in respect of the sodomy offence presently charged and he had caused the young complainant to face cross-examination. Accordingly, no particular discount on what otherwise might be thought an appropriate sentence could be expected. However, the applicant did plead guilty in respect of the other matters taken into account and the sentencing judge noted it and the saving of court time that resulted. It appeared also that the applicant has had a difficult time while in custody and has been assaulted on two occasions.

Counsel for the applicant submitted that the matter of sentence should be approached by determining the appropriate penalty overall for the series of offences before the court, bearing in mind that the sodomy was by far the most serious. He accepted that the penalty otherwise appropriate for sodomy in the circumstances should be increased to a moderate extent to reflect some penalty for the other offences involved. The sentencing judge below had adopted this approach when imposing the various concurrent sentences. Counsel for the applicant, however, contended that a sentence of ten years imprisonment was excessive and that it should be reduced to no more than seven years. This general submission was made referring to sentences imposed in certain other cases and the submission was supported by two particular contentions.

Prior to the taking of the verdict below, no point had been made upon the form of the indictment but before the sentences were imposed, defence counsel drew attention to it and suggested that the maximum term to which the applicant was liable in the circumstances on the sodomy count was seven years. The same point was made on behalf of the applicant in this Court.

The relevant statement of offence with a heading "unlawful anal intercourse" appears in section 208 of the Code. The offence consisting of unlawful carnal knowledge by anal intercourse of a person "not an adult" attracts in the ordinary case a term of imprisonment of seven years. However, the existence of circumstances of aggravation can increase this penalty. If the offence is committed upon a child under the age of sixteen years, the maximum term is increased to fourteen years, except when it is further increased to life because it involves a child under the age of twelve years, or one who is a lineal descendant of the offender, or because the offender is the child's guardian or the child is, for the time being, in the offender's care.

The indictment in the present case charged anal intercourse of a person not an adult and stated that the named child was in the care for the time being of the applicant. However, it did not state any age for the child. In the proceedings below the Crown proved the age of the child and there could have been no doubt in anyone's mind that the Crown's contention was that at the time of the offence the complainant was under the age of sixteen. When, upon sentence, attention was drawn to the absence of any statement in the count concerning the age of the child apart from the reference to the complainant's being "not an adult", counsel for the Crown submitted that the Crown's allegation was clear, not only from the evidence presented in the course of the trial, but also because the indictment gave a sufficient indication by its statement that the complainant was in the care of the offender. That statement had no relevance under the scheme for specification of penalties in s.208 except in the case of a child "under the age of sixteen years". Counsel for the Crown contended that the relevant circumstance of aggravation had been sufficiently stated so that the maximum term to which the applicant was liable was life. The sentencing judge accepted this argument and it is clear that she proceeded to sentence the appellant for the sodomy offence on the basis that he was liable to a maximum term of life.

It should be mentioned that counsel for the applicant below was careful to explain to the Judge that he had not in fact adverted to what he contended was a relevant feature of the indictment until after the verdict had been taken when, because of his obligation to his client, he felt obliged to raise the matter. If this contention of counsel for the applicant, relied on again in this Court, has substance, it follows that the Judge has sentenced on an incorrect basis and the discretion has miscarried.

Section 1 of the Code defines "circumstance of aggravation". It includes any circumstance by reason of which the offender is made liable to a greater punishment than would otherwise be the case. Section 564 provides in part that "if any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment". Section 707 provides for a power to make rules prescribing forms of indictment and the Criminal Practice Rules of 1900 have resulted from this authorisation. No form has, however, been prescribed for an offence under the current section 208 referring to anal intercourse of a person not an adult. The present case is not one, then, where it can be contended that a sufficient charge of the offence specifying all relevant circumstances of aggravation has resulted from following a prescribed form of indictment. If that were the case the sufficiency of the indictment for relevant purposes could have been supported by the further words appearing in section 707 (1). The result of these provisions is that if, in a case like the present, it is to be contended that the maximum penalty is life, the circumstance of aggravation which makes it so must appear in the words of the indictment itself. The mandatory nature of the provisions introducing the scheme of punishments where offences are accompanied by circumstances of aggravation cannot be overlooked. This is a matter of a kind which has been dealt with in other cases of which the most recent one of relevance for this Court is R v. McGoldrick (1995) 1 Qd.R 553. In terms of the principle to be applied, the basic circumstances there closely resemble those present in this case. The Crown is not relieved from the necessity to conform with the requirements concerning the contents of indictments including the need to state circumstances of aggravation if an entitlement to rely upon the statutorily increased penalty is to apply. There is no need to repeat again the arguments and considerations canvassed in McGoldrick (supra). That case states the reasons for its conclusions quite fully and its principles are obviously applicable to the present case. The sentencing below in the absence of a statement in the indictment that the complainant was under the age of sixteen years proceeded on an incorrect basis and this Court becomes obliged to sentence afresh.

We were referred to certain other decisions of this Court, in particular Main CA No. 148 of 1993, Smith CA No. 14 of 1994 and Kingwill CA No. 75 of 1993 and take those cases into account. In the circumstances of those cases, sentences of five, eight and ten years imprisonment respectively were either imposed on appeal or permitted to stand. Amongst the significant matters to be kept in mind in this case are that there was no plea to the principal offence, a number of additional serious offences had to be borne in mind in fixing an appropriate overall sentence allowing for the total criminality involved, and there was the prior conviction for indecent dealing with a child under twelve.

It should, however, be recorded that, in our opinion, on the evidence as it stood, there was an insufficient basis for the sentencing judge to conclude as she did that the applicant had in this case administrated a sleeping tablet to the complainant. The complainant's assertions about the strangeness of the taste of the drink and the feelings of headache and dizziness following its taking, do not sufficiently support this conclusion. This was especially so when the child was suffering from 'flu symptoms and had admittedly eaten unwisely in the course of the preceding day. However, it remains a circumstance of seriousness that two of the offences which the applicant was sentenced for were committed whilst he was on bail.

Approaching the task of sentencing afresh, as we must now do, it is appropriate in all of the circumstances to accede to the submission of counsel for the applicant that in lieu of a sentence of ten years, one of seven years should be imposed on the sodomy count. We are conscious that a sentence of that length will represent the statutory maximum applicable to that charge in this case.

The appeal against conviction should be dismissed, the application for leave to appeal against sentence should be granted and the appeal allowed to the extent only of setting aside the sentence of ten years imposed on the sodomy count and substituting one of seven years, in all other respects confirming the orders made below.