R v C

[1998] QCA 156

IN THE COURT OF APPEAL	[1998] QCA 156
SUPREME COURT OF QUEENSLAND

C.A. No. 84 of 1998

Brisbane [R. v. C]

THE QUEEN

v.

C

(Applicant) Appellant

Pincus JA
McPherson JA

Ambrose J

Judgment delivered 19 June 1998
Separate reasons for judgment of each member of the Court, Pincus J.A. dissenting in part.

1.         APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.

2.         APPEAL ALLOWED.

3.         SET ASIDE EACH OF THE SENTENCES OF SEVEN YEARS IMPOSED AND, IN LIEU, IMPOSE SENTENCES OF FIVE AND A HALF YEARS IMPRISONMENT.

4.         RECOMMEND THAT THE APPELLANT BE ELIGIBLE FOR PAROLE AFTER SERVING TWO YEARS OF THESE SENTENCES.

5.         RECOMMEND THAT THE APPELLANT BE CONSIDERED FOR THE SEXUAL OFFENDERS' TREATMENT PROGRAMME AT MORETON CORRECTION CENTRE; THAT IN CONSIDERING ANY APPLICATION FOR PAROLE THE QUEENSLAND CORRECTIONAL SERVICE COMMISSION HAVE REGARD TO THE APPELLANT'S PARTICIPATION IN THAT PROGRAMME; AND THAT ANY RELEASE ON PAROLE BE SUBJECT TO THE REQUIREMENT THAT THE APPELLANT UNDERTAKE OR CONTINUE TO UNDERTAKE SUCH PSYCHOLOGICAL OR PSYCHIATRIC TREATMENT AND COUNSELLING AS MIGHT BE THOUGHT DESIRABLE TO PREVENT COMMISSION OF FURTHER OFFENCES OF THE SORT FOR WHICH HE HAS BEEN SENTENCED.

6.         CERTIFY THAT THE APPELLANT HAS BEEN IN CUSTODY WITH RESPECT ONLY TO THE OFFENCES AGAINST WHICH HE HAS APPEALED SINCE 27 FEBRUARY 1998, A PERIOD OF 113 DAYS.

7.         ORDER THAT THE TIME SPECIFIED IN PARAGRAPH 6 BE IMPRISONMENT ALREADY SERVED UNDER THESE SENTENCES.

CATCHWORDS:	CRIMINAL LAW - sentence - applicant pleaded guilty to 14 counts of indecent assault, 1 count of occasioning bodily harm, 9 counts of indecent acts, 16 counts of indecent dealing with a girl under the age of 14 years, 1 count of attempted incest and 1 count of common assault - whether sentence of 7 years manifestly excessive - sentencing practice on a plea of guilty - mitigating factors - demonstrated remorse - applicant cooperated with police and made admissions.
Bennetto ( C.A. No. 367 of 1997, 2 December 1997) Trost ( C.A. No. 386 of 1995, 13 November 1995).
Counsel:	Mr P. J. Callaghan for the applicant / appellant Mr P. Rutledge for the respondent
Solicitors:	Legal Aid Queensland for the applicant / appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	3 June 1998

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 19 June 1998

I have read the reasons of Ambrose J. and agree with them. The orders I would propose to make, however, differ somewhat from those which appear in his Honour’s reasons. I would make the following orders:

1.         Application for leave to appeal against sentence granted and appeal allowed.

2.         Sentences imposed below varied by reducing all sentences of 7 years imprisonment to 5½ years imprisonment with a recommendation that the applicant be eligible for release on parole on 27 February 2000.

3.         Sentences imposed below and recommendations made by the sentencing judge otherwise confirmed.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 19 June 1998

I have read and agree with the reasons of Ambrose J. and with the orders he

proposes.

REASONS FOR JUDGMENT - B.W. AMBROSE J

Judgment delivered 19 June 1998

On 27 February 1998 the applicant pleaded guilty to -

14 counts of indecent assault committed on his daughters;
one count of assault occasioning bodily harm (committed on one of his daughters);
9 counts of indecent acts, 7 of which related to his daughters and the others to a girl friend of his
daughters.
16 counts of indecent dealing with a girl under the age of 14 years (all of them involving his two
daughters);
1 count of attempted incest (committed on his elder daughter); and
1 count of common assault (committed on a girl friend of one of his daughters).

40 of the offences were committed between mid 1983 and the end of 1986. The last two were committed between the end of 1989 and the end of 1990.

At the time of his conviction the applicant was 48 years of age. The offences to which he pleaded guilty were committed when he was between 33 and 40 years of age. Most of the offences involving his two daughters were committed when they were aged 10 to 12 years; the last one was committed when the daughter was aged 14 years. A couple of the offences committed involved one of his daughters' girlfriends (also a child), while she was in the home environment of his daughters. Altogether then 40 offences, 38 of which were of a sexual kind, were committed on or in relation to young girls of tender years between 1983 and 1986. The last two offences were committed in 1989 and 1990.

It is unnecessary to go into the details of the various offences. It suffices to say that they involved him exposing his penis and forcing his daughter to touch it and masturbate him. They involved his digital penetration of a daughter's vagina on two occasions and his performing oral sex on the daughters and forcing the daughters to perform oral sex on him. There was also one attempt by him to commit incest with one of his daughters. On 4 or 5 occasions the applicant procured a daughter to masturbate herself in his presence while he masturbated himself in hers and engaged in other sexual activity with her. It is unnecessary to further particularise this conduct. Suffice it to say it amounted to persistent and deliberate efforts to corrupt his daughters by encouraging them to engage in sexual activity with him when they clearly did not wish to do so.

The offences had a very serious and destabilising effect on the applicant's daughters. Years went by during which time they obtained counselling and treatment for the significant emotional trauma which the offences inflicted upon them; eventually they made complaint to the police.

The applicant did not deny the allegations of sexual ill treatment made by his daughters or indeed by their young friend. Both daughters are now adult and have entered into domestic relationships and have children of their own. They are still badly scarred emotionally however from the persistent sexual abuse that they received at the hands of the applicant and they are still obtaining treatment for it.

There was no dispute really as to the nature of the offences. Neither was there any dispute that apart from this sexual abuse of his daughters and that on a couple of occasions he made approaches of a less serious kind to a child who was a friend of his daughters, that he had committed any criminal offences. He was apparently a good worker who had held a responsible position and had satisfied the material needs of his family.

He has demonstrated significant remorse and in a psychological report tendered, to which the learned sentencing judge referred, it is observed that he has profound shame and remorse for his abuse of his two daughters; he made no attempt to deny guilt in respect of any of the matters charged. It was observed that he had a history of continuing paedophilic activities over a period of several years. It was observed that he had personality characteristics which would make it appropriate for him to be referred to the sexual offenders' treatment programme currently run at Moreton Correctional Centre. He pleaded guilty at committal proceedings which I assume did not involved the complainants being required to give evidence.

The applicant's mother was an Aboriginal or at least part-Aboriginal woman and his father was of Caucasian origin. The evidence indicated that his father had treated the applicant brutally as he grew up and that this had had a significant psychological effect on him. At the time the offences were committed, both the applicant's wife and children regarded themselves as part of the Aboriginal community and had what might be described as “extended family” relationships with Aboriginal and part Aboriginal people living on Stradbroke Island. One might infer that the conduct of the applicant which led to the sentences against which he seeks to appeal is a matter known to those people in that extended family group. With respect to each of the offences to which the applicant pleaded guilty, the following were the maximum penalties which could be imposed at the material time:

Indecent assault - seven years
Assault occasioning bodily harm - three years
Indecent acts - two years
Indecent dealing with a girl under 14 years - seven years
Attempted incest - seven years
Common assault - one year

In the course of his sentencing remarks the learned judge observed that in his view “It is amongst the most serious cases of sexual misconduct”, and that the sentence imposed needed to have a deterrent effect, not merely upon the applicant but generally. He observed that it was not a case of an isolated act but of continuing and persistent conduct over a number of years on young vulnerable girls who were in the care and under the protection of the applicant and that the offences involved a gross abuse of trust. He observed that the maximum sentence that he could impose upon the applicant for any of the offences to which he pleaded guilty was imprisonment for seven years. He observed however that he could increase the length of imprisonment by making some of the sentences cumulative. His Honour observed that in his view the conduct of the applicant was worse than that involved in the case of Bennetto, (unreported C.A. No 367 of 1997, 2 December 1997) in which this Court reduced the sentence of eight years imposed in that case to imprisonment for six years with a recommendation for parole after two and a half years.

The learned sentencing judge observed that the sentence he proposed to impose was designed to reflect the totality of the applicant's conduct towards the children. In my view such an approach was clearly correct.

For each offence of indecent assault a sentence of seven years imprisonment was imposed. For each offence of indecent dealing a penalty of seven years imprisonment was imposed. For the attempted incest he was sentenced to seven years imprisonment. For each offence of committing an indecent act, he was sentenced to 18 months imprisonment. For the assault occasioning bodily harm he was sentenced to six months imprisonment. For the offence of common assault he was sentenced to three months imprisonment. It was ordered that all sentences be served concurrently. Therefore the head sentence was one of seven years. It was recommended that the applicant be eligible for parole after having served three years of that sentence.

The learned sentencing judge recommended to the Queensland Corrective Services Commission that he undertake psychological, psychiatric and other treatment and counselling and that he be considered for the sexual offenders's treatment programme at the Moreton Correctional Centre. Further recommendation was made that any release on parole should be subject to the requirement that he undertake or continue to undertake such psychological, psychiatric and other treatment and counselling thought desirable to prevent a repetition of offences of the kind for which he was sentenced.

The applicant contends that the head sentence was manifestly excessive.
In Bennetto the applicant had pleaded guilty to 58 sexual offences involving eight

children, six of whom were under 12 years of age and two of whom were aged between 12 and 16 years. Most of the counts involved indecent dealings and others involved exposing his penis to children and showing them pornographic computer images. One offence was committed in 1989; others were committed during 1995-1996.

It is unnecessary to analyse in detail the conduct of the applicant canvassed in that case. It suffices to say that 42 occasions of misconduct included putting a child's hand on his penis and procuring the child to masturbate him, having showers with a child, rubbing the outside of a girl's vagina and showing pornographic computer images, and touching a male child on the penis. Many of the offences would not have come to light but for the cooperation of the applicant and the indictment had been so drawn that a single episode of sexual misconduct might result in several counts.

The earliest count seemed to relate to sexual misconduct with a child aged 4 or 5 years in 1989. He was living in the house of the child's family and was regarded as a grandfather. Further offences were committed on the same child in 1995 and 1996.

Some complainants were aged between 9 and 14 years, others were aged 10 or 11 years, one was aged 10. He told police that he had massaged the clitoris of a 10 year old girl while showing her indecent computer images. The conduct of the applicant in that case clearly involved a breach of a trust that had been placed in him because he had “inveigled himself into a position where the offences could be committed” and his conduct was prone to corrupt the children. There was however no digital penetration of any of the children. It was observed that unpleasant though the conduct was it was plainly not in the worse category of that type of offence. The maximum penalty that could be imposed for any of the offences was 10 years imprisonment (under s.210(3) of the Code). The maximum penalty for indecent dealing had been increased from seven years to 10 years imprisonment in 1989 and had more recently been increased to 14 years imprisonment in 1997. The 1997 Act however did not apply to the applicant's offences. It was observed upon appeal that the penalty of eight years imprisonment “approached the maximum that could be imposed” for those offences.

It was pointed out that a timely plea of guilty to offences of this kind may generate an

expectation of a

“moderate approach from the court in recognition of the saving of public money and resources that results from such pleas and in recognition of other factors when appropriate such as sparing of further distress to complainants and the extent to which such a course may be seen to reflect remorse or to be an early step towards possible rehabilitation”.

It was observed by this Court that the fact that many offences were committed and that multiple complainants were involved in that case showed what might sometimes be called “a greater totality of criminality” and on one view might increase the operative sentence to be imposed. It was pointed out however that that consideration did not remove the need for proportionality to the relative seriousness of the particular counts to which the sentences are attached.

In interfering with the sentence in Bennetto's case, this Court referred to Trost, (unreported, C.A. No. 386 of 1995, 13 November 1995). That case involved a man maintaining an unlawful sexual relationship with a child under 16 over a four year period and his indecent dealings with his four infant granddaughters, all of whom were under the age of 12. The maximum sentence then available on the first charge was seven years and on the others 10 years. This Court in Bennetto observed that -

“in some ways Trost's conduct was more serious and others less serious
than the conduct of the present applicant.

Trost appealed against sentences totalling five and a half years with a recommendation for consideration of parole after three years. Counsel in that case accepted that a sentence of five and a half years properly reflected applicant's overall criminality and the court without adverting further to this proceeded to consider the question of an appropriate parole recommendation, deciding that this should be reduced to two years. Trost's conduct was more invasive than that of Bennetto's in that it included digital penetration of the vagina and he was less forthcoming with his dealing with the police and remorse was not demonstrated by the fact that one of the complainants was cross- examined at committal proceedings. Nevertheless, this court took the view that the criminality of Bennetto was more serious than that of Trost.

In Bennetto, this Court concluded that a sentence of eight years imprisonment was manifestly excessive and ought be replaced by a sentence of six years with a recommendation for consideration for parole after two and a half years.

In my judgment the sentence of seven years imprisonment imposed upon the applicant in this case is out of kilter with the decisions of this Court in Bennetto and Trost. Having regard to the remorse demonstrated by the applicant and making all allowance for the impact upon the complainants of his abuse, in this case I would grant leave to appeal against sentence. I would set aside the sentence of seven years. In lieu, I would impose a sentence of five and a half years imprisonment.

I would recommend that the applicant be considered for the Sexual Offender's Treatment Programme at Moreton Correction Centre.

I would recommend that the applicant be eligible for parole after serving two years of that sentence and I would also recommend that in considering any application for parole the Queensland Corrective Service Commission have regard to the applicant's participation in the Sexual Offenders Treatment Programme at Moreton Correction Centre and that any release on parole should be subject to the requirement that the applicant undertake or continue to undertake such psychological, psychiatric and other treatment and counselling as might be thought desirable to prevent commission of further offences of the sort for which he has been sentenced.

To avoid any confusion with respect to the date upon which the applicant will become eligible for parole he has been in custody with respect only to the offences against which he has appealed since 27 February 1998.

He will become eligible for parole therefore on 27 February 2000 because he was not held in custody in respect of these offences prior to 27 February 1998.