R v C

[1995] QCA 482

IN THE COURT OF APPEAL	[1995] QCA 482
SUPREME COURT OF QUEENSLAND

C.A. No.309 of 1995

Brisbane

[R v C]

THE QUEEN

V

C (Applicant)

Davies JA
Dowsett J

Lee J

Judgment delivered 31 October 1995

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DISMISSED.

CATCHWORDS: CRIMINAL LAW - SENTENCE - INCEST - INDECENT DEALING with a girl under the age of 16 years, lineal descedent - whether early recommendation because of ill-health; good work history; no previous convictions - whether deny leniency because of other acts of intercourse, not charged - whether take account of delayed prosecution.

Counsel:	Ms K. McGinness for the applicant
Ms L. Clare for the respondent
Solicitors:	Legal Aid Office for the applicant
Director of Prosecutions for the respondent
Hearing date:	24 October, 1995

JUDGMENT OF THE COURT

Delivered the 31st day of October, 1995

The applicant seeks leave to appeal against sentences imposed in the District Court at Brisbane on 31st July 1995 following his pleas of guilty to one count of incest, one of attempted incest, and two counts of indecent dealing of a girl under the age of sixteen years with two circumstances of aggravation viz that the girl was under the age of twelve years and was his lineal descendant. The ground relied upon is that the sentences were manifestly excessive.

He was sentenced to five and a half years imprisonment on the incest, three years imprisonment for the attempted incest, eighteen months imprisonment on one count of indecent dealing and three months imprisonment on the other count of indecent dealing. The sentences were ordered to be served concurrently. No recommendation was made for consideration for early parole. The Crown submitted at the sentencing hearing that a head sentence of six years imprisonment with no recommendation was appropriate whereas the applicant's counsel contended for a five year head sentence with a recommendation. Counsel for the applicant did not seek to disturb the head sentence of five and a half years' imprisonment, but submitted that a recommendation should have been made in the circumstance of the case. The maximum penalty for incest is life imprisonment, for attempted incest ten years and for each of the indecent dealing counts ten years.

The incest occurred on a date unknown in 1978. The complainant was the applicant's daughter who was aged fourteen years at the time when he first had sexual intercourse with her. The applicant admitted having engaged in two or three other acts of sexual intercourse with her. As a result, his daughter bore a child in 1979 when she was fourteen or fifteen years of age. Apparently no further acts of sexual intercourse occurred between them after she became pregnant.

The complainant did not reveal these matters to anyone until police in 1994 began investigating other alleged sexual offences involving the applicant's granddaughter committed in 1990, some twelve years after the offence against his daughter. When approached by the police, his daughter was reluctant to make a statement out of loyalty to her parents. The matter was apparently reported to the police by the complainant's sister and not by her. She had been shamed by her family as a result of the birth, as well as by the applicant himself. He repeatedly threatened to send her to a girls home if she exposed him. When sixteen years old, she complained to her mother who did not believe her and accordingly she took the view that if her mother did not believe her, no one would.

The complainant kept the baby and subsequently married. She is now thirty-one and has children. She worried that disclosure of the incest would be met by disbelief and alienation from her family. She lived with the fear that her daughter would learn the true identity of her father which, according to the sentencing Judge, has been kept from her. She has received counselling and has difficulty in showing affection to her own children. She stated that the pain from the abuse has never stopped and she doubts that it ever will.

To the applicant's credit, when questioned about the offence sixteen years after the event, he freely and frankly admitted to it and also that he was the father of his daughter's child. This admission has facilitated the task of the Crown in prosecuting this offence on the basis of his admissions only. It was submitted that his daughter was reluctant to give a statement to the police, indicating, so it was said, that without his admissions, this charge could not have been sustained. This submission is of limited significance, having regard to other possible means by which the prosecution might have been able to prove the existence of the incest. This apart, the real benefit was that his daughter was saved from the additional trauma of giving evidence in court against her father and publicly reliving her horrible experience.

The two indecent dealing offences involved his granddaughter on various dates unknown in 1990. The attempted incest also involved that granddaughter on a date unknown between September 1990 and April 1992.

The first count of indecent dealing followed when the applicant called his granddaughter, who was aged ten or eleven at the time into his bedroom on the pretence of looking at photographs. He touched her chest area and grabbed for her vagina inside her shorts. He digitally penetrated her for about five minutes despite her direction to stop. This caused her pain. He stopped when his wife drove into the yard. He said to his granddaughter, "You are not going to tell anyone are you?".

The next count of indecent dealing occurred when his granddaughter and his child born in 1979 to his daughter, then aged about eleven, were in bed with him. He was tickling them. He put his hands inside his granddaughter's pants and felt the cheeks of her bottom. This behaviour ended when his wife called them out for dessert.

The attempted incest occurred when he pulled down his granddaughter's pants. His own shorts were down. He lay on top of her and pushed his erect penis against her genitals. It was painful. He simulated intercourse for about five minutes and ejaculated on her body. She believed that he had penetrated her. He said in a forceful voice "You won't tell anyone".

The granddaughter never stayed at the applicant's house again. She first complained to a friend in 1994, nearly four years after the misconduct commenced, and the following month told her mother. She provided a statement to police in 1994 and still believed that her grandfather had sexual intercourse with her.

When interviewed in 1994, the applicant, as indicated, freely admitted the incest with his daughter sixteen years earlier but denied sexual contact with his granddaughter. The offences involving the granddaughter were listed for trial on two counts of indecent dealing and one of incest. On the morning of the trial the complainant granddaughter and other witnesses attended to give evidence, but the Crown amended the incest count to attempted incest as a result of which the applicant pleaded guilty to all three counts. The applicant's granddaughter has received counselling regarding her school work and said in a victim impact statement that her grandfather has destroyed her whole family and that she cannot ever forgive him for what he had done.

The trial Judge said that the passage of time did not alter the gravity of the offence but that delayed prosecution was a factor to be taken into account, apparently in the applicant's favour. Of importance in his view was the fact that the applicant had interfered with two generations of his lineal descendants. He exercised dominance over young girls in his care, with threats against disclosure. He had other acts of sexual intercourse with his daughter which did not involve an increased penalty, but his Honour said that those acts were relevant in considering whether leniency should be extended. His Honour fully took into account the applicant's admissions regarding his daughter and his subsequent pleas of guilty to the offences involving his granddaughter as well as the personal circumstances of the applicant including his health. His Honour concluded that not much assistance could be derived from the various authorities referred to as the circumstances of offences of this type vary widely.

The applicant was born on 16 September 1937. He has had a limited education, having attended school for only four and a half years. He was forty-one years of age when he committed the offence against his daughter and about fifty-three years of age when he committed the offences against his granddaughter. He is now fifty-eight years of age. He has had a good work history up until 1989 when he became ill and retired. He has no previous convictions of any kind. He is married and has had seven children. His wife is supportive of him despite what has occurred. He suffers various medical complaints including diabetes and hardening of the arteries which require regular medical attention. He has had some operations in relation to hardening of the arteries and is due for exploratory surgery on 15 December 1995 in connection with his right arm.

In support of a recommendation, it was submitted on behalf of the applicant that there was no physical force used nor any threats of physical force. It was said that his ill health, co- operation, and particularly his age, warranted an early recommendation because in his condition he would find it harder to serve a term of imprisonment than a younger or healthier man. It was said that there was no likelihood of reoffending. It was also submitted that the sentencing Judge recognised that early release might occur on the ground of ill health because of his Honour's report to this Court where he indicated that a Judge could not as a general rule decide health issues on a short medical report and that the Corrective Services Commission could monitor the applicant's health and allow earlier release on those grounds should that be considered necessary in the future.

It was further submitted that the sentencing Judge erred in relying on other acts of sexual intercourse, not the subject of any charge, as an indication not to extend leniency to the applicant. Counsel for the applicant relied on the recent decision of the Court of Appeal in R v. D C.A. No. 32 of 1995 (delivered 4 August 1995) where the Court, after an extensive review of authorities in Queensland, throughout Australia and elsewhere, said at p.51 of the reasons:

"3.An act, omission, matter or circumstance which may not be taken into account may not be considered for any purpose, either to increase the penalty or deny leniency; and this restriction is not to be circumvented by reference to considerations which are immaterial unless used to increase penalty or deny leniency. e.g., 'context' or the 'relationship' between the victim and offender, or to establish, for example, the offender's 'past conduct', 'character', 'reputation', or that the offence was not an 'isolated incident'. etc.

To withhold leniency by reference to offences of which a person being sentenced has not been convicted is, in our opinion, to punish that person for those offences as surely as if additional punishment were imposed by reference to those offences."

On the other hand, as indicated above, the learned sentencing Judge appears to have taken into account, apparently in the applicant's favour, the delayed prosecution. Whether such a delay should be regarded as a mitigating factor in sentencing has been discussed in the recent decision of The Queen v. L (C.A. No. 176 of 1995, delivered 6 October 1995). The Court there said that it is difficult to see why a lapse of time between commission of an offence and sentence should be a mitigating factor in sentence unless that delay has resulted in some unfairness to the offender. Such unfairness might arise where there is delay between the date of apprehension of the offender or first indication to him by some person in authority that he is likely to be prosecuted, and the date of sentence. Unfairness might also exist where the time between the commission of the offence and sentence is sufficient to enable the Court to see that the offender has become rehabilitated or that the rehabilitation process has made good progress. In that case the Court could see nothing that justified, on the ground of fairness to the respondent, mitigation of sentence by reason of the fact that the complainant did not make a complaint to the police for fifteen years after the last of the offences was committed. This is the situation in the current matter.

So even if it can be said that the sentencing Judge erred by virtue of the later pronouncement in The Queen v. D, in using other acts of sexual intercourse to deny leniency to the applicant, it may equally be said that the sentencing Judge erred in the applicant's favour in wrongly taking into account the lapse of time between the commission of these offences and the time when he was sentenced.

There was no evidence that the applicant's medical treatment would be jeopardised whilst he is in custody or that imprisonment would be unduly harsh in his case. Whilst it may be appropriate in some cases for leniency to be extended to an elderly person, particularly those with physical or other disabilities, no special reason has been demonstrated why this factor either on its own or in combination with other circumstances, should necessarily result in a recommendation.

When considering whether or not a recommendation should be given for early parole, all of the circumstances must be taken into account, including the nature and seriousness of the offence or offences, and the period which it is likely that the applicant would serve in custody in the absence of any such recommendation. The offences in this case were extremely serious. The Judge made due allowance for all the prevailing circumstances in the head sentence he imposed which was conceded to be appropriate. In the absence of a recommendation, the applicant would, apart from remissions, serve two and three quarter years in custody. It cannot be said that this is unduly harsh having regard to the offences committed and all other prevailing circumstances.

Accepting that, for the reasons alrerady mentioned, the sentencing judge erred in the course of sentencing the applicant, the overall sentence was, in our view, an appropriate one. The application should be dismissed.