R v D

[1996] QCA 363

IN THE COURT OF APPEAL  [1996] QCA 363

SUPREME COURT OF QUEENSLAND

C.A. No. 307 of 1996

Brisbane

[R. v. D]

THE QUEEN

v.

D
  Applicant

de Jersey J

Lee J

Fryberg J

Judgment delivered 24/09/1996

Joint judgment of de Jersey and Lee JJ; separate reasons of Fryberg J.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:   SENTENCE APPEAL - maintaining a sexual relationship and associated offences - whether violence properly taken into account - whether 9 years with parole after 4 years manifestly excessive.

Counsel:D appeared for himself

Mr P Rutledge for the respondent

Solicitors:D represented himself

Director of Public Prosecutions for the respondent

Hearing Dates: 12 September 1996 and 19 September 1996

JOINT REASONS FOR JUDGMENT - de JERSEY and LEE JJ

Judgment delivered the 24th day of September 1996

The applicant for leave to appeal against sentence is a 62 year old married man who pleaded guilty in the District Court to three counts of attempted rape, one of maintaining a sexual relationship with a child under 16 with a circumstance of aggravation (his being her guardian, and unlawfully and indecently dealing with her), three counts of indecent dealing with a child under 16 with a circumstance of aggravation (his being her guardian), one of permitting himself to be indecently dealt with by a child under 16 (while her guardian), and one of procuring the complainant to commit an act of gross indecency.  For the count of maintaining a sexual relationship, he was sentenced to 9 years' imprisonment, with a recommendation for eligibility for parole after 4 years (in context of a maximum of 14 years' imprisonment).  For each count of attempted rape (maximum 14 years' imprisonment), he was sentenced to 4½ years.  For each count of indecent dealing, he was sentenced to 3 years' imprisonment (maximum 10 years), with 3 years being imposed for each of the other two indecency counts (maximum 7 years).  All terms are to be served concurrently.  His effective sentence is therefore the 9 years imposed for the offence of maintaining a sexual relationship, with a recommendation for eligibility for parole in respect of that term after 4 years.  He seeks leave to appeal on the ground that the sentences were manifestly excessive.
     The applicant is the complainant's stepfather.  We offer the following brief summary of the circumstances of the offences, taken from the outline provided by counsel for the respondent:

"Counts 1 & 2 - indecency, attempted rape

The offences occurred at a motel at Childers where the applicant and his then fifteen year old step-daughter were staying.  He told her to put a pink silk nightie on, then after giving her a drink told her to lie down on the bed.  He then took her nightie off, touched her vagina and penetrated it with his fingers.  He then lay on top of her and attempted to penetrate her with his penis, but she closed her legs to prevent penetration.

Counts 3, 4 & 5 - indecent dealing (3)

The offences occurred in the house in which the applicant, complainant and the rest of family were then living.  The applicant came into the complainant's bedroom (15 yrs of age at the time) asking why she hadn't woken up earlier and come to his bed.  He then started stroking and rubbing her breasts (ct 3); he then touched her vagina penetrating it with his fingers for about 15 to 20 minutes (ct 4); and then told her to grab his penis and masturbate him, which she did (ct 5).

Count 6 - attempted rape

This offence occurred in the family home about 1 to 2 weeks before the complainant's sixteenth birthday.  He attempted to penetrate her but the complainant would not let him.

Count 7 - attempted rape

This offence occurred in the family home about 1 to 2 weeks after the complainant's sixteenth birthday.  He attempted to penetrate the complainant unsuccessfully.

Count 8 - indecency

This offence occurred when the applicant and complainant were in the shower together at home - she was then aged 16 years.  He asked her to masturbate him, which she did.

Count 9 - maintaining a sexual relationship

Encompasses counts 1 to 6 against a background that within the period alleged (1 February 1995 to 25 September 1995) the applicant was frequently touching the complainant on the breasts and vagina, in some weeks up to 3 times a week."

As pointed out by Justice Fryberg, the learned sentencing judge, mentioning Count 9, said there were "more than three counts involving matters of a sexual nature".  Her Honour should be taken to have meant "occasions".  In any event, for the reasons he gives, any inaccuracy in expression is inconsequential.
     The sentencing judge accepted the prosecutor's description of the case as involving "a breach of parental duty at its worst".  It had led, among other things, to the complainant's isolation from the rest of her family; she now lives with foster parents.  It was in our view a case of serious sexual misconduct.  On any reasonable view, it justified a sentence which would offer salutary punishment and deterrence.
     There is one aspect of the judge's approach which was discussed before us, to which we should particularly refer.  The judge sentenced the applicant on the basis that he had shown violence to the complainant, as emerges from this passage in her sentencing remarks:

"She was in great fear of you and I am sentencing on the basis that you threatened her.  She learnt from an early age, to use her words, to keep her mouth shut.  I also sentence on the basis of evidence from a potential witness that there was actual violence as well as threats of violence."

The question whether that was warranted arose during the hearing of the appeal.  Material placed before her Honour included a statement from the complainant which covered the applicant's relationship with her from the time she was 6 years old, when the family was living in Sydney.  They moved to Childers in Queensland when she was 15.  That material was received by her Honour on the limited basis that it went to evidence the "guilty passion" which the applicant developed towards the complainant.  The complainant's statement contains assertions which relate to violence or threats of violence on the part of the applicant.  For example, she says:

"I could not ask my step dad to stop the things he was doing to me as I was scared he would yell at me or hurt me.  He had hit me on a few occasions since I was six and I had learnt to keep my mouth shut."

This did not lose relevance because it particularly related to events in Sydney.  The Sydney conduct of the applicant had a continuing relevance as explaining the complainant's unwilling acquiescence in the conduct constituting the later offences.  We consider that is the way Her Honour approached the matter.
     The evidence of actual violence from a potential witness, to which her Honour referred, concerned Mrs Martin's observations at the motel at Childers.  In her statement, she said that she then saw evidence that the complainant had been hit by the applicant.  Although that might not be particularly referable to counts 1 and 2, it was nevertheless relevant, as going to the complainant's attitude in the time frame of the offences, resulting from the applicant's conduct towards her; and that, again, is the way we would regard Her Honour as having used the material.
     The learned judge raised with defence counsel the question whether the applicant accepted the Crown allegation that the applicant had made threats and was violent in the course of his sexual relationship with the complainant.  The defence unequivocally accepted the Crown position, as emerges from this exchange:

"HER HONOUR:  What about the allegation that there were threats?  Apart from what you have just spoken about - the Crown is sentencing on - you heard me have this discussion with Mr Tregenza, threats, violence, and actual violence, so we need to get this straight.

MR BROWN:  Your Honour, he says that he never did threaten her.  They are his instructions.  It is the case that he does not want these proceedings to result in the complainant having to be cross-examined.

HER HONOUR:  Well, that would be the result if it is contested facts.  He can't have it both ways, Mr Brown.  If he says that his daughter is lying on this, then it will be a sad position and she will have to go in the box to give evidence.  I will make the finding who I believe so you have to get instructions on that.  There is no middle position.  What about Cheryl Martin?  Is she also to be called a liar?

MR BROWN:  I will just briefly talk to my client.  From speaking, or from having spoken with him he wants to accept the Crown case.

HER HONOUR:  Just clarify those two particular points.

MR BROWN:  Your Honour, my client does not want it to go to court and my instructions are that he accepts the Crown case."

In those circumstances, the learned judge was in our view plainly entitled to take account, as she did, of the evidence of violence and threats.
     In favour of the applicant, the judge took account of his plea of guilty, though late, and his health problems, which included a duodenal ulcer in remission and a heart problem necessitating the regular use of a puffer.  There has been no suggestion that the judge ignored any particular feature which might have alleviated the position of the applicant.
     Before us, the applicant sought, in general terms, a more lenient sentence.  In his written material, he emphasised a number of things, including his age and the condition of his health, his feelings of remorse, and his otherwise unblemished record.  He sought a lesser sentence, so that he might rejoin his wife (who continues to stand by him) and son.  We have had regard to all of the material placed before us by the applicant.
     There is, in the record, no evident misapprehension of relevant circumstances on the part of her Honour.  In particular, her Honour's sentencing remarks, apparently presented with considerable care, were unobjectionable:  there is no ground for concluding that she fell into error in her balancing of the relevant considerations.
     It remains then to consider whether the effective sentence of 9 years' imprisonment, with a recommendation for eligibility for parole after 4, fell within an appropriate range.
     It is of some considerable significance in that regard that before her Honour, the Crown prosecutor having suggested a range of 6-10 years, defence counsel - in response to her Honour's specific enquiry - expressed no disagreement with that range.
We were referred by the respondent to appellate decisions on sentencing in Queensland for maintaining a sexual relationship with a minor where, as here, the maximum penalty was 14 years' imprisonment. (The lack of more is probably explained by its being a comparatively recent addition to the Criminal Code.) The applicant referred to Holzinger, a sentence imposed on 26 July 1996:  although the particular conduct charged there is similar to this, that prisoner apparently was not charged with the more serious offence of maintaining a sexual relationship with a minor.  He also referred to L, unreported, NSW Court of Appeal, 17 June 1996, distinguishable - other matters apart - as a case of two instances of touching and one of digital penetration, and no count of maintaining.  We turn to the Queensland Court of Appeal decisions.
     The first is Ryan, Court of Appeal Nos 356 and 368 of 1995, where a 10 year sentence for maintaining a sexual relationship with a child under 16 was reduced to 8 years on appeal (following a trial).  The applicant interfered with the complainant, who suffered from cerebral palsy, while driving her daily to and from school.  The offending conduct there occurred over 21 months - here 9 months - but the conduct here appears to have been even more intrusive and abhorrent.  The plea of guilty in this case was reflected through some favouring with relation to parole.  The second case is S, Court of Appeal No 327 of 1995, where the court declined to interfere with a sentence of 7 years, with a recommendation for eligibility for parole after 3, imposed on a 37 year old man who pleaded guilty to maintaining a sexual relationship with his son over a 3 year period to the age of 12.
     In that context, and especially because of the similarity between this sentence and the sentence imposed on appeal in Ryan, we are unable to conclude that the sentence imposed here of 9 years' imprisonment with parole recommended after 4, was manifestly excessive.  It was certainly a high sentence, but not "manifestly excessive" as needs to be established to warrant intervention by this court.
     We would therefore refuse the application for leave to appeal.

REASONS FOR JUDGMENT - FRYBERG J.

Delivered the 24th day of September, 1996

In the course of sentencing, the learned District Court judge said:

"Count 9 is maintaining and arises because there are more than three counts involving matters of a sexual nature, and the penalty prescribed under our Criminal Code for maintaining is a very high one.  Maintaining is a charge which is viewed as extremely serious by the community.

You were at the time, as is alleged in the indictment, her guardian.  She was entitled to rely on you as her stepfather.  This is a circumstance of aggravation which I take into account in a significant way.  I agree with the Prosecutor that it was a breach of parental duty at its worst.  You exploited her.  You treated her as a sex object.  You admitted that you did it for self-gratification.  You conditioned her to sexual abuse.  You did so frequently.  You did a variety of sexual acts and you forced her to do a variety of sexual acts; touching of the vagina, touching of the breasts, digital penetration whilst in bed and in the shower, touching your penis, ejaculation, masturbation and attempted rape.  In the context of this she was in great fear of you and I am sentencing on the basis that you threatened her.  She learnt from an early age, to use her words, to keep her mouth shut.  I also sentence on the basis of evidence from a potential witness that there was actual violence as well as threats of violence."

In my judgment that passage discloses three significant errors. 

First, it appears that the judge sentenced on the basis that count 9 arose because more than three counts involving matters of a sexual nature were charged.  That is not correct.  Count 9 arose because the applicant maintained an unlawful relationship of a sexual nature with his step-daughter during the eight months or so immediately preceding her sixteenth birthday[1]. Under s.229B(1A) of the Criminal Code, that charge could not result in a conviction unless it were shown that during that period he did an act defined to constitute an offence of a sexual nature in relation to her on three or more occasions.  By his plea of guilty the applicant must be taken to have admitted doing such acts.  But the judge's statement in the first paragraph quoted above was wrong in two respects.  First, the number of counts is irrelevant to the definition of the offence.  It is the number of occasions on which acts are done that must equal or exceed three.  In the present case, there were in fact three such  occasions prior to the complainant's sixteenth birthday which were the subject of the specific charges.  Second, the prosecution did not rely only upon the occasions which were the subject of specific charges.  Reliance was also placed by the prosecution on numerous other occasions when acts of unlawful and indecent dealing occurred during the period charged, occasions which recurred on an average of about three times a week.  The acts were described by the judge in the passage quoted above.  They were asserted, and could properly be relied upon, by the prosecution as the applicant did not claim that they did not occur or otherwise challenge the assertion.

[1]Criminal Code, s.229B(1).

The error in the first paragraph quoted above in no way prejudicially affected the applicant's position.  It is of no consequence in this appeal. 

The second error was sentencing on the basis that in the context of the conduct constituting count 9, the applicant threatened the complainant.  The only basis for that view could have been a passage in the complainant's witness statement[2] which related to a period years earlier when the family was living in Sydney:

[2]The statement was before the judge, and submissions by both sides referred to it.  It should have been tendered.  On the appeal, copies were provided to the Court.

"I could not ask my step-dad to stop the things he was doing to me as I was scared he would yell at me or hurt me.  He had hit me on a few occasion [sic] since I was six and I had learnt to keep my mouth shut."

Defence counsel explicitly accepted the Crown case; but the case which was accepted was that in the statement.  It was never part of the Crown case that the applicant made threats in the context of the offensive conduct referred to by her Honour.

The third error was sentencing on the basis of evidence from a potential witness that there was actual violence as well as threats of violence.  Her Honour based her decision to sentence on that basis upon the evidence of a witness who owned the motel where the offences the subject of counts 1 and 2 occurred.  Those counts were respectively unlawful and indecent dealing and attempted rape occurring at the start of the relevant period and on the one occasion, just before the family moved to Queensland to live.  The Crown case as set out in the witness statement was:

"I know [the applicant] and have known him for at least two years.  He was a regular visitor at the motel...  .  He and his family stayed at our motel most school holidays and other times...  .

...

I can recall the evening of 30th January 1995.  I can remember it was dark when [the applicant] and [the complainant] arrived at our motel, and I was surprised to see them, as the whole family had just been in town the week before.

...

The next morning, [the complainant] came and ordered breakfast.  I cannot remember what was ordered, and she appeared to be fine.  She looked a lot better than when she had arrived, having been very tired then.  She did not look upset at all, and I can recall that we talked, but not about anything in particular.  She did not have any injuries or marks on her that I could see, and she was wearing shorts and a T-shirt at the time. 

...

I wish to add that I have seen [the complainant] on an occasion when she had been hit by her father, [the applicant], and she was really upset and as a result, was quite and reserved.  There were no marks on her and I have not seen her look like this at any other time since I have known them.

Having known [the applicant] and his family, I am able to say that [the applicant] is very strict with the children and very protective towards them."

Before us, counsel for the respondent contended that the penultimate paragraph of that passage referred to the occasion of counts 1 and 2, i.e. 30th January 1995.  In my view, the statement simply cannot be read that way. 

I do not think it can be said that these two errors were of no consequence.  It seems to me that the learned sentencing judge attributed considerable significance to the presence of threats and actual violence.  I do not think it can be said that she would have reached the same result had the errors not occurred. 

What sentence should be imposed?  The present case is at least as serious as any to which we have been referred.  One unfortunate complication is that the circumstance of aggravation charged in the indictment was that defined by s.229B(1B), not that defined by s.229B(1C).  That has the consequence that the maximum penalty applicable is imprisonment for 14 years rather than imprisonment for life.  There seems no reason why the more serious circumstance should not have been charged, since there were two counts of attempted rape during the relevant period on the indictment.  However I do not think that this error (if it be properly so described) should make any difference to the sentencing process in circumstances where the sentence is in any event less than the maximum prescribed by the lesser circumstance of aggravation.  It is not as though a different offence were being charged.  What must be considered is the appropriate penalty in all of the circumstances of this case.

It is therefore in my view quite legitimate to consider R  v  Ryan[3] as a comparable case, notwithstanding that the circumstance of aggravation there alleged exposed Ryan to imprisonment for life.  In that case, a sentence of imprisonment for eight years was held not to be manifestly excessive.  The circumstances of this case are also not dissimilar to those of R  v  S[4].  In that case, McPherson J.A., with whom Dowsett and Lee JJ. agreed, described the sentence of seven years as "high".  I disagree with that description.  The decision shows that seven years' imprisonment was not manifestly excessive.  I do not think it marks out a ceiling. 

[3]Unreported, C.A. Nos. 356 and 368 of 1995, 12th December 1995.

[4]Unreported, C.A. No. 327 of 1995, 23rd October 1995.

The applicant is to be punished for offences committed in Queensland during the first nine months of 1995.  For 8½ years prior to that time, he had repeatedly committed similar offences upon the complainant in New South Wales.  The inference is overwhelming that throughout this time he was conditioning her to be his sexual plaything.  When she was about 11, he began to say things like, "You'll be ready for me one day to fuck".  What happened in 1995 in Queensland brought matters to a head.  The complainant was traumatised and forced to leave home, the family split and the complainant's relationship with her mother was reduced to tatters.  It is no doubt true that these outcomes were not caused solely by the events of 1995.  They are the result of nine years of maltreatment.  They may wholly be taken into account in the penalty imposed for the present offences, since the present offences precipitated their occurrence.  It would however be unfair for the applicant to face a further trial in New South Wales in respect of his conduct there, at least insofar as that conduct has been put before this Court[5].

[5]Compare Mill  v  The Queen (1988) 166 C.L.R. 59.

The Crown did not suggest any penalty higher than that imposed below should be imposed in the exercise of discretion by this Court.

In my judgment the applicant should be imprisoned for nine years.  The circumstances referred to by the learned District Court judge warrant a recommendation that he be eligible for release on parole after having served four years of that term.  I would grant the application for leave to appeal, but dismiss the appeal.