R v D

[1992] QCA 14

IN THE COURT OF APPEAL  [1992] QCA 014

SUPREME COURT OF QUEENSLAND

C.A. No. 303 of 1991

Before the Court of Appeal

The President

Mr Justice Pincus

Mr Justice Davies

THE QUEEN

v.

D

JUDGMENT - THE COURT

Delivered the 6th day of March 1992

MINUTE OF ORDER: Application for leave to appeal should be refused.

CATCHWORDS:                  CRIMINAL LAW - SENTENCE - Applicant seeks leave to appeal against sentence of 6 years for attempted rape of 13 year old daughter of de facto - whether judge erred in failing to add recommendation for parole considering mitigating factors of plea of guilty, poverty, remorse and abuse as a child

Counsel:S. Herbert for the Respondent

M. Byrne for the Crown

Solicitors:Messrs. Robertson and O'Gorman for the Respondent

Director of Prosecutions for the Crown

Hearing Date: 28 February, 1992

JUDGMENT - THE COURT

Delivered the 6th day of March 1992

The applicant was convicted on his own plea on 25 October 1991 of one charge of attempted rape and four charges of unlawfully and indecently dealing with a girl under the age of fourteen years.  He was sentenced by Judge Botting in the District Court to six years imprisonment for attempted rape and three years imprisonment, to be served concurrently, on each conviction for indecent dealing.  The applicant applies for leave to appeal to this Court on the ground that the sentence for attempted rape was manifestly excessive.  However, his counsel frankly conceded that the only complaint which he could hope to advance at this point was an absence of a recommendation by the sentencing judge that the applicant be considered for early parole.

The applicant was sentenced on the basis that the offences of which he was convicted were not isolated events but part of a course of conduct  in which he engaged over a number of years with a female child in relation to whom he stood in a quasi-parental relationship.  The applicant had commenced to live in a de facto relationship with the mother of the child in 1980 when the child was about 5 years old.  Two of the offences of indecent dealing of which the applicant was convicted took place between the end of August and the beginning of October 1986 and the offence of attempted rape of which the applicant was convicted took place between the end of August and the beginning of November 1986, when the child was 11 years of age.  Another of the offences of indecent dealing of which the applicant was convicted took place between 31 August 1988 and 1 February 1989, and the remaining offence of indecent dealing of which the applicant was convicted took place between 31 May 1989 and 3 July 1989.  The child had her fourteenth birthday shortly afterwards.

It is unnecessary to detail the despicable conduct in which the applicant engaged with the child, which included cunnilingus, inserting his finger into the child's vagina, inserting his penis into the child's mouth and obliging the child to masturbate him.  The attempted rape was discontinued only because the child's vagina was too small to receive the applicant's penis.  Not surprisingly, the child has been psychologically damaged by her experiences and has had behavioural and other problems.

Not long after the last of the offences for which the applicant was convicted, the child's mother and the applicant terminated their de facto relationship and he formed another de facto relationship with a different woman to whom he admitted what he had done.  A few months later, when asked by the child's mother, he acknowledged to her what had occurred with the child.  From that point on, the applicant co-operated fully and there is little reason to doubt that he feels remorse and shame.  He pleaded guilty early in the proceedings, and the child was not at any time required to give evidence.

At the time when he was sentenced, the applicant, who is of aboriginal descent, was thirty-four years old, had a job and a stable de facto relationship.  He has no relevant criminal history.  Further, as the learned sentencing judge recognised, the applicant had suffered poverty, deprivation and abuse, including sexual abuse, when a child.  His Honour also noted that the applicant was prepared to undergo treatment in the prison system and that he had prospects of rehabilitation and that "... it should be possible for you upon your release to make a decent life for yourself."  However, it was submitted that an absence of any recommendation that the applicant be considered for early parole indicated that insufficient regard had been paid by the sentencing judge to mitigating factors and in particular that the applicant's rehabilitative prospects had not been adequately recognised.

There is no substance in these complaints.  The maximum period of imprisonment for attempted rape is fourteen years and for indecent dealing is five years.  The decisions to which we were referred in the course of argument did not suggest any disconformity between the sentences imposed upon the applicant and other sentences which have been imposed for such conduct.  The decision not to make a recommendation that the applicant be considered for early parole was within the sentencing judge's discretion, and his omission to make such a recommendation provides no basis for a conclusion that the sentences which he imposed were manifestly excessive.

Accordingly, the application for leave to appeal should be refused.