R v L

[1999] QCA 423

99.423

COURT OF APPEAL
de JERSEY CJ
DAVIES JA

JONES J

CA No 242 of 1999
THE QUEEN
v.

L

(Applicant) Appellant

BRISBANE
..DATE 07/10/99
071099 T8/SA2 M/T COA242/99

DAVIES JA: The applicant pleaded guilty in the District Court at Townsville on 27 October last year to one count that between 1 January 1996 and 8 July 1998 he maintained an unlawful relationship with his stepson with two circumstances of aggravation; the first that during the relationship he had carnal knowledge by anal intercourse with the child who was then under 16; the second that the child was under his care.

In fact, there were nine acts of anal intercourse which occurred over a period of two and half years whilst the child was aged between nine and a half and 12. At the relevant time, the applicant was separated from his wife, the child's mother.

On 28 June this year, the applicant was sentenced in respect of that offence to a term of 13 years imprisonment. He seeks leave to appeal against that sentence.

At the time of his sentence, the applicant was 34 years of
age, having been born on 9 August 1964. He has a number of
previous convictions, the most significant of which, for
present purposes are the following. On 3 December 1985 he was
convicted on two counts of rape and three of indecent assault
for which he was sentenced to an effective term of 10 years
imprisonment. He escaped from custody in 1991 and was
sentenced for that offence in that year to six months
imprisonment cumulative upon his previous sentence.
071099 T8/SA2 M/T COA242/99

Then on 24 October 1997 he was convicted of serious assault on a police officer, going armed, wilful damage, assault and resisting police for which he was sentenced to an effective term of 12 months imprisonment suspended after three months for an operational period of 18 months.

This short term of imprisonment interrupted the offending conduct, the subject of the present appeal, which continued unabated during part of the period of the suspended sentence.

It is unnecessary to discuss in detail the applicant's revolting conduct towards his young and vulnerable stepson over the period to which I have referred. It is sufficient to say that they included not only nine acts of anal intercourse, to which I have already referred, but two incidents where the applicant rubbed his penis against the child's anus without penetration.

The applicant's mother must have suspected, before the end, that something was amiss because she had on a number of occasions asked the child whether any sexual misconduct had occurred and the child had denied it. This was because the applicant had told him that he would hurt the child or his mother if the child ever mentioned what had occurred.

Eventually, after the last of the nine sodomies which occurred
on 7 July 1998, the child did complain to his mother who then
called in the police.
071099 T8/SA2 M/T COA242/99

The applicant was arrested and charged but initially declined to take part in an interview. Later, as I have mentioned, he pleaded guilty.

Apart from the applicant's plea, there is little that can be
said in his favour. There is reference in the reports of
Dr James and Mr Schauer, a psychologist, to the applicant's
beliefs, derived from his Torres Strait culture, in some
supernatural powers which he believed his father and paternal
grandfather possessed and which had been passed onto him but
nothing said to either of the professionals appears to have
been put forward by the applicant as an excuse, let alone
justification for his appalling conduct. The learned
sentencing judge quite rightly discounted this as a matter of
any significance in the sentencing process.

Unsurprisingly, the applicant's conduct has had a substantial psychological effect on the child as evidenced by his and his mother's victim impact statements. No doubt his feelings of fear and anger will stay with him for a considerable time, perhaps even permanently.

The question before this Court is not whether the applicant's offences justify a substantial term of imprisonment. There is no doubt that they do. The question is whether, having regard to the sentences imposed in other comparable cases, some less serious, others more serious than this, the sentence of 13 071099 T8/SA2 M/T COA242/99

years imprisonment is manifestly excessive.

The principal matters relied on to justify that sentence are that the offence of maintaining included nine acts of sodomy, each itself being an offence with a maximum of life imprisonment; that the applicant had a previous criminal record which included an offence of rape; that the offences were committed in part during a period in which the applicant was serving a suspended sentence; the age of the child and the position of trust of the applicant; the length of time over which these offences persisted; and the fact that the applicant did not desist of his own accord but only when complaint was made to the police. The principal, and it seems to me the only matter advanced in his favour, is his plea of guilty.

No less than 10 specific decision were cited to this Court as comparable ones. In addition, we were referred to a schedule containing many cases of maintaining an unlawful sexual relationship. It is unnecessary to refer to all or even most of these cases. I shall mention only four which seem to me closest to this one although, unsurprisingly, none bears a direct comparison.

All of the matters I am about to mention came before this
Court, two in 1993 and the others in 1996. The first in point
of time is Kingwill, CA No 75 of 1993, 13 May 1993.
071099 T8/SA2 M/T COA242/99

The applicant there had a long and serious prior history of similar offences. All of them had involved young male children. Consequently, his history was one of a persistent offender against young boys. The sentences against which he appealed to this Court involved a variety of sexual offences committed on a young boy over a period of four and a half years, commencing when the boy was 11. They included, like this case, a number of acts of sodomy. As in this case, the child was in his care. The submission to this Court that a sentence of 10 years imprisonment was excessive was rejected.

In that case, the applicant's previous history was

undoubtedly worse and the likelihood that he would continue to
commit such offences considerably greater. But it is
difficult to say from the short judgments in that case whether
the circumstances of the commission of the offences in that
case were more or less serious than this. In any event, the
decision of this Court is no more than that the sentence was
not too high. It does not imply that a higher sentence would
not have been appropriate.

In Morrison, CA No 314 of 1993, 9 November 1993, the applicant had no relevant criminal history. Like this case and Kingwill, it involved maintaining an unlawful sexual relationship which included anal intercourse.

There the relationship continued for about a year, starting
when the child was not seven. Moreover, unlike this case and
Kingwill, the applicant pleaded not guilty, putting the child
071099 T8/SA2 M/T COA242/99
through the ordeal of a trial. Nevertheless, a sentence of 12
years imprisonment was reduced by this Court to nine years.

However, it should be said that, in addition to the fact that there does not appear to have been any relevant prior criminal history, there does not appear to have been any relationship of trust between the applicant and the child.

In R v A, CA No 55 of 1996, 29 April 1996, an effective sentence of 12 years imprisonment had been imposed by the learned sentencing judge for a range of offences which included maintaining a sexual relationship with a child, including anal intercourse. The child was between 11 and 12 during the time these offences were committed. There was a trust relationship between the two, the applicant being a friend of the complainant's father but the applicant had pleaded not guilty and shown no remorse. There had been no violence or threats involved and, unlike the present case, the applicant in that case also had a previous sexual history which appears to have been one of persistence involving young boys. The sentence of 12 years imprisonment was reduced by this Court on appeal to one of 10 years.

Finally, in R v H, CA No 110 of 1996, 5 June 1996, the offences involved more than one child. In each case, they involved anal intercourse. The children appear to have been of young teenage age. The applicant, who was 49 at the time of the commission of these offences, had also been convicted 071099 T8/SA2 M/T COA242/99

on a number of previous occasions of offences involving young
boys. At least one of these relationships, the subject of the
appeal, involved a situation of trust. Each of them involved
children who were in a very vulnerable situation because they
had run away from home.

The Court thought it an extremely aggravating circumstance, that the warnings given by judges on other occasions had had no effect and that, in effect, these offences had been committed whilst he was on parole for similar offences.

A sentence of 12 years imprisonment was not disturbed by this Court. It must be said, however, that by his conduct with children under his care, on many occasions, the applicant in this case demonstrated that he was a persistent offender.

For the sake of completeness I should mention the other cases
specifically referred to by the applicant: R v B
CA No 58 of 1997, Knijff (1993) 69 ACrimR 236, Simpson,
CA No 461 of 1998 and R v B, CA No 328 of 1995; and those
referred to by the respondent were Krieger, CA No 13 of 1991
and R v S, CA No 316 of 1993. I have had regard to those
cases also.

It is true, I think, as mentioned during the course of argument, that many of those cases, if not all of them, were cases in which the regime presently existing for serious violent offenders did not exist so that in each case the 071099 D.1 T9/IRK13 M/T COA242/99

person sentenced would have become eligible for parole at the
halfway mark.

The cases to which I specifically referred and which, as I have said, are those referred to, those which are most closely comparable to this, show, in my view, that the sentence imposed was manifestly excessive and that it is out of line with those cases.

I do not think that a sentence of more than 11 years would have been justified. Of course, the result of the imposition now of a sentence of 11 years is that the offender will be liable to serve 80 per cent of the term of imprisonment.

I would, therefore, grant the application, allow the appeal, set aside the sentence below and impose a sentence of 11 years imprisonment.

THE CHIEF JUSTICE: I agree.

JONES J: Despite my concern that the applicant has shown
little remorse and that there is little likelihood of his
being rehabilitated, I also agree. I do so because I
recognise the importance of having a consistent approach to
punishment imposed on offences of this kind. I accept that
the sentence was somewhat out of line with cases upon which
this Court has determined appropriate penalties.
071099 D.1 T9/IRK13 M/T COA242/99

I do, however, record a concern that the harm done to young people by the conduct of the kind in which the appellant was engaged, often continues and is also often referred to in explaining subsequent aberrant behaviour. In the future, I would hope for some review of the types of penalties that are imposed for this type of offence.

THE CHIEF JUSTICE: The orders are as has been indicated by

Justice Davies.

-----