R v L and Attorney-General of Queensland

[1996] QCA 58

IN THE COURT OF APPEAL	[1996] QCA 058
SUPREME COURT OF QUEENSLAND

C.A. No. 473 of 1995

Brisbane

Before	McPherson J.A. Pincus J.A. Davies J.A.
[R. v. L]

T H E Q U E E N

v.

L

(Respondent)

ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

McPherson J.A.
Pincus J.A.

Davies J.A.

Judgment delivered 15/03/96

Reasons for judgment by the Court

APPEAL AGAINST SENTENCE ALLOWED AND IN LIEU THE FOLLOWING SENTENCES OF
IMPRISONMENT IMPOSED:

1.           IN RESPECT OF EACH OF COUNTS 1 AND 9, IMPRISONMENT FOR 2 YEARS;

2.           IN RESPECT OF EACH OF COUNTS 2 AND 3, IMPRISONMENT FOR 2 YEARS;

3.           IN RESPECT OF EACH OF COUNTS 4, 5 AND 6, IMPRISONMENT FOR 18 MONTHS;

4.           IN RESPECT OF EACH OF COUNTS 7 AND 8, IMPRISONMENT FOR 12 MONTHS.

ALL THE SENTENCES TO BE SERVED CONCURRENTLY.

ORDER THAT A WARRANT BE ISSUED FOR THE ARREST OF THE RESPONDENT BUT THAT IT LIE IN THE REGISTRY FOR 7 DAYS TO ENABLE THE RESPONDENT TO SURRENDER HERSELF.

FURTHER IT IS RECOMMENDED THAT THE CORRECTIONAL SERVICE AUTHORITIES PROVIDE THE RESPONDENT WITH SUCH PSYCHIATRIC AND OTHER COUNSELLING AND TREATMENT AS MAY BE AVAILABLE.

CATCHWORDS	CRIMINAL LAW - SENTENCE - ATTORNEY-GENERAL'S APPEAL - INDECENT DEALING - Adult female having sexual intercourse with 12 year old boy - Exposing a child under 16 to an indecent video tape - Whether severe psychiatric problems mitigate sentence - Whether suicidal risk if imprisoned a consideration - Comment on the composition of psychiatric reports. R. v. Pham (C.A. 435 of 1996); R. v. T (C.A. 433 of 1995); R. v. Marsh (C.A. 351 of 1993); R. v. Mathers (C. A. 225 of 1995); R. v. Wallace (CCA 242 of 1991); R. v. Ward (C.A. 54 of 1993).
Counsel:	Mrs L. Clare for the applicant A. Glynn for the respondent
Solicitors:	Director of Public Prosecutions for the applicant Robertson O'Gorman for the respondent
Hearing Date:	26 February 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 15th day of March 1996

The respondent to this appeal brought against sentence by the Attorney-General pleaded guilty in the District Court at Southport to an indictment charging 7 counts of indecent treatment of a child under 16, and 2 further counts (7 and 8) of exposing a child under 16 to an indecent video tape. In each instance the offence was accompanied by the aggravating circumstance that the child was under the respondent's care and, in the case of count 8, with the further such circumstance that the child was under 12 years of age. The pleas of guilty also confessed each of those circumstances. The sentence, against which the Attorney appeals as being inadequate, was that the respondent be admitted to probation for a period of three years.

Exceptionally for a matter of this kind, the respondent is a woman, aged 29 years, married and living with her husband and five children, and the complainants are all boys, who at the time of the offence were 12 years of age, or, in the case of the complainant J in count 8, only 11.

The respondent's association with the boys developed from the fact that they were attending the same school as her 6 year old son, who was the same age as the younger brother of the principal complainant D in counts 1, 4 and 9. The boys practised baseball after school, and the respondent arranged with D's mother that the respondent would collect him after school and take him to baseball training. D's mother was grateful for this favour as she was in employment and worked during and after school hours. In time the arrangement evolved to one by which the respondent looked after D once school had ended until his mother came home from work. At this stage the respondent was noticed to be paying particular attention to D, and on one occasion took him to a sporting outing unaccompanied by anyone from her own family.

The first offence was committed on about 3 April 1994, which D recalled as being Easter Sunday, when he was staying overnight at the respondent's home. He slept on a mattress in the bedroom of one of the children. After he had gone to sleep, the respondent came into the room and woke him up. She got on to the mattress with him, pulled his pyjama pants down, pulled her nightie up, and had sexual intercourse with him (count 1). Then she left the room closing the door as she went.

The second set of offences (counts 2 to 8) took place about two days later on 5 April 1994. The respondent arranged a birthday party at her home with a "sleepover" for D and five of his friends. In fact, D's birthday was in March, and the party was unlike the common run of parties on such occasions. There were no cakes, balloons, or other such trappings. The respondent's husband left early in the evening and did not return. The respondent began by giving the boys Midori-based drinks describing them as "quick fucks". They were sweet drinks, and some of the boys, who consumed as many as five of them in the course of the evening, became affected.

In the course of the night the respondent went out with the boys leaving her infant child at home alone. They went round the neighbourhood knocking on doors and running away and, with her encouragement, throwing eggs at peoples' houses. When one householder came out to see what was happening, she hid in the bushes, and, when he grabbed her, she abused him until he let her go.

At her home again, the respondent gave the boys pornographic magazines and cards to look at. She also showed pornographic movies, including "Deep Throat", which are the subjects of counts 7 and 8 of exposing a child to indecent video tapes. By this time she was dressed only in a lace bra or singlet and "G-string". She told the boys about her sex life in some graphic detail. She took one of the boys into the bedroom. She tried to kiss him but he pushed her away and ran out. Next she took D into the room, but he resisted her advances. Then she took another boy J, whom she laid on the bed, kissing and touching him on various parts of his body, before undressing him and performing oral sex on him (count 2).

When the boys lay down on mattresses under doonas in the lounge room, she at first tried several times to persuade L to accompany her to the bedroom. When he proved reluctant, she went under the doona that covered him, removed his clothes, and performed an act of oral sex on him (count 3) in the presence of the other boys. She then went to D and, taking his hand, moved it so that his fingers stroked her vagina (count 4). She did the same again with the boys L and J placing their fingers in her vagina (counts 5 and 6). In the course of these activities, the respondent's six year old son came into the room. When this was pointed out to her, she said that he had seen it all before. The "party" lasted all night and, before the boys left in the morning, she warned them not to tell their parents as she could go to gaol and lose her children.

The final charge (count 9) on the indictment involved another offence against D. On 7 April 1994 the respondent with her husband and their six year old son went camping, taking D with them. They were away for two nights. On the first night, she and her husband agreed that she and D should sleep in one tent, and her husband and their son in the other. D protested about the arrangement, but to no avail. She had sexual intercourse with him that night, but on the following night he was allowed to sleep with their son while she slept with her husband in the other tent.

The offences came to light some time later after news of them began to circulate at the school and to cause disruptive behaviour. Changes in personality and behavioural attitudes were noticed among the boys involved. In the meantime, the respondent telephoned another boy E, who had been away on 5 April, and so missed the party. She told him that she had dreamed about him, "and I fucked your brains out". There were other telephone calls to the same boy in which she described her sex life to him. When attention at the school began to focus on her, she complained to the school principal, adopting, as it seems, an attitude of aggrieved innocence. On 14 June 1994, her husband went to the school and threatened both E and D with a baseball bat to stop them telephoning the respondent. The incident was reported, and the police were asked to investigate the matter, but the respondent declined to be interviewed. She then tried to discredit the boys and complained to the school authorities about the principal. An attempt was made to expunge the record at the video shop where the films had been hired, but the shop proprietor kept a copy of it. The committal proceedings were a lengthy affair, the record of which extended over some 437 pages of transcript, in the course of which D was reduced to tears. Even after the respondent was charged and bailed, it became necessary to alter the conditions of bail to prevent her from entering the school grounds. At least as late as August 1994, the respondent was still intending to go to trial in September. The sentence hearing at which she pleaded guilty took place on 2 November 1994.

Some of the respondent's later behaviour cannot count against her except as showing a complete lack of remorse on her part, or alternatively that she realised the seriousness of the offences she had committed. Judged by the standards of other women in the community, the respondent's behaviour is so aberrant as inevitably to raise questions about her state of mind. Steps were taken by the respondent's legal advisers to have her assessed by a psychiatrist Dr Curtis in Brisbane. A report (ex 2) dated 1 November 1994 (which was the day before the hearing) was obtained after two examinations conducted by him on 20 and 23 October 1995. The duration of the examinations are not specified, but the report is based at least in part on two other reports, one prepared by Dr David Stretton, consultant psychiatrist at Burleigh Heads, and the other by Dr Peter Golus, a clinical psychologist. Neither of those reports was tendered. Because ex 2 contains copious references to those two reports and to the information and conclusions they contain, the Court (both here and below) has been denied some of the original source material on which ex 2 itself is based. From what counsel said on the appeal, it appears that the decision not to tender Dr Stretton's report may have been a tactical one; but the result is that we have been left on appeal with what is very largely a set of conclusions from Dr Curtis without the benefit of much of the underlying information.

The respondent's personal history is that she was born in Melbourne into a family in affluent circumstances. Her parents owned a steel fabrication business and travelled a good deal. She accompanied them from an early age, resulting in what is described in ex 2 as a "pseudo-maturity" on her part, which led to her presenting "a dramatised facade of herself to her social world from the time of puberty, age 11". She attended a convent school, but became pregnant to her future husband shortly after Junior studies, and left school at age 16 in order to marry him. Elsewhere it is said that she married at 18. Her father, who has since died, was said to have had an alcohol problem; and the respondent told her consultants that her mother, who is alive, suffered from mood swings which are described in ex 2 as "some form of depressive illness". Her mother, when applied to by telephone, is reported to have avoided discussing the matter with Dr Curtis. The respondent has an older brother, now aged 38, who left home when she was 5 years old. Dr Curtis interviewed him on the telephone for about 15 minutes. Finding that the brother knew little about his sister "and conveyed even less about their family life", Dr Curtis reported that, as a clinician, he was able to gain from that source what he called "indicative support" for the respondent's story of "familial emotional impoverishment and lack of support" in her early life. On this basis, he concluded that the family from which the respondent came was "dysfunctional".

Information about the respondent's later personal history is equally sparse, except that she has had seven pregnancies in the last 10 years and, in November 1995, had five living children, then aged 10, 9, 7, 2 and 1. She has not been employed outside the home environment. Her marriage is said to be "mutually stressful" and dysfunctional. The overall assessment made by Dr Curtis is that the respondent is suffering from (1) Bipolar disorder; (2) Major depressive disorder; and (3) Borderline personality disorder This was the psychologist's opinion, with which Dr Curtis "essentially" agrees. Dr Stretton, it seems, had emphasised the histrionic features rather than borderline category of the personality disorder; but, in other respects, Dr Curtis considers that their opinions are in substantial agreement. The editors of the Comprehensive Textbook of Psychiatry III (eds. Kaplan Freedman & Sadock), vol. 2, at 1577, remark that the histrionic form of disorder "is characterised by colourful, dramatic extroverted behaviour in excitable emotional persons". They go on to specify:

"1.

Behaviour that is overly reactive and expressed intensely without reserve, as indicated by at least three of the following: (1) self-dramatization and exaggerated expression of emotions; (2) incessantly drawing attention to oneself; (3) craving for activity and excitement; (4) emotional excitability in response to minor stimuli; (5) irrational, angry outbursts or tantrums; (6) manipulative suicide threats, gestures, or attempts.

2.

Characteristic disturbances in interpersonal relationships, as indicated by at least two of the following: (1) seen by others as shallow even if superficial warmth, charm and appeal; (2) demands and lack of consideration for the wishes of others; (3) vanity, egocentricity, and self-absorption; (4) dependence, helplessness, constant seeking of assurance."

It should also be added that at the time of the offences in April 1994, the respondent was six weeks pregnant with her most recent child, and suffering from a hormonal imbalance which complicated her mental and emotional condition.

It is difficult from the information available to determine when the respondent was first found to be suffering from the mental state now being diagnosed. Between January and June 1995, Dr Stretton treated her for major depression, post natal depression, and marital problems associated with domestic violence which she claimed was directed at her. The nature of the "violence" is not detailed, although on the respondent's history given to Dr Curtis it was described as "verbal abuse and oppression". The description does not fit comfortably with what is known about her husband's conduct in this case, nor with the patterns of her own behaviour and language before, during and after the offences. The post-natal depression is, of course, explained by her having given birth in December 1994 or thereabouts. In January 1995 she was found by Dr Stretton to be a suicide risk, a condition reported to him to have been manifested by her stepping in front of traffic in July 1994, which, it may be noted, coincides with or follows shortly after the time when complaints about her were being investigated by the school and the police. From January to June 1995, she was treated with anti-depressants and psychotherapy, which Dr Stretton thinks might have been somewhat successful in reducing what was then a severe suicide risk.

Giving weight to these mitigating factors in the respondent's favour, it does not relieve her of all culpability for her actions, particularly when considered in the light of other circumstances. It is true that all nine offences took place within a period of only about four or five days; however, it is also clear that they were not impulsive actions undertaken on the spur of the moment, but were the outcome of careful calculation and planning in advance. At an adult party she attended earlier in 1994, she told other persons who were present that she had a fantasy about having sex with a 12 year old boy. It was at that party that she was shown how to mix a Midori and lemonade. In the school grounds and at a meeting of a parish youth group before the offences were committed, she surrounded herself with grade 7 boys and recounted her sexual exploits as a child, saying that she had been expelled from an exclusive Melbourne school because she was pregnant at 14. It is not suggested that she was suffering hormonal imbalance through pregnancy at the time she disclosed her fantasy at the adult party, nor at the time when she first took a fancy to D. The departure of her husband from the house on the night of the party, and the sleeping arrangements on the nights of the camp outing invite an inference that (assuming it was not arranged with his foreknowledge) she may have contrived to have him out of the way on each occasion so that she would be free to indulge herself without supervision.

Expressed in plain language, the psychiatric assessment is that at the time of the offences she was suffering from a significant mood disorder, in the course of which she experienced "an immature identification with a 12 year old boy, whom she perceived as also emotionally deprived like her". This sympathetic description is not easy to reconcile with her gathering together five boys, of whom D was only one, for the purpose of putting her fantasies into effect on the night of 5 April 1994. The explanation given for her behaviour on that occasion is that her sexual "acting-out" with under age male children occurred whilst she was disinhibited by a combination of mood disorder and pregnancy hormonal changes.

Overall, the respondent's conduct fairly merits the description "predatory" used by Mrs Clare of counsel for the Attorney-General in the course of her submissions to this Court. As has already been noticed, her actions after the event were far from remorseful, but demonstrated a determination to proceed with conduct of this kind for as long as her offences remained undetected.

The sentencing judge seems to have had some difficulty in seeing how the respondent's conduct could have had an adverse impact on the outlook and future development of boys of this age. We do not share that difficulty. Some of the effect on their behaviour at school has already been referred to. The boys' impressions of the nature of female sexuality and its function as a significant part of normal human relationships can only have been seriously distorted and undermined by what she did. The respondent betrayed the trust placed in her by the boys' parents and by the boys themselves when she took them under her care. Indeed, judged by the standard of the boys with whom she is said to have been seeking to identify, they behaved a good deal better than she did in the circumstances in which they found themselves placed at the party on 5 April. The ordeal of investigation and inquiry which they experienced afterwards can only have left them with feelings of profound guilt.

We were, naturally enough, pressed with the consequences for the respondent and her family if she is separated from them by imprisonment. So far as her children are concerned, we are not on this appeal required to consider whether their welfare would be better served if she ceased to have custody of them. As regards the respondent herself, it is said that she will become suicidal again if she is sent to prison. That is not an uncommon response from persons of either gender confronted by imprisonment for offences like these. Much as their plight may be pitied, that form of punishment is not an outcome which, in comparable cases, others are permitted to avoid on that ground. As was recently confirmed in R. v. Pham (CA 435 of 1995), the prevailing attitude in this Court is that generally those who indecently assault or otherwise deal with children should suffer imprisonment. See also R. v. T (CA 433 of 1995). The respondent's nine offences here, whether taken individually or cumulatively, are considerably more serious than those considered in either of the appeals mentioned. They are exceptional only in the respect that she is a woman offender.

The statutory maximum for an offence under s.210 of the Code, when accompanied by one or more of the circumstances of aggravation charged here, is imprisonment for 10 years. The respondent is a first offender, but she has committed multiple offences and against several different victims, and has offended against one of them on three separate occasions. Mrs Clare submitted that the range within which sentencing should have proceeded was 3 to 4 years imprisonment. Among other matters, she referred to R. v. Marsh (CA 351 of 1993), R. v. Mathers (CA 225 of 1995) and R. v. Wallace (CCA 242 of 1991) as being somewhat analogous cases in this Court.

In Marsh the applicant for leave to appeal had pleaded guilty under s.210 to indecently dealing with a child under 16; to permitting himself to be indecently dealt with by that child; and, under s.208(2), to permitting a child to have carnal knowledge of him by anal intercourse. The maximum penalty for an offence under s.208(2) is imprisonment for 14 years if the child is under the age of 12 years. The boy in Marsh was 12 years old, and the penalty imposed of 5 years imprisonment was reduced on appeal to 3 years and 6 months with a recommendation for parole after 12 months. However, in that instance, only one victim was involved in what was described as a "brief" single incident, about which the applicant showed genuine remorse. In Mathers, the complainant was the applicant's 8 year old stepdaughter, whom the applicant twice exposed to an indecent video tape; he also twice touched and licked her vagina, and twice forced her to touch and suck his penis, as well as masturbating and ejaculating over her. In respect of a sentence of imprisonment of 3 years, his application for leave to appeal was refused. In Wallace, a woman of unspecified age, was convicted of 4 counts of indecently dealing with her own daughter aged under 16, and on another occasion earlier when she was under 14, as well as exposing her to an indecent act. She had participated under coercion in assisting her husband (who was not the father of the child); but there was some evidence that she might herself have also been deriving some sexual gratification from his conduct, which had continued over a period of five years from the time when the girl was aged about 10 to 15 years. The applicant in that case was diagnosed as having a major depressive disorder complicated by psychotic features. A penalty of imprisonment for 4 years with a recommendation for parole after 9 months was not disturbed on her application for leave to appeal. In R. v. Ward (CA 54 of 1993) a 55 year old man was ordered to serve an effective term of imprisonment for two years (after being in custody for 7 months before trial) for offences under s.210 consisting of exposing two girls aged 6 and 10 to an indecent video; filming them taking a bath; exposing himself to them; having them masturbate him and suck his penis; and rubbing his penis on their genitals. His application to appeal against sentence was dismissed.

Having regard to the sentences in those and other cases; the number of different victims involved here; the fact that the total of nine offences were committed on three separate occasions, all of them while the children were under the care of the respondent; and her manifest lack of remorse, the respondent's offences properly attract a sentence falling within the range suggested by Mrs Clare. For reasons we have explained, we do not consider that much weight can be attached to ex 2 in the absence of the supporting material, including Dr Stretton's report, on which it was based. It is, however, apparent that women of normal personality and outlook of this age do not behave like the respondent. Making some allowance for deficiencies or peculiarities in her make-up and personality, we consider that an appropriate sentence in her case is imprisonment for 2 years. Compared with that, the order for probation that was made below is plainly and manifestly inadequate in failing to reflect the respondent's culpability for these offences.

The appeal by the Attorney-General is allowed. The distribution of the penalty across the nine offences may not matter very much; but as a matter of form, it may be prudent to allocate terms of imprisonment as follows. In respect of each of counts 1 and 9 (indecent dealing by sexual intercourse with D), a sentence of imprisonment for 2 years is imposed; in respect of each of counts 2 and 3 (performing oral sex on J and L), imprisonment for 2 years; in respect of each of counts 4, 5 and 6 (having D, L and J fondle her vagina), imprisonment for 18 months; in respect of each of counts 7 and 8 (exposure to pornographic video tapes), imprisonment for 12 months.

All the sentences are directed to be served concurrently. This is not a case in which a recommendation for early eligibility for parole is appropriate; but we recommend to the correctional service authorities that the respondent be provided with such psychiatric and other counselling and treatment as may be available.

A warrant must issue for the arrest of the respondent. We are prepared to order that it lie in the Registry for 7 days to enable her to surrender herself.