R v Lee

[2012] QCA 313

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lee [2012] QCA 313

PARTIES:

R
v
LEE, Douglas Phillip Allan
(applicant)

FILE NO/S:

CA No 142 of 2012
DC No 479 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

16 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

26 October 2012

JUDGES:

Margaret McMurdo P and White JA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant was convicted of the rape of a seven year old girl and sentenced to three years and six months imprisonment with parole eligibility after half the sentence – where applicant’s counsel had sought head sentence of three years at trial – where applicant had lengthy criminal history – where prosecution case was strong – whether sentence was manifestly excessive in all the circumstances

Corrective Services Act 2006 (Qld), s 176, s 194

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, considered
R v AAD[2008] QCA 4, considered
R v Frame[2009] QCA 9, cited
R v NH[2006] QCA 476, considered
R v SAH[2004] QCA 329, considered
Veen v The Queen [No 2] (1998) 164 CLR 465; [1988] HCA 14, followed

COUNSEL:

The applicant appeared on his own behalf
A W Moynihan SC for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. MARGARET McMURDO P:  I agree with White JA's reasons for refusing this application for leave to appeal against sentence.

1. WHITE JA:  On 4 June 2012 the appellant was convicted after a three day trial in the District Court at Ipswich of raping a seven year old girl on 8 May 2011.  He was sentenced to imprisonment for three and a half years with parole eligibility fixed at 4 March 2014, that is, after serving half of the sentence imposed. 

1. He contended in his grounds of appeal that his conviction was unsafe and unsatisfactory having regard to all of the evidence.  He sought leave to appeal his sentence on the basis that it was manifestly excessive in all the circumstances. 

1. By a document filed on 23 October 2012 the appellant indicated that he was representing himself and was no longer pursuing his appeal against conviction.  He confirmed this at the appeal hearing on 26 October.  Accordingly, an order was made refusing his appeal against conviction.  He was desirous of progressing his application for leave to appeal against his sentence.  It is appropriate to refer to him hereafter as “the applicant”.

1. The applicant had written out the submissions which he proposed reading to the court in respect of his sentence application.  Those submissions were then copied to assist the court and the respondent the better to understand the arguments.  Before turning to them the circumstances of the offending need to be set out.

Circumstances of offending

1. On 8 May 2011 the complainant, who was aged seven, was at home at Ipswich with her 17 year old sister.  Their mother’s de facto partner was in their bedroom in the house.  The mother arrived home in the afternoon with a female friend and her partner and the female friend’s brother who is the applicant.  It was the first time that the complainant and her sister had met the applicant.  Everyone gathered in the kitchen area listening to music on laptop(s).  In the early evening the complainant was sitting on the applicant’s lap playing music on a laptop.  She was observed to be in very good spirits.

1. The complainant was helped to get ready to have her bath by her older sister, although the complainant bathed herself that night.  After the bath she was seen walking normally and without any complaint.  At about that time the applicant said that he was feeling unwell and asked the complainant’s mother if he could lie down.  She told him that he could lie down on a mattress in the complainant’s bedroom.  The complainant was not then in the room.  He went into the room and lay on a mattress on the floor with the door open.  The complainant announced that she was going to bed and went into her room.  The applicant had asked the older sister to make him some tea which she brought into the bedroom.  She saw the applicant lying on the mattress with the complainant next to him and a blanket over them.  She told the complainant that she could go into her bedroom but the applicant said that she could stay with him and keep him warm.  The sister responded that she would speak to the mother and returned to tell the complainant that she could stay if it was “okay” with the applicant.  He asked the sister to turn off the light and close the door which she did.

1. The complainant gave a detailed history of what the applicant then did to her, to a paediatrician at the hospital that night and the following day, to police.  The complainant said that she was on the top bunk in her room when the applicant grabbed her and placed her on the mattress beside him.  He tickled her under her armpits and she told him that it hurt.  She said it hurt because he had sharp nails.[1]  The applicant told her that he liked her, called her “babe” and kissed her on her lips.  The applicant put his hand down her pants and under her underpants.  He put his finger inside her vagina “and it was really really hard”.[2]  She said it hurt.  He grabbed her leg and put his leg over her body and then said, “Don’t tell anyone”[3] and, “Just leave it a secret”.[4] 

   [1]AR 19.

   [2]AR 82.

   [3]AR 82.

   [4]AR 20.

1. The complainant was immediately upset.  The applicant was heard by a witness to call her a “sooky baby”[5] or “sooky la la”.[6]  The sister saw the complainant come out of her bedroom crying and yelling a short time after she had switched off the light and closed the door.  The sister described the complainant as limping, not walking.  The complainant explained what the applicant had done to her.  He came out shortly afterwards and said that he had done nothing.  He left the house with his sister and her partner. 

   [5]AR 64.

   [6]AR 154.

1. The sister took the complainant into the bathroom where she saw that the complainant’s vagina was “really red”.[7]  Police from the Child Protection and Investigation Unit arrived in the course of the evening.  The police officer described the complainant as distressed, upset and shaking.[8]  He noted that she walked with “a bit of a limp”. 

   [7]AR 45.

   [8]AR 93.

1. The complainant was taken to the hospital where she was examined by Dr Harris, a specialist in forensic paediatric medicine.  He said that the complainant was very distressed.  She had been brought into the examination room in a wheelchair because she was having trouble walking.  When she got out of the wheelchair she was crouched over, guarding her groin, “and obviously very distressed and in pain”.[9]  He conducted an examination of the genital area.  He observed a linear abrasion or wound, “a scratch if you like”,[10] 2.5 centimetres in length consistent with recent injury – blood at the base and wet.  The entire entrance of the vagina was “abnormally red”.[11]  The hymen was noted to be very red as well.  When the other doctor present at the examination did a vulval swab it was “exquisitely tender”.[12]  Dr Harris said that such an injury was unusual.  In his 28 years of paediatrics it was only the third case of a similar kind of an obvious physical finding on examination following an alleged assault.  He concluded that quite significant force would be required to cause such an abrasion.  Dr Harris rejected any suggestion that the injury could have been sustained by washing the genital region or otherwise be self-inflicted.  He concluded that the injury was caused by some “traumatic, inflammatory insult on that area”.[13]

   [9]AR 83.

   [10]AR 83.

   [11]AR 84.

   [12]AR 85.

   [13]AR 88.

1. The applicant gave evidence at his trial admitting being in the bedroom lying on the mattress with the complainant with the light off and door shut.  He agreed that he tickled the complainant and that she had complained that it hurt but denied touching her in the area of her genitals.

The sentence submissions below

1. The applicant was 35 years old at the time of the offence and 36 at sentence.  He had a lengthy criminal history covering four pages.  His first recorded matter was dealt with in the Childrens Court in 1991.  He was convicted of stealing with actual violence and other offences in respect of which he was put on a care and control order for 12 months with strict custody for one month and an order for restitution.  That offending was followed quite quickly by convictions for possession of drugs; break, enter and steal; possession of stolen property; and escaping from lawful custody.  In 2001 he was convicted and sentenced to three and a half years imprisonment for doing grievous bodily harm and assault occasioning bodily harm.  He was sentenced for trafficking in a dangerous drug in 2002 and imprisoned for six years and seven months.  He was subsequently dealt with in the Southport Magistrates Court in 2007 for stealing and street offences.  As the applicant pointed out at sentence and in this court, he has no previous convictions for any sexual offending. 

1. A letter from the complainant’s mother was tendered indicating that the complainant would likely need some counselling. 

1. The prosecution submitted for imprisonment in the range of three to four years and referred the primary judge to a number of comparable decisions.  Defence counsel below noted that the applicant was 19 when he was first sentenced to a term of actual imprisonment and, although drugs had featured in his criminal history, he was not a drug user but was selling to support himself.  The applicant had engaged in labouring work in the past but was unemployed at the time of trial.  It seems that the applicant had served almost the whole of his six years and seven months term of imprisonment for drug trafficking because, having been granted parole, he was returned to custody for breach and was unsuccessful in subsequent applications.  Counsel submitted that since his likelihood of being granted parole for the current offending was remote, that factor should be reflected in the sentence.  The final submission was for a sentence of three years.

Sentencing remarks

1. The primary judge noted that the injuries sustained by the child were serious and, notwithstanding that it was a strong prosecution case, the matter went to trial and no remorse was demonstrated.  Her Honour noted the comparable sentences.  She sentenced the applicant to three and a half years imprisonment and, as mentioned, parole eligibility was fixed at halfway on 4 March 2014.

Submissions on appeal

1. The applicant’s submissions refer to a number of comparative sentences which he considered demonstrated that the sentence imposed was manifestly excessive.  He was puzzled about the comparability of a number of cases referred to by the respondent in his written outline.  When it was explained by the court that some were cited for a general principle and not for factual similarity, for example, R v Frame,[14] the applicant accepted their limited relevance.  One, however, Dinsdale v The Queen,[15] cited for the general principle that in the absence of identifiable error an applicant is required to demonstrate that a sentence is “unreasonable or plainly unjust”,[16] is comparable and needs to be further considered.

   [14][2009] QCA 9.

   [15][2000] HCA 54; (2000) 202 CLR 321.

   [16]At 325 per Gleeson CJ and Hayne J.

1. In Dinsdale the offender was convicted after a trial of one count of sexual penetration of a nine year old female child and one count of indecent dealing with that child.  The acts occurred on consecutive days and at the same place.  The offender was sentenced to concurrent terms of imprisonment of 18 months wholly suspended.  The prosecution appealed against the inadequacy of the sentence which was varied to one of 30 months imprisonment.  The High Court was concerned, as a matter of principle, with the duty of the Court of Criminal Appeal to identify error by a sentencing judge before exercising its power to increase a sentence.  However, it is only the actual sentence imposed for the offending that the applicant raises here. 

1. The complainant child was a friend of the offender’s daughter and staying overnight at the offender’s home.  Whilst they were all watching television, the offender pulled up her skirt, moved her underpants and inserted his thumb into her vagina.  He asked her if she liked it and when she said she did not he stopped and walked away.  The following afternoon, when the girls were in his bedroom, he offered to massage them and moved the complainant’s underpants to one side and looked closely at her vagina.  The offender was a hardworking family man with children of 12, 10 and 8 years, who ran a small business and who had one prior offence, many years previously, of a non-sexual character.  A number of good character references were tendered and the offender’s wife asked the court to note that the whole family would suffer. 

1. The sentencing judge observed that the offending was objectively serious; that the offender had breached a position of trust since he was looking after the complainant; that he had exhibited no remorse; and that the complainant had been affected by the offending.  He was persuaded that there were good prospects of rehabilitation; the offending had taken place three years previously and there had been no re-offending of any kind in the interim.  The High Court described the sentence imposed as “undoubtedly merciful”[17] noting that ordinarily conduct of that kind would merit immediate imprisonment for a significant period but it was not an invariable rule.

   [17]At 328 per Gaudron and Gummow JJ.

1. The applicant here has noted that he was not in a position of trust and, since he has been incarcerated, he has indicated his willingness to participate in various relevant courses within the corrections system.

1. The applicant also referred to R v NH.[18]  In that appeal the court, having allowed a conviction appeal on one of four rape charges, needed to resentence the offender for lesser indecent treatment offences.  He was a friend of the parents of the eight year old complainant and had been assisting the family because the father was in prison.  The offences happened over a three week period.  On the first occasion the offender put his hands under the complainant’s clothes and touched her in the genital area.  The second offending occurred when she was alone with him in the rear of a vehicle.  He pulled her pants down and touched her vulval area.  Some days later, the complainant washed her hands after using the toilet, and encountered the offender, who opened her pants and touched her vulva.  Later, he brought her inside, pulled her pants down and touched her genital area “in such a way as to make it hurt”.[19]  He told her not to tell her mother or he would tell others that her father was in prison.  The paediatrician called at the trial described observing scarring on the hymen and the posterior fourchette consistent with trauma associated with digital penetration which was likely to have caused pain. 

   [18][2006] QCA 476.

   [19]At [4].

1. The offender was 51, married, with three children.  His wife had a serious illness.  He had higher educational qualifications, no previous convictions, and a number of good character references were tendered.  After considering a number of comparable sentences the court concluded, having regard to a number of factors – that the complainant was eight; that he was in a position of trust, although not charged as a circumstance of aggravation; that he had threatened to tell others about the child’s father’s imprisonment; and that the offending had occurred on three different occasions – that “a significant sentence was warranted”.[20]  Powerful mitigating factors were identified – the offender’s previous good character and exemplary working history.  The court, approaching the matter on a global basis, sentenced the offender to two and a half years imprisonment on each count.

   [20]At [13].

1. The applicant has noted that in NH there were three charges on different days and that the offender, unlike his situation, was in a position of trust.  Of that latter submission it may be commented that, whilst not a position of trust in as much as the complainant was not entrusted to his care, he had been given hospitality in the home and was trusted not to abuse that hospitality when he was permitted to lie down with the child in her bedroom.

1. Mr Moynihan SC referred to R v AAD[21] where a 32 year old offender had been sentenced to imprisonment for five years for the digital rape of a six year old girl.  In the course of indecent conduct, which was uncharged, the offender inserted his finger into the complainant’s vagina.  The offender had a serious criminal history which included convictions for indecent assault and rape.  Whilst on bail in respect of the rape charge he had stabbed his de facto wife and was sentenced to a term of imprisonment cumulative on the sentence of eight years for the rape.  Muir JA, with whom the Chief Justice and Fraser JA agreed, considered R v NH,[22] already discussed, and R v SAH.[23]In the latter case a sentence of five years imprisonment with a recommendation for post-prison based community release after 18 months was imposed after a plea of guilty to the digital penetration of the anus of a three year old boy by the 19 year old offender.  On appeal, that sentence was reduced to three years suspended after 12 months because of the relative youthfulness of the offender, his limited prior criminal history (which did not include sexual offences), his early plea and his own childhood experience of sexual abuse.  The other authorities referred to by his Honour are not of any assistance on the present facts. 

   [21][2008] QCA 4.

   [22][2006] QCA 476.

   [23][2004] QCA 329.

1. In AAD the offending concerned one incident only, but the complainant was noted to be very young and the offender was in something of a position of trust.  Mitigating factors were his plea of guilty and that he himself had experienced sexual molestation in his youth.  Notwithstanding the offender’s serious criminal history (including sexual offending) the sentence was held to be manifestly excessive and the five year term of imprisonment was reduced to four years.

Discussion

1. The applicant contends that his previous convictions are not relevant because they include no previous sexual offending.  As the High Court observed in Veen v The Queen [No 2],[24] the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed.  It is that fact which distinguishes the applicant’s situation from the offender in NH who had no previous convictions as well as a good work history.  In Dinsdale the offender was virtually without convictions[25] and had a good work history also.  Dinsdale was a prosecution appeal and, although considered a light sentence, no error was identified to justify any increase in the sentence. 

   [24](1998) 164 CLR 465 at 477.

   [25]One old, irrelevant conviction only.

1. AAD has some similarity to the present facts but that offender pleaded guilty.  His more serious criminal history is reflected in a higher sentence than this applicant despite his plea.  Here there was no demonstrated remorse by the applicant at sentence; the sentence imposed was in the middle of the range sought by the prosecutor and only six months more than the three years sought on behalf of the applicant by his counsel.  The nature of the injury to the complainant observed by the paediatrician and the distress it caused her suggested that this was no “mere” digital penetration but a severe assault.  The sentence imposed was not manifestly excessive.

1. In his submissions the applicant refers to his fragile mental health status and his need for better treatment for his high anxiety and depression.  That is a matter for the management of the corrections facility, not for this court.  In a particular case a prisoner may apply for an exceptional circumstances parole order.[26]

   [26]Corrective Services Act 2006, ss 176 and 194.

1. I would refuse the application for leave to appeal against sentence.

1. APPLEGARTH J:  I agree with the reasons of White JA and with the order proposed by her Honour.