R v MBF

[2008] QCA 61

SUPREME COURT OF QUEENSLAND

CITATION:

R v MBF [2008] QCA 61

PARTIES:

R
v
MBF
(applicant)

FILE NO/S:

CA No 329 of 2007
DC No 346 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

26 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

26 March 2008

JUDGES:

Holmes and Fraser JJA and Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application for extension of time within which to apply 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 pleaded guilty to one count of rape and one count of indecent treatment of a child under the age of 16 years – where complainant was applicant’s niece – where offender was an isolated instance while the applicant was affected by alcohol and cannabis sativa – where applicant had no relevant criminal history – where for the most serious conviction (the rape conviction), the applicant was sentenced to three years imprisonment suspended after 12 months – whether in the circumstances the sentence was manifestly excessive

R v M[2003] QCA 443, considered
R v NH [2006] QCA 476, considered
R v SAH [2004] QCA 329, considered

COUNSEL:

The applicant appeared on his own behalf
D A Holiday for the respondent

SOLICITORS:

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

HOLMES JA:  I will ask Justice Fraser to give his reasons first.
FRASER JA:  The applicant was convicted on his plea of guilty to one offence of rape on 18 September 2004 and one offence of indecent treatment of a child under the age of 16 on the same date.  He was sentenced in the District Court on 28 August 2007 to three years' imprisonment for the first offence and 12 months' imprisonment for the second offence, the terms of imprisonment to be served concurrently and suspended after 12 months for an operational period of three years.

The applicant has applied for leave to appeal against the sentence.  That application was filed on 4 December 2007 about two months out of time.  The applicant has therefore also applied for an extension of time.

The grounds of the applicant's application for an extension of time are that his lawyer did not tell him of the time limit for applications and that he did not receive a letter from his solicitor after his sentencing.  It is doubtful whether that is an adequate explanation of the applicant's delay in applying for leave to appeal against sentence.  I would not be prepared to assume that the applicant did not appreciate or that he should not have appreciated that there was a time limit for appealing against sentence.  Nevertheless, as the delay is relatively short and an extension involves no particular prejudice to the respondent I would be prepared to grant the necessary extension of time if it were justified by the merits of the application for leave to appeal, the ultimate question being whether it is in the interests of justice to grant the extension.  See R v Tait [1999] 2 Qd R 667 at 668.

The first ground of the proposed application for leave to appeal against sentence is that the sentence is manifestly excessive.  The application also contends that the applicant did not know that he could have pleaded for a shorter sentence, that he had not been to gaol for 12 years and that his son has been subjected to bullying at school as a result of the applicant's imprisonment.

These additional grounds may be put to one side immediately.  Submissions were made on the applicant's behalf to the learned sentencing judge.  The learned sentencing judge was apprised of the applicant's criminal history and the inevitable adverse consequences to the applicant's son of his offending, unfortunate as they are, have no substantial bearing on the appropriateness of the sentence.  The only real question raised by the application is whether the sentence is manifestly excessive.

The circumstances of the offence are briefly described in the sentencing remarks of the learned sentencing judge.  The complainant was the applicant's niece who was 13 years of age at the time of the offences.  The applicant was then 28 years old.  The offences involved digital penetration and touching the complainant on her breasts despite her asking the applicant to stop.  As the learned sentencing judge pointed out, the applicant, being the complainant's uncle, was in a position of trust and the offences were brazen, occurring at a time when the applicant and others, including the complainant, were sleeping over at a friend's place.

The following more detailed description of the offences is given in the respondent's outline of submissions. 

The offences occurred on an occasion when the complainant, her family and the applicant were staying overnight at a friend's house following a barbecue.  The complainant went to sleep on the top bunk of a bed in one of the bedrooms.  She woke to find the applicant sitting on her bed having a cigarette.  The complainant asked the applicant if he was going to sleep with her in that bed and the applicant responded, "That would be your first time, wouldn't it?"  The complainant, thinking that the applicant meant the first time that she had shared a bed with him, responded, "Yeah," and went back to sleep.  When the complainant next awoke the applicant was lying next to her in the bed.  The applicant's hand was in the complainant's pyjama pants and he was digitally penetrating her.  The applicant also touched the complainant on the breast area first on top of her clothes and then underneath.  The applicant told the complainant that she could stop if she felt uncomfortable.  The complainant repeatedly told the applicant to stop but he continued.  The complainant started to cry.  The applicant said, "Don't cry, I don't want you to feel uncomfortable around me." 

The complainant got up and went to the toilet.  Shortly after the complainant returned to the room and went back to bed.  The applicant was still on the bed and the complainant lay in the opposite direction to the applicant.

It was said on behalf of the applicant that he had no recollection of the events as a result of being intoxicated by alcohol and cannabis sativa.

The complainant, being a child and not able to talk about what had happened freely, did not say anything about the offences until some two years later.  A victim impact statement made on the complainant's behalf by her mother indicated, as the learned sentencing judge observed, that the complainant and her family had been significantly affected by the offending, particularly because the applicant was a member of the complainant's extended family.

In favour of the applicant the learned sentencing judge accepted that there was no violence involved, that the offences were out of character for the applicant, and that there was an early plea of guilty.  The learned sentencing judge referred also to the applicant's good employment history and his remorse for his offences.

The maximum penalty for the offence of rape is life imprisonment and that for indecent treatment of a child under 16 is 14 years' imprisonment.

In R v SAH [2004] QCA 329, this Court imposed a sentence on appeal of three years' imprisonment suspended after 12 months with an operational period of three years, that is to say, the same sentence that was imposed by the learned sentencing judge here.

In SAH the applicant had raped a three-year old boy by inserting a finger or fingers into his anus.  The boy's mother was the applicant's partner and the applicant had been caring for the boy whilst she was in hospital.  The applicant was 19 years old at the time and had a significant criminal history for assault and property offences but no history of sexual offences.  He was on probation when he committed the offence.  He was sentenced on the basis that he had been sexually abused himself as a child.

There are similarities between this case and SAH in that each involved a breach of trust and an offence of digital penetration of a child.  The difference in criminal histories between that case and this does not seem very significant.  Here the applicant did have a prior criminal history largely involving drug offences.  In R v SAH the applicant had a "not insignificant" prior criminal history also not involving sexual offences.

Against the applicant here are the facts that SAH was younger than this applicant and he was sentenced on the basis that he had himself been sexually abused as a child.  On the other hand the child was very much younger in R v SAH.

Taking these similarities and differences into account R v SAH supports the view that the sentence in this case was not manifestly excessive. It is to be noted in that respect that Williams JA observed at 14 that:

"A single offence of the type in question where a youthful offender who allegedly had himself been sexually abused as a child was involved would call for a head sentence of three years' imprisonment."

In R v M [2003] QCA 443 this Court dismissed an appeal against a sentence of three years' imprisonment for offences of rape and indecent treatment of a child under 12 who was a lineal descendant. The offences there were more serious than those here. The complainant's father had put his penis into the child's mouth and had indecently dealt with him by rubbing his penis and ejaculate on the complainant's back.

Those offences were, as the President observed, a serious breach of a father's trust with potentially devastating consequences for both his six year old son and the boy's mother.  They also involved some physical force although not physical injury.

The applicant there had no prior convictions but was a mature man who showed no remorse and did not have the mitigating benefit of an early plea of guilty which is here available to this applicant.

The same head sentence was imposed in this matter for less serious offences and where the mitigating circumstances of the offender are more compelling.  Nevertheless, R v M does not support the view that this sentence was manifestly excessive, both because the only issue for the Court in that case was whether or not the sentence was manifestly excessive and because the President described the sentence as being "lenient".

In R v NH [2006] QCA 476, following a successful appeal against conviction on one count, this Court imposed sentences of two and a half years' imprisonment for one count of rape and three counts of indecent treatment of a child under the age of 16.

The complainant there was younger than in this case, she was eight years old.  The applicant was a friend of the complainant's parents and had been providing assistance to the family whilst the complainant's father was in prison.  The offences occurred over a three week period.

On three occasions the applicant touched the complainant child under her clothes, on her vulval area, and on the fourth occasion he digitally penetrated her, the rape offence.

On that day on which he also assaulted the complainant by touching her vulva the applicant said to her that she was not to tell her mother or he would tell everyone that the complainant's father was in prison. 

The offences there were relatively more serious in that the complainant was eight years old and there was evidence of scarring consistent with the digital penetration which was likely to have caused associated pain to the child.  Those offences also took place over a period whereas the offence here was an isolated incident. 

It is, however, significant that in this case the complainant was the applicant's niece and that he persisted in his offence despite being repeatedly asked by the complainant to stop.  Furthermore, in NH, the applicant's personal circumstances were more compelling.  He had no previous convictions at all, a number of references were tendered on his behalf, his wife had a bone marrow disorder, and the learned sentencing judge expressly took into account in the applicant's favour his good work history, and history of community service.

In my view, NH cannot be regarded as supporting the proposition that the sentence in this case was beyond the range of available sentences.

It is necessary to bear steadily in mind that in the absence of error in the sentencing process this Court will only adjust a sentence on the ground that it is "manifestly excessive" where the sentence is so "unreasonable or plainly unjust" so as to give rise to an inference that the sentencing discretion miscarried.  House v The King (1936) 55 CLR 499 at 504-505.

In my opinion, the sentence in this case cannot be so characterised.  That being so, and given the inadequacy of the explanation for the delay in applying for leave to appeal, I would refuse the application for an extension of time.

I would therefore refuse the application for extension of time within which to apply for leave to appeal against sentence.

HOLMES JA:  I agree with what Justice Fraser has said and the order he proposes.

Given the applicant's lack of relevant previous convictions and the fact that the offences involved a single incident, the head sentence of three years' imprisonment seems relatively severe, but it is not so clearly out of range that I am convinced that the proposed application has real prospects of success.

CHESTERMAN J:  I agree with what Justice Fraser has said and with the comments made by Justice Holmes.

HOLMES JA:  The order will be as indicated by Justice Fraser.

‑‑‑‑‑