R v PAA

[2006] QCA 56

SUPREME COURT OF QUEENSLAND

CITATION:

R v PAA [2006] QCA 56

PARTIES:

R
v
PAA

(applicant/appellant)

FILE NO/S:

CA No 348 of 2005

DC No 379 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED EX TEMPORE ON:

8 March 2006

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2006

JUDGES:

McMurdo P, Jerrard JA and Holmes J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal against sentence is allowed  
    to the extent of setting aside the recommendation for post-
    prison community based release

2. Applicant's sentences of imprisonment are suspended
    forthwith for an operational period of four years

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – applicant convicted of four counts of indecent treatment of a child under 16, three counts of rape and one count of indecent treatment of a child under 12 – applicant sentenced to four years imprisonment with a recommendation for post-prison community based release after 18 months – where 405 days imprisonment was declared time already served under that sentence – whether sentence was manifestly excessive - whether sentencing judge failed to take applicant's mitigating circumstances into account when making recommendation for parole

R v C; ex parte Attorney-General [2003] QCA 510; CA No 328 of 2003, 13 November 2003, considered
R v M [2003] QCA 443; CA No 114 of 2003, 17 October 2003, cited

R v SAH [2004] QCA 329; CA No 184 of 2004, 10 September 2004, considered

COUNSEL:

The applicant appeared on his own behalf

C W Heaton for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

1. JERRARD JA: On 28 November 2005 the applicant, PAA, pleaded guilty to charges alleging that he had committed sexual offences against three of his grandchildren. By his plea of guilty to count 1 he admitted unlawfully and indecently dealing with one of his granddaughters, whom I shall refer to as "S", who was then a child under 12 and, to the applicant's knowledge, his lineal descendant. On count 2 he admitted by his plea committing a similar offence upon his grandson, to whom I will refer by the letter "J". By his pleas to counts 3 and 4 he admitted committing like offences on a granddaughter to whom I shall refer as "A”.  "A" was also in the applicant's care at the time those offences were committed. By his pleas of guilty to counts 5, 6 and 7 the applicant admitted digitally raping "A", and by his plea to count 8 a second offence committed on his grandson "J" when that boy was then a child under sixteen (and the applicant's lineal descendant). The applicant was sentenced to terms of imprisonment totalling four years with a recommendation for post prison community based release after eighteen months.  Four hundred and five days imprisonment from 19 October 2004 to 28 November 2005 was declared time already served under the sentence. The applicant has applied for leave to appeal that sentence and has argued that the learned Judge failed to take into account his age, his plea of guilty and other mitigating factors. In saying that, I am referring to the notice of appeal or application for leave to appeal and not to what has been said in this Court.  In this Court all that the elderly applicant said was, and I quote, "I'm sorry".  It is apparent that he has hearing difficulties.

1. The applicant is a New Zealand resident, born on 23 May 1928 in that country, who was visiting relatives in Australia when he committed the offences that he has admitted.  He was seventy-seven years old when sentenced, and his barrister then told the learned sentencing Judge that the applicant was in reasonably good health for his age.  A letter tendered on his behalf from one of his daughters - not one whose child was abused - said that the applicant was becoming mentally confused. He had left school at fifteen and had been in employment until retiring at age sixty, working in timber mills mostly in the South Island of New Zealand.  His work record was described as excellent, and his barrister submitted that his early pleas of guilty were attended with actual remorse. 

Counts 1 and 2

1. Counts 1 and 2, the offence against "S" and the first of the offences against "J", were committed on dates unknown between 3 July 2002 and 10 January 2003.  The applicant was visiting a residence in a Brisbane suburb, and both offences appear to have been committed during the period of the one visit although this is not clear. The offence against the child "S" consisted of the applicant stroking that child's legs, chest and groin while she was in bed, and the child's mother awoke to see the applicant with his hands on that child's body.  She was either seven or eight years old at that time.

1. A similar sort of offence was committed against the boy "J", who was then aged ten or eleven.  He was awoken by his grandfather coming into the room where "J" was sleeping and lying down next to that boy, putting his hand inside the boy's pyjamas, and rubbing the boy on the bottom.  The applicant then undressed himself and lay directly on top of the boy, who was lying on his stomach, and the applicant began moving his body on top of the boy's.  Fortunately, he was disturbed by another family member who happened to be awake at the time.

   
   Counts 3-8

2. In respect of counts 3 to 8 inclusive, all of those counts were committed on 18 October 2004 at another residential address in Brisbane.  On that occasion it appears that the applicant was on another visit to this country from New Zealand.  Five of those offences were committed on the child "A" who was then only six years old, and the last offence consisted of the applicant exposing the boy "J", who was by then thirteen years of age, to the sight of the applicant preparing to have sexual intercourse with the six year old "A".

   
   
   

3. Those six offences were committed when "A" and her elder sister had visited the house where the applicant was then staying, and when the children were left in the applicant's care for part of the day.  What occurred was that while the other children were watching a video, the applicant was in a different room with "A" and seated on a couch. 

1. Count 3 was committed when the applicant began to fondle "A", rubbing her on her groin.  He became aroused, and count 4 was committed when he asked for that child to fondle his penis.  He pulled his pants down and procured her to pull out his penis, which became erect and he continued to fondle and kiss the child while she did as he had asked.

1. Count 5 was committed when he then removed that child's underwear and inserted his finger some way into her vagina.  He later told police officers, who questioned him, that he was able to insert it a small way.  He then got off the couch to check on the whereabouts of "J" because the applicant did not want to be caught fondling "A".  He then returned to where the female child was. 

1. Count 6 was committed when he again inserted a finger into "A"'s vagina, once again - according to what he told the police - only a small way.  He then went to a bathroom where he placed a small amount of shampoo onto the palm of his hand and returned to where "A" was sleeping on the couch. He committed count 7 when he rubbed the shampoo onto the child's vulva and inside her vaginal entrance, once again inserting his finger in the hope that the shampoo would lubricate her sufficiently to permit further penetration. Count 8 was committed when the boy "J" entered the room to find his sister sitting on top of the applicant wearing only her underwear and the boy "J" immediately removed the child "A" from the applicant's body.  The boy then remonstrated with the applicant for what he had done with "A". 

[10]The next day the child "A"'s mother took her to a doctor, who observed abrasions to the inside of the child's vagina and the child was then spoken to by police officers at the Logan Central Juvenile Aid Bureau.  Police questioned the applicant himself later that same day, and he admitted that he had intended to have penile intercourse with the child "A" and had obtained the shampoo to lubricate the child's vagina for that purpose.  He also said that he was attracted to both male and female children, although he was aware that his actions were wrong. Other investigations by the police then identified the earlier commission of counts 1 and 2 by the applicant. 

[11]The applicant was held in custody from that date onwards, and that long period of incarceration was declared to be time already served under the sentence. The applicant's barrister submitted to the learned sentencing Judge that the earlier decisions of this Court in R v SAH [2004] QCA 329; CA No 184 of 2004, 10 September 2004 and R v M [2003] QCA 443; CA No 114 of 2003, 17 October 2003 suggested that a sentence of three and a half years was the upper end of the appropriate head sentence, and that the sentence should be suspended after one third of it had been served, to take into account this applicant's co-operation, pleas of guilty, remorse, and age.

[12]In R v SAH that applicant had pleaded guilty to one offence of digital penetration of the anus of a three year old child who was then in the offender's care, causing the child considerable pain.  That offender was aged only nineteen years but had a recent history of dishonesty and of the commission of a number of assaults on various people.  He had no prior convictions for sex offences.  This Court reduced his sentence on appeal to one of three years imprisonment, suspended after one year. In R v C; ex parte Attorney-General [2003] QCA 510; CA No 328 of 2003, 13 November 2003 that offender was a parish priest who had interfered with a large number of children aged between four and twelve years over a long period of time, and some of his conduct included digital penetration of at least one child's vagina. This Court dismissed an appeal by the Attorney-General against sentences of three and a half years imprisonment suspended after fourteen months. That offender had committed thirty-four counts in all.

[13]The learned sentencing Judge who imposed sentence on this applicant correctly described this applicant's behaviour as “abhorrent to any civilised society” and as “deserv[ing]… condemnation”, particularly because the offences committed on "A" were done when she was in his care.  The learned Judge expressly declared that the Judge took into account the plea of guilty, the applicant's co-operation, the fact that none of the children were required to give evidence in any proceeding, the applicant's age, and his expressed feelings of remorse. The Judge then imposed the sentences under appeal, which have the effect that the applicant became eligible for post prison community based release after eighteen months of actual custody.  Since his offending took place over a two year period, and involved the opportunistic exploitation of his physical access to three different grandchildren, with the six year old female child only just being saved from the consequences of his hastily made preparation to rape her, the head sentence of four years was not manifestly excessive.

[14]The recommendation for parole after eighteen months only reduces the minimum non-release time by twenty-five per cent, since the automatically occurring parole eligibility date would be after twenty-four months.  In light of the early notification of pleas of guilty, the applicant's expressed remorse, his age of almost seventy-eight, the absence of any prior convictions at all, his excellent work record, and the fact that he will serve his prison sentence in a country different from his country of origin to which he will be deported immediately upon his release, or so the sentencing Judge was told, I consider that the learned sentencing Judge erred in not reducing the minimum non-release period by a greater degree than twenty-five per cent. A reduction of up to one-third is common enough in the sentencing practices of the criminal courts of this State, and there are matters in mitigation in this applicant's case already referred to which warrant a greater reduction than one-third.  I also consider that this applicant should be given a specified release date rather than one dependent upon a decision of the Community Corrections Board.

[15]Accordingly, I would allow the appeal to the extent of setting aside the recommendation for post prison community based release and ordering instead that all sentences of imprisonment imposed on the applicant be suspended forthwith plus an operational period of three years during which the applicant must not commit another offence punishable by imprisonment if he is to avoid being dealt with under section 146 of the Penalties and Sentences Act 1992 (Qld) for the suspended sentence.

[16]THE PRESIDENT:  I agree.

[17]HOLMES J:  I agree.

[18]THE PRESIDENT:  That is the order of the Court.

...

[19]JERRARD JA:  Yes, I see.  Yes.  Subsection 144(6)(a): 

"It must be not less than the term of imprisonment imposed."

In that case I would recommend that the operational period be four years.

...

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