R v PM

[2004] QCA 163

SUPREME COURT OF QUEENSLAND

CITATION:	R v PM [2004] QCA 163
PARTIES:	R v PM (applicant)
FILE NO/S:	CA No 101 of 2004 DC No 551 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	14 May 2004
DELIVERED AT:	Brisbane
HEARING DATE:	14 May 2004
JUDGES:	Williams JA and Muir and Mullins JJ 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 – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where applicant convicted of two counts of indecent treatment – where sentenced to 12 months imprisonment suspended after four months with an operational period of three years – where offences occurred between 1974 and 1978 – where applicant aged between 18 and 22 years when offences committed – where applicant has served a period of imprisonment for similar offences committed after the ones in question – whether learned sentencing judge placed insufficient weight on mitigating factors and the age of the offence – whether sentence imposed manifestly excessive
COUNSEL:	P J Goodwin for the applicant R G Martin for the respondent
SOLICITORS:	Harris Sushames for the applicant Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA:  After a trial, the applicant was convicted of two counts of indecently treating a girl on dates unknown, between January 1974 and December 1978.  He was convicted and sentenced on 18 March 2004.  The sentence imposed was 12 months' imprisonment, suspended after four months, with an operational period of three years.

The grounds of appeal are that the sentence was manifestly excessive and the learned sentencing Judge placed insufficient weight on the age of the offence.

The complainant, who was the sister of the applicant, was aged between 7 and 11 when the offences occurred.  The applicant, who was born on 18 February 1956, was aged between 18 and 22 when the offences occurred.

When the first offence occurred, the complainant was sharing a room with her sister, who was a year younger than the complainant.  The applicant came into the room one night and took both girls into the lounge room.

He took their pyjama pants off and touched their vaginas on the outside.  He penetrated the complainant's vagina, then took the complainant's hand and put it on his penis.

The applicant made the complainant masturbate him.  He then had the two girls perform sexual acts on each other and masturbated himself to ejaculation whilst that was occurring.
He then took the girls back to their room.

The incident occurred before the complainant attained menarche.  The second offence occurred on a later occasion, when only the complainant and the applicant were involved.

After the applicant came home from school, the applicant said to her that he wanted to play with her again.  He took her pants off and played with her vagina, inserting his fingers.  He performed oral sex on her and made her put her mouth on his penis.  Ejaculation occurred.

It is not entirely clear when the offences came to light, but one can assume it was not long before the proceedings.  At the time the offences were committed, the applicant had a criminal history, involving primarily minor offences of dishonesty.

Subsequently, in 1980 and 1993, he was convicted of minor drug offences and then in May 1999, he was sentenced to imprisonment for 15 months, with a recommendation that he be eligible for parole, after serving three months, with respect to four charges of indecently dealing with a child under the age of 16 years, with a circumstance of aggravation.  The complainant in that case was in fact the applicant's daughter and the relevant events had occurred in 1995.

It appears that the applicant served seven months' imprisonment, pursuant to that sentence and during that time, completed the sexual offender courses.

The learned sentencing Judge observed that the applicant used his authority as the complainant's older brother, to "coerce her into permitting you to sexually abuse her".  He also observed that the applicant had "shown no remorse for your involvement in these offences".

The complainant was cross-examined both at committal and at trial.  The learned sentencing Judge went on to note that as a result of the offences "the complainant has suffered obvious psychological problems".  That was apparent from the manner in which she gave evidence at the trial.

Referring to the conviction in 1999 for the offence involving his daughter, the learned sentencing Judge said:

"The relevance of your criminal history is that it shows
that you have not rehabilitated yourself in the sense that you have desisted from offending since these offences were committed. 

Despite the fact that these offences occurred many years ago, general deterrence is still a factor that should be taken into account when sentencing for this type of sexual abuse."

The learned sentencing Judge also observed that the most significant mitigating factor in the applicant's favour was that he was aged between 18 and 22 years when the offences were committed.  The principal submissions by counsel for the applicant were:

1.The learned sentencing Judge placed too much emphasis on the proposition that the applicant had not rehabilitated himself;

2.The learned sentencing Judge did not give appropriate weight to the delay between when the offence occurred and the prosecution took place.

It was asserted in written outline, that the learned sentencing Judge:

"completely ignored the delay from when the offences

occurred to when the matter was prosecuted."

The reading of the sentencing remarks does not support the second of those contentions.  The learned sentencing Judge expressly recognised that the "offences occurred many years ago", but nevertheless, in his view, the serious nature of the offences and the consideration of general deterrence called for the imposition of a custodial sentence.

I am not persuaded that the learned sentencing Judge misdirected himself on the issue of rehabilitation.  The quoted passage in which rehabilitation was dealt with, says no more than that the events in 1995 giving rise to the 1999 conviction, prevent the applicant from submitting that the offences in question, were committed when he was relatively young and that the intervening period of time demonstrates a total or substantial rehabilitation.

The sentence imposed was clearly within range for offences of the type in question, particularly given that penetration and ejaculation occurred on each occasion and the relative ages of the complainant and the applicant.

It cannot be said that the learned sentencing Judge failed to take into account any factors operating in mitigation of the sentence.  As he said, the most significant consideration was the youth of the applicant at the material time.

Whilst the fact that the applicant has completed the sexual offences courses as part of the sentence imposed in 1999 is a relevant factor to be taken into account in determining the appropriate sentence here, it cannot be said that in all the circumstances the sentence in fact imposed was manifestly excessive.

It follows, in my view, that the application for leave to appeal against sentence should be refused.

MUIR J:  I agree.

MULLINS J:  I agree.

WILLIAMS JA:  The order of the Court will be that the application for leave to appeal against sentence is refused.