R v Ryan

[1995] QCA 555

IN THE COURT OF APPEAL	[1995] QCA 555
SUPREME COURT OF QUEENSLAND

C.A. No. 356 of 1995

C.A. No. 368 of 1995

Brisbane

[R. v. Ryan]

THE QUEEN

v.

DAVID RALPH RYAN

(Applicant) Appellant

Fitzgerald P.
Davies J.A.

McPherson J.A.

Judgment delivered 12/12/1995
Joint reasons for judgment of Fitzgerald P. and Davies J.A.; McPherson J.A. agreeing.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. THE APPEAL AGAINST SENTENCE IS ALLOWED. THE SENTENCES IMPOSED BELOW ARE SET ASIDE AND IN LIEU THEREOF, A PERIOD OF EIGHT YEARS IMPRISONMENT IS IMPOSED FOR THE OFFENCE OF MAINTAINING A SEXUAL RELATIONSHIP AND A PERIOD OF FOUR YEARS IMPRISONMENT IS IMPOSED FOR EACH OF THE OTHER OFFENCES.

CATCHWORDS:	CRIMINAL LAW - MAINTAINING A SEXUAL RELATIONSHIP WITH A CHILD UNDER THE AGE OF 16 YEARS WITH A CIRCUMSTANCE OF AGGRAVATION - Conviction - whether medical evidence inconsistent with complainant's evidence; whether inconsistency between Crown witnesses; whether inconsistencies substantial.
SENTENCE - whether manifestly excessive.
Counsel:	Mr. M. J. Griffin for the applicant/appellant Mr. M. Byrne Q.C. for the respondent
Solicitors:	P. S. Russo & Associates for the applicant/appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	5 December 1995

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND DAVIES J.A.

Judgment delivered the 12th day of December 1995

The appellant was convicted after a trial in the District Court on 11 August this year of four offences. The first was of maintaining a sexual relationship with a child under the age of 16 years. Because the indictment also alleged that, in the course of that relationship he indecently dealt with the complainant who was then under 12 years of age and that the complainant was in his care the maximum sentence for that offence was 14 years imprisonment. The other three offences of which he was convicted were each offences of indecent dealing with those circumstances of aggravation. It was alleged that all offences were committed between 1 February 1992 and 11 September 1993. The appellant was sentenced to ten years imprisonment on the first offence and six years on each of the others. He appeals against his conviction and seeks leave to appeal against his sentences.

The complainant, who suffered from cerebral palsy was born on 13 November 1982 and was therefore between nine and ten when it was alleged that these offences were committed. The applicant was a taxi driver who was engaged on a regular basis, pursuant to a contract between the Education Department and a taxi company, to take the complainant to and from school each day. This involved carrying or assisting her to and from the taxi and placing her wheelchair in and removing it from the taxi.

The complainant gave evidence that, on "hundreds of occasions" over this period, the applicant indecently dealt with her by touching and rubbing her breasts, rubbing the inside of her leg and vagina and inserting a finger a short distance into her vagina; and that he also forced her to touch his penis and ejaculated in front of her. On more than one occasion, she said, he threatened to kill her if she revealed his conduct.

There were three grounds of the appeal against the conviction. The first was that the verdict of the jury was unsafe, unreasonable, unsatisfactory and against the weight of evidence. The second was that the summing up was unbalanced in favour of the Crown and unfair to the accused. And the third was that the learned trial Judge ruled that there was evidence capable of corroborating the evidence of the complainant when there was no such evidence. Mr. Griffin, who appeared for the appellant, conceded that none of these grounds was arguable. That concession was, in our view, quite properly made. However Mr. Griffin put before this Court a document headed "Reasons for Appeal" prepared by the appellant. It sets out the contentions which the appellant wished to make. Those contentions may be summarily disposed of.

The first was that the appellant had been found guilty of maintaining a sexual relationship with a girl who had been medically examined and found to be a virgin with no evidence of any tissue damage to either vaginal walls or hymenal rim. This referred to the fact that the complainant gave evidence of digital penetration of her vagina whilst Dr. Crawford's evidence was that there was no such damage. However Dr. Crawford gave evidence that there could have been digital penetration without observable damage. The medical evidence was therefore not inconsistent with the complainant's evidence.

The second and third of the appellant's contentions alleged inconsistency between Crown witnesses. The second asserted that the complainant alleged he first touched her on a morning in 1992 on the way to the house of a boy called N to pick him up and take him to school, whereas his father testified that he did not go to school in a taxi in the mornings of 1992. That is correct and there was therefore an arguable inconsistency in the Crown case. Another view was that the complainant was simply a couple of months out in her recollection of events. In any event these matters were adequately dealt with by the learned trial Judge in his summing up.

The third contention also relied on the evidence of the boy's father to the effect that every morning in 1993, when the appellant did take N to school he was coming from the Capalaba end of his street when picking up, not the Cleveland/Thornlands end, which would have occurred had he picked up the complainant first. The complainant, her mother, and grandfather all said that he picked up the complainant first three mornings a week. From work schedules available, the appellant contended, this was impossible. This contention also raised an inconsistency in the Crown case but again this was adequately dealt with in the learned trial Judge's summing up.

Neither the inconsistency referred to in the third contention nor the apparent inconsistency dealt with in the appellant's second contention were with respect to any matters of substance.

The fourth contention was that the complainant's grandfather D was allowed to appear as a witness despite having sat in the public gallery for almost the whole period prior to being called. That contention is plainly untrue.

It is convenient to take the fifth, sixth and seventh contentions together. The fifth was that the complainant alleged that the appellant took her to a house twice where, firstly, one other man and secondly, seven other men, were present; and that neither the house nor the men or anything related to this house were located. The sixth contention was that the complainant alleged that he took video films of her and instructed another man to rape her; and that there is no medical evidence that a rape took place, nor can the man be found, if he was ever looked for; that there was no video camera or film produced, in fact nothing to support this allegation at all. The seventh contention was that the later allegations concerning the house and a gun the appellant was alleged to have had appeared many months after the original allegations and the committal hearing; and that no gun was ever found and, in fact, the complainant could not say whether it was a rifle or a pistol, only that it was black. It was hard to believe, according to the appellant that in these days of TV someone with such a "good memory" could not identify these.

All of these related to the peripheral issues not to the three substantive counts. They did go to credibility but adequate directions were given with respect to them and the complainant was tested in cross examination.

Finally the eighth contention was that the complainant admitted that she had threatened to get the appellant after an incident in September 1993. This is correct but the complainant was cross-examined on in this and it was otherwise adequately canvassed in addresses.

The appellant's document also implies that he would be able to advance further arguments after he had read trial transcripts. However no such indulgence was sought by his counsel.

As his counsel quite properly conceded none of these matters raise any sustainable grounds of appeal and the appeal against conviction must therefore be dismissed.

The application for leave to appeal against sentence is of greater substance. The applicant's conduct was abhorrent and had no redeeming features. It involved taking advantage of a handicapped little girl placed in his trust and maintaining his repulsive conduct over a long period. Moreover, as the respondent has pointed out, he has shown no sign of remorse for that conduct.

Unfortunately there is no medical evidence of what, if any, long term effects the applicant's conduct will have on the complainant. But it is almost inconceivable that it will not have some enduring consequences. It plainly caused her considerable stress at the time.

It was submitted on the applicant's behalf that, when regard is had to comparable sentences, that imposed in this case was too high. It was submitted that the appropriate range was six to seven years and that the appropriate range for each of the lesser offences was two to three years imprisonment. The former of these submissions accords generally with the submission made on the applicant's behalf before the learned sentencing Judge that the range for the more serious offence was five to eight years imprisonment.

The applicant's main contention was that the schedule of sentences tendered to the learned trial Judge and the Court indicated that sentences of ten years or more had been imposed only in those cases where the maximum sentence was imprisonment for life; that is where there were specific offences committed during the course of that relationship for which the offender was liable to imprisonment for 14 years or more. That submission appears to be correct. See for example Kingwill (C.A. No. 75 of 1993); Kreiger (C.C.A. No. 13 of 1991); K (C.A. No. 203 of 1993) and S (C.A. No. 316 of 1993). Mr. Byrne Q.C., who appeared for the respondent, conceded that he was not aware of any case in which a sentence of ten years or more had been imposed for the major offence where the lesser offences did not carry a maximum sentence of 14 years or more. Moreover there are many cases in which the individual offences comprising the acts of maintaining the sexual relationship were acts involving intercourse or anal intercourse on numerous occasions (offences for which the offender was liable to imprisonment for 14 years or more) but the sentence imposed was less than ten years. See for example J (C.A. No. 264 of 1992), Gillespie (C.A. No. 168 of 1992), C (C.A. No. 153 of 1993), T (C.A. No. 68 of 1993), Morrison (C.A. No. 314 of 1993), Black (C.A. No. 159 of 1993), H (C.A. No. 442 of 1993), M (C.A. No. 389 of 1993) and Matherson (C.A. No. 19 of 1994).

When regard is had to those cases the sentence imposed appears to be outside the range appropriate for an offence of this seriousness. So also were the sentences imposed for each of the lesser offences. Notwithstanding the seriousness of the offences and the applicant's total lack of remorse, the sentences were, in our view manifestly excessive.

We would therefore in each case grant the application, allow the appeal and set aside each of the sentences imposed below. We would substitute for the sentence imposed for the offence of maintaining a sexual relationship a term of eight years imprisonment and in respect of each of the other offences a term of four years imprisonment.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 12th day of December 1995

I have read and I agree with the joint reasons of Fitzgerald P. and Davies J.A. on this appeal and the orders they propose.