R v S

[1997] QCA 118

[1997] QCA 118

COURT OF APPEAL

DAVIES JA
WILLIAMS J
MACKENZIE J

CA No 24 of 1994

THE QUEEN

v

S  Applicant

BRISBANE

DATE 18/04/97

JUDGMENT

DAVIES JA:  This is an application for leave to appeal against sentence.  The applicant pleaded guilty in the District Court on 13 January last to two offences of procuring his daughter who was only seven or eight to commit acts of gross indecency on him.  One involved inserting her finger in his anus, the other involved bringing her mouth into contact with his penis.  Both of these offences involved a circumstances of aggravation I have mentioned and the maximum penalty for each was 14 years imprisonment.

At the time of the offences which occurred in October 1991 the applicant was separated from his wife but had regular access to the complainant.  The first offence involved the applicant lying on his back nude with his legs apart and in that position requiring his daughter to insert her finger in his anus.  The second again involved him lying on his back naked and having her masturbate him to ejaculation.  On that occasion he then put his penis in her mouth and required her to swallow his semen.

He threatened the complainant that if he told her mother he would do something bad.  It does not appear that that was a threat to do harm to her.  The complainant did however tell her mother, though a year or more after these events, after satisfying herself that her mother would not be angry with her.

There can be no doubt of the seriousness of these offences.  They were repulsive acts involving a gross breach of trust to his own daughter who was in no position to refuse his directions.  There is no evidence of specific psychological damage to her, however it would be surprising if there were none at least in the short term.

The sentence imposed on the applicant was one of two years imprisonment suspended after 12 months, the operational period being three years.  The applicant's counsel does not submit that the sentence of two years was outside the appropriate range although on the applicant's behalf the submission made to the learned sentencing Judge below was for a sentence of 12 to 18 months.

However, it was submitted to us that some greater advantage should have accrued to the applicant for the factors in his favour to which I am about to refer and it was submitted that in those circumstances it would have been appropriate to suspend the sentence after a period of three to nine months although a period of three to six months had been suggested.

Reliance was placed for those submissions on the facts that the applicant was otherwise of good character, was in full time employment and now in a stable de facto relationship and it was submitted, as it had been below, that at the time of the commission of these offences, he lost his job, his marriage had broken down and he had a substantial drinking problem.

It had been said below that his life had fallen apart.  It was also submitted that as a result of the commission of these offences he has lost contact with both the complainant and his son.  When confronted by police the applicant refused to be interviewed but at committal he indicated that he would plead guilty and the complainant was never required to be cross-examined.

A number of sentences said to be comparable were relied on, at least in the written outlines of counsel, and these were mostly cases of indecent dealing and it has been said before today that not all of these cases can be satisfactorily reconciled.  There is nevertheless in my view a recognisable range.

There is no doubt, as has been conceded, that the sentence imposed of two years was within the appropriate range.  However, as was pointed out during the course of argument, the learned sentencing Judge appears to have made a clear error in suspending it after 12 months.  It is plain that His Honour intended to make some allowance for the applicant's plea of guilty and perhaps for the other factors in his favour to which I have referred.  However, by suspending the sentence in the way in which he did, His Honour plainly failed to do so.

The sentencing discretion therefore in those circumstances miscarried and we should, I think, substitute a sentence which in our view in the circumstances is an appropriate sentence.

That in my view would be one which was imposed, that is a sentence of two years imprisonment, but without the addition of the order for suspension.

I would therefore grant the application and allow the appeal only to the extent of setting aside the order suspending the sentence after 12 months.

WILLIAMS J:  I agree.

MACKENZIE J:  I agree.

DAVIES JA:  The order is as I have indicated.