R v S

[1995] QCA 587

[1995] QCA 587

COURT OF APPEAL

McPHERSON JA
DOWSETT J
LEE J

CA No 327 of 1995

THE QUEEN

v

S  Applicant

BRISBANE

DATE 23/10/95

JUDGMENT

McPHERSON JA:  The applicant for leave to appeal against sentence was convicted on his own plea of guilty in the District Court at Maroochydore.  The offences to which he pleaded were three counts of indecently dealing with a boy under the age of 14 and one of maintaining a sexual relationship with a child under the age of 16.  On each of the first three counts he was sentenced to imprisonment for three years, and in respect of the count of maintaining a sexual relationship he was sentenced to a term of imprisonment of seven years with a recommendation for parole after three years.

It should be noticed that the maximum penalty in the case of that fourth offence which drew the heavier sentence is 14 years having regard to the fact that the charge was one associated with the circumstances of aggravation that the applicant was the father of the complainant boy, and the boy himself was under the age of 12 at the time the offences were committed.  The application before us is based essentially on what is said to be the excessive sentence in relation to that fourth count.

The relationship between the applicant and the complainant is, as I have said, that of father and son.  The son was aged some eight years old when the offences began.  It should be said that the family emigrated from England in September 1986, and there is material in the record that suggests that the offences against the complainant had begun before the family came to Australia.

The offensive behaviour ceased when the boy was about 12 apparently for the reason, so far as one can gather, that the applicant found a grown man with whom he became friendly.

The father was 37 years old at the time of sentence and, so far as one can see, has had difficulty finding work in Australia, or at any rate has not engaged in very much work since he came here.

Most of the worst features of offences of this kind were present in this case.  The father used his paternal authority, backed up with at least one threat and the use of violence on one occasion against the boy, to make him participate and also to ensure that the offence or offences were kept a secret from the mother.  The conduct was pretty well continuous throughout the period.  It can best be described by referring to what was said by the applicant's own solicitor who appeared for him at the sentencing hearing.  He said that, broadly, the abuse consisted of the accused forcing the complainant to suck and rub his penis including insisting on ejaculating into the boy's mouth, and letting the accused rub his own penis against the buttocks.  The solicitor went on to say that this was not an isolated series of events but proceeded throughout those three years.

When the matter was finally reported the applicant tried to prevail on the boy to change his story, or not to maintain the complaint that he had made.  He telephoned the home, from which the applicant was at the time living away, and spoke to the complainant boy, saying words to the following effect:

"And you've got it, lad, and see who's going to look after you, M.  See how it's going to last with your mother and S with you because I guarantee you that a few months after that, lad, you'll be out on the street because they won't want you there.  Don't come bloody back to me, M, then because it will be too bloody late because you're putting me through shit and hell."

Again, later in the same telephone conversation, which had been tape-recorded by the police, the appellant went on:

"M, I would watch your mouth, lad, because no matter what comes out at the end of this, lad, you're going to be bumping into me, right, and then you're going to wish you weren't born because you are big now because you are not near me.  Well, we'll see how big you are after, all right."

The plea of guilty in the case spared the boy the trauma of a trial, but it certainly came very late in the proceedings; that is to say, only a short time before the trial was due to take place.  There was also on the sentencing hearing, a direct but again belated, apology by the applicant father, who as I have said pleaded guilty.

As one would expect the complainant has been affected emotionally by the experience he has gone through.  There is evidence in one of the letters that I have read to the effect that he had a great deal of affection for his father until the conduct in this case took place and became persistent.  According to what was said at the hearing, which I should say was not challenged in any way, the complainant has been counselled and will continue to receive counselling.  He has been scared of his father.  He suffers from a lack of self esteem, feels abandoned, he cannot understand why the accused is the one who has done these things to him, and he is now deprived of his father.

It was added in the course of those remarks that the boy was not coping terribly well with school, which of course would come as no surprise to anyone.  A man must have very little pride in himself or in his son to do something like this to him.

At the sentencing hearing the solicitor for the applicant himself suggested a range of six to eight years was appropriate for an offence of this kind.  It was submitted before us that the solicitor in the Court below had not gone far enough when he simply referred the Court to a series of decisions without concentrating on the details and making comparisons of them.  However, that is not an adequate ground of appeal in this Court, and in any event one can say, with a fair degree of confidence, that every Judge of the District Court has had experience both of sentencing in cases of this kind and of having comparable sentences cited to him.

The other matter that was mentioned as a factor which might have influenced the Judge was that, again, the solicitor for the applicant himself mentioned at a very early stage of the proceedings that there was evidence of conduct on the part of the applicant towards other members of the family - that is, children of the applicant - while they were in England, which conduct compared to this.  Of course, it would have been quite wrong for the Judge to treat that as a factor going to an increase in the sentence in this case because those offences, if they took place, were not charged against the applicant and, having taken place in England, could not have been charged in this jurisdiction.

It nevertheless may have been a factor, coming as it did from the applicant's own legal representative, which affected His Honour's outlook in relation to the matter of a recommendation for parole.

The applicant has, it appears, no other offences of any relevant kind, and it must be said that, even taking account of the matters to which I have referred, the penalty imposed in this case was certainly not a low one.  It was high; but I would not regard it as so high as to justify the intervention of this Court to reduce it, having regard to the principles on which we act in relation to applications for leave to appeal.

We were referred by Mr Hawes of counsel on behalf of the applicant to the case of T with which he dealt at some length.  T was a case in which a sentence of four years was imposed in a case which, in some ways, bears resemblances to this; but it should be emphasised that in that instance the offence of maintaining a sexual relationship with the girl was not accompanied by circumstances of aggravation, with the consequence that, as appears from the reasons for judgment of the Court, the maximum penalty that could be imposed for the offence in question was seven years.

The appeal, which was one by the Attorney-General, did not allege any inadequacy in relation to the head sentence of four years.  The contention of inadequacy there was confined to the recommendation for early release on parole.

That is a matter which of course takes up personal circumstances and factors with regard to the individual in question, and as to that there was a division of opinion in this Court, resulting in the end in a majority decision to leave the recommendation untouched.

In my view, for the reasons I have already given, the sentence in this case was high.  It does, however, compare, not distinguishably in the end, from the case of P J Morrison, CA 314 of 1993, in which a sentence for maintaining a sexual relationship with a boy, indecent dealing and sodomy was reduced from 12 years imprisonment for the maintaining offence to nine years on appeal.

In the result, I see no basis on which to interfere with the sentence below, beyond adding perhaps a cautionary warning to judges before whom these matters come to ensure that a process of creeping increase in the tariff and the upper limits of sentences imposed in cases of this kind does not occur subconsciously or, one might say, surreptitiously.  I would refuse the application for leave to appeal in this case.

DOWSETT J:  I agree.

LEE J:  I agree.

McPHERSON JA:  The order is that the application for leave to appeal is dismissed.