R v Swales

[1999] QCA 229

99.229

COURT OF APPEAL

McMURDO P
PINCUS JA

THOMAS JA

CA No 85 of 1999
THE QUEEN
v

S

BRISBANE
..DATE 17/06/99

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PINCUS JA: This is an application for leave to appeal against sentence.
The applicant, now aged 39 years, was convicted in the District Court on a
plea of guilty of 28 offences of a sexual nature and was sentenced by Her
Honour Judge Richards to concurrent terms of four years for some, five
years for others (2 charges of maintaining an unlawful relationship) and three
years for others. There was a recommendation that the applicant be
considered for parole on 31 April 2001, by which her Honour plainly meant
30 April 2001. So that if parole is granted the applicant will be released from
prison about two years and two months after the date of the sentences which

are attacked here. They were imposed at the beginning of March this year.

Before coming to the details of the offences dealt with by Judge Richards, it
is desirable to mention a sentence which was imposed on 31 October 1997.
On that occasion Judge Brabazon sentenced this applicant, on his plea of
guilty, to four years' imprisonment with a recommendation that he be eligible
to apply for parole after 12 months. The offences then in question were 15
counts of indecent dealing with a girl under the age of 16 years and those
offences began in 1984. The victim was the applicant's wife's youngest
sister whom the applicant sexually abused between the ages of 11 and 14
years. He occupied a position of trust in relation to her. It does not seem
necessary to explain the details of the indecent dealing which was charged
and which was admitted. It is enough to say there was touching by hand
and then oral sex. Eventually, the applicant supplied the victim with a

vibrator.

2

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There was no cross-examination or trial. Judge Brabazon was given a
psychiatric report which said that the applicant had not re-offended with that
victim or any other since the relationship ended. His Honour imposed a
sentence a four years with a recommendation for parole after 12 months.
That sentence would, if it ran its full term, conclude on 31 October 2001.
The present sentences, which Judge Richards made cumulative upon those
imposed by Judge Brabazon, added five years making a total sentence of
nine years for all the offences - a period which would conclude on 31
October 2006. So the total term requiring to be looked at, as Mr Rafter says
for the applicant, is nine years with a recommendation for parole after three

and a half years.

This application record discloses facts which indicate that what the applicant
told the psychiatrist as set out in his report, tendered before Judge
Brabazon, was untrue. The applicant had in fact offended seriously between
the time of his activities in the 1980s which were in issue in the earlier case
on the date when he came before Judge Brabazon, October 1997.

In the present case, there were three complainants the first of whom I shall call "J" and the second will be called the applicant's son and the third will be called "R". The applicant was convicted of maintaining a sexual relationship with "J" when she was under 12 years of age. She was, in fact, between nine and 12 years at the relevant time. There was a relationship of trust in that she was the daughter of a friend of the applicant's wife. The applicant was also convicted of maintaining a sexual relationship with his son who was aged between six and nine years at the relevant time.

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It is not proposed to give a comprehensive account of the way in which the
applicant treated these children. Some of the more serious interference
must be mentioned. On one occasion "J" was told to take her clothes off
and lie on her bed. The applicant gave his son a camera and had him
photograph the applicant lying on the bed beside "J" touching her between
the legs. Then "J" was told to take photographs of the applicant touching his
son on the penis. The applicant also took photographs of the two children
touching each other just above the genitals. On other occasions he
arranged a similar activity in that the son was required to put a vibrator
between "J's" legs and to use it around her breasts. The applicant also
inserted the vibrator into "J's" vagina. On other occasions he would get her

to touch the son's penis.

There was no sexual intercourse between the applicant and "J" but he
caused sexual activity to take place between the two children and he
engaged in sexual activity with them, sometimes involving the use of a
vibrator and sometimes not.
"J" was examined by a doctor and it was discovered there had been a
penetrating injury to the vagina; an object, at least, 15 millimetres in diameter
and the hymen was torn and that was said by the Crown to be consistent
with the use of a vibrator.

There was a third complainant whom I have called "R" and she was a younger sister of "J". She was seven years old at the relevant time and this involved a lesser interference. She was touched on the private parts. The children in question gave evidence at committal proceedings and were

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subjected to cross-examination. Not long before the trial it was indicated

that the matter had become a plea of guilty.

The submission which was made by Mr Rafter was not that the sentence
imposed by Judge Richards - which, as I have mentioned, was five years for
the most serious sentences - was, considered in isolation, too high but that if
one adds the five years to the four years which had been imposed in 1997
by Judge Brabazon for offences of a similar character the totality principle
comes into operation.

Mr Rafter submitted that nine years would be an excessive sentence if the applicant had come before one Judge and been sentenced for all these offences, that is, those in the 1980's and those in the 1990s. I pause to observe that a reason why this did not occur was that the applicant did not, as he might have done, tell Judge Brabazon about the other offences. He could, of course, have had them dealt with on that occasion but he was then saying, untruthfully, that he had behaved himself since the offences committed in the 1980s.

We were referred to a number of authorities which I shall mention four.
There was R v. Trost, CA No 386 of 1995,
3 November 1995, R v. Benetto, CA No 367 of 1997, 2 December 1997, and
R v. Cooms, CA No 84 of 1998, 19 June 1998. Of those cases perhaps the
most helpful is Benetto. There were circumstances which differentiate that
case from the present in a way which is unfavourable to the applicant -
particularly the fact that in, sharp contrast to the present case, Benetto

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accused himself of a number of the offences for which he was sentenced;
the Court remarked that the charges - referring to 25 of the numerous
charges involved there - were brought on the basis of Benetto's admissions
to the police when they questioned him with respect to a limited number of
complaints.
With that difference and others in mind, I do not regard Benetto as being a
safe guide to the proper sentence in the present case. Nevertheless, it is of
substantial assistance in assessing the correctness of Mr Rafter's
submission that a total sentence of nine years would have been excessive.

When taxed with that proposition Mr Henry, for the Crown, whose argument I found helpful, conceded that one would tend to find a nine year sentence being reserved for cases in which there was something of a rather more serious character involved and he was unable to refer us to any nine year sentence in comparable circumstances.

The difficulty about this case, as appears from what I have said, is that the five year sentence which was imposed for each of the two offences of maintaining an unlawful relationship (counts 24 and 25) with the two complainants I have referred to as "J" and the son in isolation seems reasonably moderate. That, however, does not fully acknowledge the force of Mr Rafter's submission that nine years for the whole lot, when one considers it in relation to other authorities, seems rather high.

A reduction of the sentence imposed by Judge Richards might give the impression, which is far from the truth, that her Honour imposed too severe a

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sentence for the maintaining offences (considered in the light of all the other
offences) considering those as a separate and isolated matter.

But I have come to the conclusion that her Honour did not make sufficient allowance for the operation of the totality principle, although no doubt she was conscious of it and made some implicit reference to it. I would for myself favour reducing the sentence of five years' imprisonment which her Honour imposed in respect of counts 24 and 25 to four years' imprisonment, to make greater allowance for the totality principle. As to the recommendation for parole, this was, in effect, a recommendation for parole on 30 April 2001 - that is, after having served a total of three and a half years' imprisonment. To take into account sufficiently the fact that, although rather belatedly, the applicant pleaded guilty to all these offences, I would also reduce the non-parole period by six months.

The orders which I would favour making are: appeal allowed, sentences in
respect of counts 24 and 25 reduced from five years' imprisonment to four
years' imprisonment and that instead of the applicant being considered for
parole on
30 April 2001 I would recommend that he be considered for parole on 31
October 2000.

THE PRESIDENT: I agree. I would only add that in this case additional aggravating factors are that the applicant committed two of these offences whilst on bail for the offences on which he was sentenced by His Honour Judge Brabazon.

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Although the applicant should get some credit for his plea of guilty his plea was not an early one. The remorse shown by the applicant was limited in that the plea was offered after the matter had been listed for trial and about two weeks before that listing and after the applicant had cross-examined the complainants at committal.

I agree with the orders proposed by Mr Justice Pincus.

THOMAS JA: In this case sentences were imposed in 1997 for 15 sexual offences upon a child committed many years previously, and in 1999 for sexual misconduct committed between 1994 and 1997 with three other children.

The total effect of the two sentences imposed by the two Courts comes to nine years' imprisonment with consideration for parole after three and a half years. In my view, consistency with the level of sentencing that can be seen from past decisions including Benetto, Trost, Gordon and S, and adherence to the totality principle require some reduction from the overall effect of these sentences.

The reduction should not be great in my view because the present conduct of the applicant is compounded somewhat by the fact that two of the offences in the present group were committed after the applicant was granted bail on the first group. Secondly, committal proceedings occurred

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with some severe cross-examination of the complainants and the degree of

remorse, as the President observes, seems to be questionable.

I agree with the remarks that have been made by both the other members of
the Court and with the orders proposed by

Mr Justice Pincus.

THE PRESIDENT: The orders are the application for leave to appeal is
granted and the appeal is allowed. The sentence imposed below is varied
by deleting the term of imprisonment imposed on counts 24 and 25 and
instead imposing a term of imprisonment of four years and by deleting the
parole eligibility recommendation and instead substituting a recommendation
for parole eligibility on 31 October 2000.

Otherwise, the sentence below is confirmed.

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