R v The Queen

[1996] QCA 263

IN THE COURT OF APPEAL [1996] QCA 263

SUPREME COURT OF QUEENSLAND	C.A. No. 125 of 1996
Brisbane [R. v. R]

THE QUEEN

v.

R

(Applicant) Appellant

Derrington J
Mackenzie J

White J

Judgment delivered 09/08/1996
Judgment of the Court

EXTENSION OF TIME TO APPEAL GRANTED. LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED TO THE EXTENT OF SUBSTITUTING A SENTENCE OF FOUR YEARS' IMPRISONMENT WITH A RECOMMENDATION FOR PAROLE AFTER TWELVE MONTHS IN LIEU OF THE SENTENCE OF FIVE YEARS' IMPRISONMENT IN RESPECT OF INCEST COUNT. IN RESPECT OF THE INDECENT DEALING SENTENCES A RECOMMENDATION FOR PAROLE AFTER TWELVE MONTHS OTHERWISE THE APPEAL IS DISMISSED.

CATCHWORDS:  APPEAL - extension of time - likely prospects of
success.

CRIMINAL LAW - incest and indecent dealing - whether sentence

manifestly excessive.

Counsel:	Mr RJ Clutterbuck for the applicant Mr D Meredith for the respondent
Solicitors:	Neumann & Turnour for the applicant Director of Public Prosecutions for the respondent

Hearing Date: 30 July 1996

JUDGMENT OF THE COURT
Judgment delivered the 9th day of August 1996

The applicant seeks an extension of time within which to seek to leave appeal against the sentences imposed on him in the District Court on 23 February 1996. The notice of appeal and application for an extension of time are dated 15 April 1996, some three weeks out of time.

The applicant offers by way of explanation his total inexperience of the criminal justice system and prisons in particular; that he was distraught, nervous and concerned for his own welfare and safety in prison in the early days of his incarceration such that the days slipped by; and in any event he did not know of the time limitations for an appeal. He concedes that his legal advisers suggested to him that the sentences imposed could be regarded as on the excessive side. However it appears that it was not until rumours within the prison confirmed this that he discussed the appropriateness of lodging an appeal with his wife. The applicant approached his solicitor about an appeal notice but it was not until funds became available through his wife that the applicant was able to instruct his solicitor to draw and file the notice of appeal.
As is customary in applications to extend time the
applicant's likely prospects of success on the appeal are
canvassed, R v. Brown [1985] 2 Qd. R. 126 per Ryan J at p. 135.

The applicant's grounds of appeal are that the sentences are

manifestly excessive.

The applicant pleaded guilty on an ex officio indictment to four counts of indecent dealing, two with a child under the age of 12 years with circumstances of aggravation, two with a child under the age of 16 years with circumstances of aggravation and one count of incest. The child concerned was the applicant's natural daughter. The applicant was sentenced to imprisonment for two years on each of the indecent dealing charges and five years' imprisonment on the incest charge, all sentences to be served concurrently. The learned sentencing judge recommended that the applicant be considered for release on parole after serving 18 months of his sentences.

Count one occurred on an unknown date between 1 June 1991 and 30 September 1992. The applicant digitally penetrated the complainant's vagina. She was then aged between 9 and 10. When the child was 11 the applicant went into his daughter's bedroom, touched her breasts and vagina, pulled her underpants down, removed his pants, lay down facing the child and pulled her towards him. She felt the applicant push his penis into her vagina. She said that this lasted for a few minutes. The applicant then dressed himself and she went back to sleep. This event was the subject of the incest count. On an occasion approximately three years ago the applicant put the complainant's hand down the front of his pants onto his penis. He pulled his shorts down and pushed her head towards his penis and placed it in her mouth. There was no ejaculation. This was the subject of count three. About two years ago the complainant was in the applicant's bedroom when he put her hand onto his penis. He started moving her hand up and down and he then masturbated himself to ejaculation in his own hand which he then washed. This was the subject of count four. When the complainant was about 13 years old some ten days prior to making her statement to the police, the applicant rubbed her left breast. This conduct constituted count 5.

The applicant is now aged 45 years. At the time the offences came to light he was bursar/accountant at a private school and as a consequence lost his employment. He has no previous convictions. The offences were committed over a period of about seven years when the complainant was between the ages of 6 and 13 years. There are three other children of the marriage - 15, 10 and 6 years concerning whom no complaint has been made. It seems that the complainant raised the indecent interference with a school counsellor. When contacted the applicant voluntarily surrendered himself to the local CIB and took part in a record of interview. He admitted to indecent activities with the complainant approximately twice a year and admitted the penetration in 1993. There was no suggestion that more than one act of incest had occurred. The applicant voluntarily removed himself from the family home before being charged and immediately attended upon a psychiatrist for treatment. There was sexual frustration in the applicant's marriage. He and his wife embarked upon joint therapy prior to his imprisonment. The psychiatrist considered that the applicant's response to therapy was good and that he was not at risk of re-offending. The family unit appears to be intact and, so far as can be understood, is supportive of the applicant.

The overwhelming factor in favour of the applicant is his demonstrated remorse by doing everything possible to spare his family and the complainant in particular further pain by going voluntarily to the police, by making appropriate admissions, by leaving the home before being charged and by pleading to an ex officio indictment. Further he immediately sought appropriate psychiatric treatment and has cooperated in it. The question then is whether the sentence of five years for one event of incest with a recommendation for parole after 18 months is excessive. The indecent dealing sentences were not the subject of submissions. Counsel for the applicant has submitted that an appropriate penalty is four years with a recommendation for release on parole after serving 9-12 months of that sentence.

In the court below the prosecutor tendered a table of incest and indecent dealing cases to the learned sentencing judge. The applicant submits that the learned sentencing judge gave undue weight to those decisions without sufficiently considering the particular facts in each of those cases which gave rise to the sentences. All cases are dependent on their special facts in assessing the appropriateness or otherwise of the sentence imposed and none more so than incest and indecent dealing cases which occur within the family unit. However, some attempt must be made to place each case within the spectrum and at an appropriate place in it, per Mackenzie J in Simpson C.A. No. 137 of 1990, unrep. 8 August 1990. That was a case in which a sentence of 10 years for each of three counts of incest was reduced to 8 years on appeal. It was a particularly gross case involving one count of indecent dealing with a girl under the age of 14, six counts of indecently dealing with a boy under the age of 14 and three counts of incest. The complainants were the natural children of the applicant. He had some previous convictions for wilful exposure to his children. It was a late plea of guilty and although there was some degree of cooperation it was not described as either full or frank. It is unnecessary to particularise the conduct but it was of a particularly disgusting kind. So too in the case of Thomas C.A. No. 327 of 1989, unrep. 16 March 1990 where a sentence of 10 years for

incest was reduced to 8 years. The child was the applicant's daughter and intercourse occurred when she was aged 11. She suffered from regular physical abuse at the hands of her father.

Convictions occurred after a trial. In sentencing the applicant the learned trial judge said that he considered it to be one of the worst cases of incest that he had ever tried and, although recognising it to be so, including a complete absence of remorse, the Court of Appeal considered the sentence imposed as excessive and, as mentioned, reduced it to one of 8 years.

Another very serious case was that of Motbey C.A. No. 46 of 1988 where an Attorney-General's appeal on a sentence of seven years and five years for two counts of incest after a trial was not disturbed. He was also convicted on two counts of indecent dealing. The girls were his three natural daughters. The act of incest with one of the daughters for which the higher sentence was imposed occurred when she about 4 years of age. Intercourse took place many times over a number of years. His daughters were very fearful of him. The appeal generally focused on the appeal against the conviction and the sentences imposed were said to be "more or less in line" with orders made in other cases.

Moore C.A. No. 215 of 1989 was a plea of guilty to four counts of incest. The background was a sexual association between the applicant and the complainant who was his daughter from the age of 15 to 33 years during which the complainant bore her father five children. He had threatened violence in the early years of their relationship and was, in fact, physically violent to her. The sentence of 7½ years was not disturbed on appeal but it was described as "an extremely unusual case". The Chief Justice observed at p. 2 of his reasons

"We were told by counsel for the applicant that the normal sentencing range for an offence of incest is in the vicinity of 4 to 5 years' imprisonment. Counsel for the Crown disputed that and claimed, as I understood him, that over a more recent period of time the range was between 5 and 7 years.

Speaking for myself, I am not satisfied that there is normal range. Each case at this category must depend on the circumstances. The circumstances of the present case are bad."

In Carter C.A. No. 342 of 1985 the applicant engaged in sexual intercourse with his two daughters over a ten year period. Some threats were made. It is not clear from the judgment of the Court of Criminal Appeal whether the applicant pleaded to the charges or was convicted after trial. It appears that there were five children involved in the charges before the court and supported the applicant and were anxious to have him returned. A particular feature referred to by the learned sentencing judge was that the unlawful conduct had persisted over such a lengthy period of time and that threats were made by the applicant at the time of his advances to his daughters. Macrossan J (as his Honour the Chief Justice then was) said that he did not regard the case as a particularly bad one compared with some of the cases with which the court was obliged to deal but that society's disapproval of offences of this kind must be marked and effectively marked by the sentence imposed particularly as a deterrence to others. The court reduced the sentence imposed with respect to the counts of incest to five years and recommended that the applicant be considered for parole at the end of 1½ years.

In the case of Jobson (Senior) C.A. No. 72 of 1989 after a trial, the applicant was sentenced to seven years' imprisonment for incest with his daughter. Threats and violence were visited upon her if she refused her father's sexual advances which had occurred over a number of years. On appeal the sentence was reduced to five years. The Chief Justice said at p. 3 of his reasons after reviewing a number of authorities

"For example, in Baldwin it was stated that four to five years is a fairly common range; in Carter again it was said that a general range was something in the order of four to five years; in Cooksley it was said that sentences of four and five years are not rare ... The offence is serious and always must be visited with a substantial penalty. Speaking for myself, however, I do not think that this is the sort of case which, consistently with what was said in the other authorities and is done from time to time, calls for a sentence as high as seven years. I would be prepared to say that I regard that sentence as manifestly excessive, and for my own part I would grant leave and reduce it to a term of five years."

Ryan J agreeing at p. 4 observed that

"... The facts which have been placed before us reveal a degree of criminality for which this Court has on previous occasions considered that a sentence of five years' imprisonment was appropriate."

The Court of Criminal Appeal reduced a sentence of 7½ years for seven counts of incest to five years in Draper C.A. No. 106 of 1990. The applicant had pleaded guilty. The complainants were his two natural daughters aged about 12 and 13 at the time of the commission of the offences. The offending conduct took place over two years. One of the daughters at the age of 13 became pregnant due to her father's conduct and had a therapeutic abortion. There was evidence of psychiatric disturbance as a consequence. There was some evidence of some remorse and it was acknowledged that although no overt threats were involved it was likely that the applicant exhibited "moral coercion" on the girls. Kelly SPJ said the fact that there were repetitive acts of incest over a period of two years, the fact of the pregnancy, and subsequent abortion needed to be taken into account but nonetheless the sentence of 7½ years was to be regarded as manifestly excessive and that an appropriate sentence was one of imprisonment for five years.

Kendall C.A. No. 450 of 1995, a recent decision (1 Feb 1996) involved four counts of incest committed 30 years earlier against one of the applicant's daughters. An offence of indecent dealing with another daughter was also pleaded to. At the time of sentencing the applicant was 67 and was sentenced to five years' imprisonment with a recommendation for parole after two years. The focus of the appeal was on the recommendation which it was submitted ought to have been for an earlier release on parole. Three of the occasions of incest were committed in the bush while the daughter was helping the applicant with stock work. It appears that the girl submitted because of fear of punishment if she did not. The other occurred in the family home while the mother was absent. When the complaints first came to light the applicant admitted a degree of sexual interference with the eldest daughter but said it was limited to simulated sexual intercourse and did not admit to interfering with the younger girl. The two complainants told the learned sentencing judge that the events had affected their capacity to form relationships throughout their lives. The applicant had a good community history. Mackenzie J observed at p. 4 that whilst other judges may have approached the matter of the recommendation for release on parole on a different basis he could not conclude that the failure to do so resulted in a sentence that was manifestly excessive.

Mr Meredith who appeared for the respondent on this appeal submitted that the decision in Kendall is determinative of the matter. There are features about Kendall which are different from the present case, particularly the fear of punishment and the far from full disclosure of the police. We have already set out the way in which the applicant has sought to express his remorse by a complete acceptance of the complaints made by his daughter. There was no evidence of any overt physical violence or threats of violence in this case, and only one daughter was involved.

The other cases on the schedule which were handed to the learned sentencing judge are not, in our view, relevant or of assistance in considering the appropriate sentence in this case and we make no further reference to them.

Without in any way condoning the applicant's criminal conduct in abusing his position of trust to gratify his own sexual needs, this case does not appear to be anywhere near the upper range of serious incest cases or even of the same degree of seriousness as those where five years has been said on appeal to be the appropriate sentence. The activity which constituted the incest endured for a few minutes and the applicant then desisted. There is no evidence before the court as to the impact that the period of abusive conduct has had upon the complainant's mental wellbeing. There could be little doubt however that it must have had some deleterious effect upon her.

The applicant's good history and endeavours to spare his daughter and family any further distress must count strongly in his favour. We have concluded that the learned sentencing judge must have been unduly influenced by the schedule of cases handed to him. On a busy sentencing day it is very difficult to peruse comparable cases and without doing so the particular circumstances which called for particular sentences cannot readily be appreciated. A consideration of those cases leads us to the conclusion that the imposition of a sentence of imprisonment of five years for this count of incest is manifestly excessive. We would grant an extension of time within which to appeal and allow the appeal and in lieu of five years' imprisonment substitute a sentence of four years' imprisonment with a recommendation for parole after serving twelve months of that sentence. We would not disturb the sentences with respect to indecent dealing save to recommend parole after twelve months in lieu of eighteen months.