R v Y

[1997] QCA 87

[1997] QCA 087

COURT OF APPEAL
DAVIES JA
WILLIAMS J

MACKENZIE J

CA No 23 of 1997
THE QUEEN
v.

Y	Applicant
BRISBANE ..DATE 18/04/97
JUDGMENT
180497 T10/JR5 M/T COA68/97

WILLIAMS J: On 10 January 1997 the applicant pleaded guilty to one count of maintaining a sexual relationship with a child under the age of 16, 16 counts of indecent dealing with a child under 14, five counts of indecent dealing with a child under 16 and 11 counts of aggravated and indecent assault.

The learned sentencing Judge imposed sentences with respect to each of the offences but the operative sentence for present purposes was that of five years' imprisonment without any recommendation for early parole imposed with respect to the charge of maintaining a sexual relationship with a child under the age of 16.

The application is primarily based on the proposition that the learned sentencing Judge failed to give adequate allowance for the applicant's early plea, his remorse, his previous good character and the fact that he, by pleading guilty, avoided the consequence of the complainant girl having to give evidence.

The complainant girl was the step-daughter of the applicant. The conduct in question commenced shortly after the applicant and the complainant's mother commenced living together. The conduct occurred over a broad period of time from July 1985 to December 1992 and that covered the period from the girl being aged about eight to being aged 14. The offences therefore commenced when the complainant was particularly young, and in my view it is of great significance that 32 specific incidents were able to be particularised for purposes of framing the indictment.

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Many of the offences involved penetration of the girl's vagina by use of the finger or tongue of the applicant. The offences were clearly without consent and there were instances of the applicant relying on his position of authority over the child in order obtain her reluctant acquiescence in what was happening.

The conduct ceased when the girl reached an age where she was able to stand up for her rights, so far as the applicant's advances were concerned. When she made it clear to him that she did not want the conduct to continue he said words to the effect, "You have made your decision, you live with it." According to her statement, after that his treatment of her was horrible. He would not speak to her, he would yell at her if he had anything to say. It is also a case where there was clear evidence before the sentencing Judge that the conduct of the applicant has had a major and continuing psychological impact on the young woman. She is having extreme difficulty in her relationships with male friends and that is a matter to which the Court can have regard.

The learned sentencing Judge said that he had regard to the factors that I have already mentioned in fixing the head sentence of five years. Counsel for the applicant also referred to the fact that he had no previous convictions and it was an ex officio indictment. She emphasised his previous good character.

It is an unfortunate but common feature of many cases of this kind that the offender has, apart from the sexual misconduct, otherwise led an exemplary life. In cases such as B,

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CA 328 of 1995, judgment 23 October 1995, the Court has pointed out that in cases such as this previous good character is not necessarily a matter which should weigh heavily when it comes to the question of sentence.

The learned sentencing Judge's attention was drawn to a number of sentences which were said to be comparable. In particular, reference was made to T, CA 89 of '93, Brown, CA 360 of '94 and S, CA 327 of '95. The learned sentencing Judge made the observation that S was a worse case than the instant case before him. In S the sentence, which was not interfered with by this Court, was seven years' imprisonment with a recommendation for parole after three. S involved a father and son relationship and there were instances of ejaculation. They were the principal matters pointed to by counsel for the applicant as indicating that S was worse. However, it seems to me that there is no proper basis for concluding that S was a worse case. Here, there was a relationship of trust. For much of the period there was the formal step-father/step-daughter relationship and as I have already indicated, a number of the acts involved the applicant forcing his penis into the girl's mouth. In those circumstances the case is fairly comparable with S where the relationship again started when the boy was aged about eight.

B is another case where the Court arrived at a sentence of seven years' imprisonment with a recommendation for parole after three years. In B, the girl was older when the relationship started; she was about 13 years of age and it did involve some instances of intercourse. But it does seem to me that the cases of S and

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B do indicate that the upper end of the range is certainly around seven years with a recommendation for parole after serving three. Against that background, it seems to me that the learned sentencing Judge did take into account the factors of early plea, remorse and saving the girl from the necessity of giving evidence in fixing on a head sentence of five years without any recommendation for parole.

In my view, a sentence of five years was well within the range, given all of the circumstances, including the mitigating factors in favour of the applicant. This was, in my view, a particularly bad instance of this offence and it is, as I have already said, a case where there were clear ongoing adverse consequences for the girl in question. In all the circumstances I would refuse the application to appeal against sentence.

MACKENZIE J: I agree.

DAVIES JA: I agree. The application is refused.

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