The Queen v S

[1996] QCA 409

[1996] QCA 409

COURT OF APPEAL

FITZGERALD P
DAVIES JA
MACKENZIE J

CA No 389 of 1996

THE QUEEN

v.

S  Respondent

ATTORNEY-GENERAL OF QUEENSLAND  Applicant

BRISBANE

DATE 07/10/96

JUDGMENT

THE PRESIDENT:  The Attorney-General has applied for an extension of time within which to appeal against sentences imposed upon the respondent, S, in the District Court at Bundaberg on 30 July 1996.  On 23 July 1996, the respondent had been convicted, after pleading guilty, of eight offences of unlawful carnal knowledge of a girl under the age of 16 years, between 10 and 25 May 1996.  As is apparent from the short period which elapsed between the offences and the respondent's conviction and sentencing, he cooperated fully at all times.

The girl was aged fourteen and a half years when the offences occurred.  The respondent was a friend of the girl's mother and an infrequent visitor to their home prior to May 1996.  The respondent and the girl first met in April 1996.  Because he has suffered a back injury, the respondent moved into the home of the girl and her mother on 8 May 1996.  The girl's mother worked irregular hours, so that the girl and the respondent were alone in the home at various times.  The respondent first made improper advances to the girl almost immediately after he had moved into her home and they first had sexual intercourse on 10 May 1996.

There were eight occasions of intercourse each initiated by the respondent, terminating on 25 May when the respondent moved out of the house where the girl and her mother lived.  The girl was a willing participant, although according to the Attorney-General's contention, she was on at least some occasions, unenthusiastic and now feels taken advantage of and has suffered emotionally.

The respondent was born on 27 December 1962 and aged 33 years at all material times.  He has no prior convictions and a reasonable work record.

The respondent was sentenced to imprisonment for six months in respect of each offence, the sentences to be served concurrently, and it was recommended that he be considered eligible for parole after he had been imprisoned for six weeks.

The sentencing Judge said that the offences should be seen as the seduction of a young girl by a much older and mature person, but referred to the wide spectrum of seriousness - and corresponding punishment - of offences of unlawful carnal knowledge.  Various penalties which might apply at various points along the continuum of seriousness, were identified by the sentencing Judge.

According to the Attorney-General, the sentence was manifestly inadequate, failed to reflect the general gravity of the offences generally and in this particular case, failed sufficiently or at all to take into account general deterrence, and gave too much weight to mitigating factors.  It was submitted that the appropriate range was 18 months to four years, which is a surprisingly broad range, and that the appropriate sentence would have been imprisonment for two and a half years.

A schedule of unlawful carnal knowledge sentences was provided, together with copies of various cases extending back to Thorne, Court of Criminal Appeal number 242 of 1983.  Other decisions of which copies were provided were Burrows, Court of Criminal Appeal 310 of 1984; Bourne, Court of Criminal Appeal 199 of 1986; Cooling, Court of Criminal Appeal 186 of 1989 and Poonkamelya, a decision of this Court number 323 of 1993.  The latter is, in my opinion, the most useful in the present circumstances and indicates a sentence of imprisonment there, of nine months.

Before dealing further with the appeal, it is necessary to note that it was filed and served out of time.  It should have been filed on 27 August 1996, but no attempt was made to do so until 28 August.  On 30 August it was filed together with an application for extension of time and the papers were served on the respondent on 2 September.

With the consent of both parties, the merits of the appeal have been considered in conjunction with the application for an extension of time.  The explanation for the late filing of the notice of appeal is that a senior Crown Prosecutor in the office of the Director of Public Prosecutions had wrongly calculated that the notice of appeal did not need to be filed until 28 August and the Attorney-General was so advised on 21 August.  He signed the appeal on 26 August, but as stated, no attempt was made to file it until 28 August.  Why it should have been left to what was believed to be the last day, was not explained.

This Court has, in The Queen v. Melano, ex parte Attorney-General [1995] 2 Qd R 186 stated the principles to be followed in relation to an appeal against sentence by the Attorney-General, and Melano has been followed and approved on numerous subsequent occasions.  It must be shown that the sentencing Judge erred in principle, either because an error was discernible or demonstrated by manifest inadequacy or excessiveness of sentence.

Obviously the failure of the Attorney-General to proceed in time is an additional consideration which would disincline the Court to interfere, if error by the sentencing Judge is not sufficiently clearly established.  Compare Hyman (1990) 46 A.Crim.R. 217 at 222, Diep v. Phan (1994) 76 A.Crim.R. 66 at page 70 and Armstrong, a decision of this Court in appeal numbers 518 of 1994 and 106 of 1995, an unreported decision delivered on 7 April 1995.

While the girl was a willing participant, she was exploited.  The worst feature of this case is that as soon as he was let into the house and left alone with the girl, the respondent took advantage of the situation.  Cases placed before the sentencing Judge on behalf of the respondent and the decisions to which this Court has been referred indicate that the sentences here were lenient.  However, it is to be remembered that the offences all took place within a short period of time and that the respondent was a first offender.

It is possible to think that he was given the benefit of his personal factors including his early plea and extreme cooperation, with the matter proceeding on an ex-officio indictment, both in relation to the head sentence and in relation to the recommendation for early release on parole.  However, with respect to the latter matter, we were informed by his counsel, without objection from the prosecution, that he remains in prison to this point and that the early recommendation for parole has not really been a substantial benefit to him.

In all the circumstances, I am not persuaded that an extension of time should be granted and I would refuse the application.

DAVIES JA:  I agree.

MACKENZIE J:  I agree.

THE PRESIDENT:  The order of the Court is, application refused.