The Queen v F[1998] QCA 131

COURT OF APPEAL

FITZGERALD P

PINCUS JA

MUIR J

CA No 31 of 1998

THE QUEEN

v

F          Applicant

BRISBANE 

DATE 07/04/98

JUDGMENT

THE PRESIDENT:  The applicant seeks leave to appeal against sentences imposed on him in the District Court at Beenleigh on 2 February 1998 in respect of his conviction on four charges of maintaining a sexual relationship with a child under the age of 16 years.

He was sentenced to imprisonment for seven years on each charge to be served concurrently and the sentencing Judge recommended that he be eligible for release on parole after three years.

The four charges relate to behaviour engaged in by the applicant over a period of three years between January 1994 and January 1997.  There were four children involved; two pairs of sisters and at all times the applicant was in a position of trust in relation to the girls who were well known to him as the daughters of friends and/or lessees of premises that he owned.  The girls were quite young; none was older than 13 at any material time and the youngest was seven.

Briefly summarised the applicant's behaviour consisted of showing the girls pornographic videos, rubbing their breasts above and under their clothing; showering with them when they were naked; touching their bodies under the guise of washing them; rubbing their vaginas; performing oral sex; inducing the girls to masturbate him usually to ejaculation and sometimes these activities would take place in combination.  He would perform oral sex on one girl while another was masturbating him.  Sometimes two and sometimes three girls were involved at the one time.  The behaviour was obviously disgusting and serious.

However, there were factors in the applicant's favour.  He not only pleaded guilty on an ex officio indictment thereby avoiding the necessity of a committal or a trial but he did so after making full admissions to police of his own volition apparently to avoid an innocent person being implicated in complaints by one of the girls.

While his statements to police indicate that he initially attempted to portray the complainants as willing participants, the sentencing Judge apparently accepted the submission of the applicant's counsel at that time that he was remorseful and there is no suggestion that he is particularly likely to re-offend.

Secondly, there is nothing to suggest that at any time the applicant caused any direct pain or hurt to any of the girls; that his sexual acts amounted to or were intended to amount to penetration; or that he threatened them to induce their participation and cooperation.

It was common ground at his sentencing that his cooperation was induced more subtly by his relying on general feelings of loyalty and persuading them not to tell anyone because the result would be to get him into trouble.

While this does not lessen the appellant's gross misconduct it places the offences in a less serious category than some others which have come before the Court and which have protracted heavy sentences.  For example, offences where indecent assaults involved physical pain or associated with threats and sometimes terror.

It was also common ground on this occasion that not only was there no such behaviour but that the applicant desisted in certain activities when one of the girls made it explicit that she no longer wished to continue.  Thirdly, the applicant, who is aged 49, has no relevant prior convictions.

Offences of this kind now carry a maximum sentence of 14 years imprisonment and it is obvious that a substantial period was merited on this occasion.  A number of cases were referred to in the written outlines of argument by counsel for the applicant and the prosecution but it is unnecessary, I think, to discuss them in order to distinguish them from the circumstances of this case.

A matter which is of particular significance here is that the applicant implicated himself and fully cooperated from a very early stage and as I have said there was no pain or threats involved.

In my opinion, in the circumstances that I have described, the sentence imposed upon the applicant was manifestly excessive.  I am of the view that an appropriate head sentence would have been imprisonment for five years and that there should have been a recommendation for consideration for release on parole after 18 months.

I would accordingly grant the application and allow the appeal; set aside the sentences imposed below and in respect of each of the offences substitute a sentence of imprisonment for five years to be served concurrently with a recommendation that the applicant be eligible for release on parole after 18 months.

PINCUS JA:  Although the applicant has been guilty of disgraceful conduct this is not a case where the offender has merely admitted allegations made against him.  He has come forward and accused himself.  This is unusual conduct and is commendable.  In the circumstances which have been outlined by the presiding Judge and for the reasons His Honour gives I agree with the order proposed.

MUIR J:  I agree with the reasons of both the President and Mr Justice Pincus and with the orders proposed.

THE PRESIDENT:  The orders will be as I have indicated.