The Queen v M[1998] QCA 152

DAVIES JA:  The applicant pleaded guilty in the District Court on 21 November last to one count of indecent dealing with a boy under 14, one of sodomy, nine of indecent dealing with a girl under 16, two of indecent dealing with a girl under 14 and one of indecent assault.  He was sentenced on the same day to an effective term of seven years imprisonment.  This total term was arrived at by imposing a term of three years imprisonment for the sodomy count cumulatively upon the sentence of four years imprisonment upon the more serious of the offences of indecent dealing with a girl under the age of 12.  The other sentences imposed concurrently were as follows:  one of six months imprisonment for the count of indecent dealing with a boy under 14, one of one years imprisonment on each of the three of the counts of indecent dealing with a girl under 16, 18 months imprisonment in respect of another of those counts, two years imprisonment in respect of the fifth of those counts, three years imprisonment in respect of the sixth of those counts, two years imprisonment in respect of the seventh, eighth and ninth of those counts, one years imprisonment on the second of the counts of indecent dealing with a girl under 12 and one years imprisonment on the count of indecent assault.  The learned sentencing Judge recommended eligibility for release on parole after two years of that total term. 

As can be seen from the learned sentencing Judge's detailed and careful reasons, there were four victims of the applicant's offences.  On the counts of indecent dealing with a boy under 14 and of sodomy, the victim was the applicant's younger brother.  The second and more serious of them occurred when the younger brother was 13 and the applicant aged between 19 and 20.  The less serious offence occurred about three years earlier.  The sodomy involved force and caused the victim considerable pain.

The victim in the nine offences of indecent dealing with a girl under 16 was W, the younger sister of the applicant's wife.  At the time of their commission she was aged between 12 and 14 at which time the applicant was aged between 28 and 30.  It is convenient to relate in detail, as the learned sentencing Judge did, only count eight which was the most serious of these.  The applicant pulled the complainant on to a couch, commenced kissing her and rubbing her crotch region through her clothing with his hand.  He then commenced rubbing his crotch region against hers, pulled down her top so that her breasts were exposed, sucked her nipples and caressed her breasts.  The conduct continued over a substantial period of approximately four hours.  The other indecent dealing offences against this victim involved genital and breast fondling over a period from December 1979 when W was 12, until about January 1992 when she was about 14.

The applicant's third victim was E his niece, the daughter of his brother.  The two offences of indecent dealing with a girl under 14 were committed against her between 1994 and 1996 when she was between five and six years of age and he was 32 or 33.  The most serious of these, for which the learned sentencing Judge imposed the term of four years imprisonment, involved his putting his hand under her dress into her underpants and inserting his fingers into her vagina.  She felt extreme pain as if her vagina was being scratched by his fingernails.  He told her not to tell anyone.  The second of the offences involving E, which occurred during the same period, involved him placing her hand on his penis.

The fourth victim was the applicant's stepson R.  He was 19 years of age at the time of the offence which was in 1992.  He woke up to find the applicant in his room squeezing his penis.  He pretended to be half asleep and kicked out causing the applicant to leave.

Perhaps unsurprisingly none of the victims knew of the offences which the applicant had committed on any of the others until many years later when, in 1996, R made a complaint to his mother.  Each had been reluctant to disclose what had happened to them because of concern as to the effects it would have on the family and because there was considerable embarrassment and shame involved.  W described it as follows: 

"It was awfully stressful for me to try to keep this mammoth secret from the rest of the family.  I felt confused, embarrassed, frightened, guilty and alone."

When all the offences were disclosed to the applicant's wife, she confronted him with them and he broke down in a way which she thought indicated he was suicidal.  He admitted to the offences and agreed to obtain treatment.  Her family including the victims wanted the applicant's wife to leave him because of their concern for a child of the marriage, L, then aged eight.  However the applicant's wife persuaded herself that L was not in danger from the applicant and refused to leave.  It was only then that the victims made a complaint to the police which was in early 1997.

As appears from the dates which I have given the offences spanned the period from 1968 to 1992, more than 20 years.  On any view there was a substantial lapse of time between the commission of any of these offences and their prosecution.  However I do not think that, up to the time when, in 1996, the applicant was confronted to his conduct, admitted to it and agreed to seek treatment, there was any fact which justified a contention that, because of that lapse of time, any leniency should be shown in sentencing the applicant.  Mr Glynn who appeared for the applicant did not contend to the contrary.

After that date and since the undergoing by the applicant of the treatment the possibility of rehabilitation has become a relevant factor and I will return to that a little later. 

As I mentioned earlier, the applicant forced himself on his much younger brother in order to sodomise him.  However in none of the other offences was force used nor were any of the victims threatened.  On the other hand, because of the vast differences in age and the applicant's position of authority in the family neither physical force nor threats was necessary.  The applicant no doubt assumed that his moral authority over the victims and, in the last case involving his 19 year old stepson the fact that the latter was asleep or partly asleep, would be sufficient to ensure that his offences would never be reported to anyone in authority.

The victims' impact statements show that the applicant's conduct has had severe psychological effects on all the victims of the offences, in the case of R it seems because he was aware of some of the applicant's conduct against other victims before it had been generally disclosed.

It is sufficient to say, in respect of each of the other victims, that they have suffered periods of depression and difficulties in adjusting to personal relationships which they attribute to the applicant's conduct.  The disclosure of the applicant's offending conduct has also resulted in an estrangement between the victims on the one hand and the applicant's wife on the other.  After being initially horrified at his conduct and denouncing him she decided to stay with him and, as I have mentioned earlier, refused to remove L from his company.  At least some of the victims think that she has deserted them, placing financial security ahead of family love.  This has caused the victims further stress.

The applicant has been undergoing counselling by a psychologist Dr Walsh who is guardedly optimistic about his prognosis.  He is of the view that the applicant does not represent high risk to the general community and that he represents only a low risk to the children in the family now and in the future.  Dr Smallbone another psychologist, who saw him at Dr Walsh's request for an independent view, was less optimistic.  He thought that the applicant represented a moderate to high risk of reoffending generally but that with respect to L, a low to moderate risk.  Finally the applicant was seen by Dr Curtis, a psychiatrist.  He does not appear to express any view of his own on the matter but defers to Dr Walsh's opinion and expresses his confidence in Dr Walsh's expertise.  He said in summary that he would support with some reservations the general prognosis of an on-going lifetime risk reduced by the mellowing and actual growth of the man.  One thing that is abundantly clear from the reports is that the applicant is a paedophile.  Whether his paedophilic tendencies can be reduced by treatment is unclear though there is some hope that it can. 

This was in my view serious and sustained deviant conduct against four victims, three of whom were young people for whom the applicant was in a position of responsibility and trust.  His offences against them have caused each of them serious psychological harm which may be permanent.

In the applicant's favour are his prompt admissions, his plea of guilty and his willingness to undertake treatment for his condition.  In the latter case it may be accepted in his favour that he undertook treatment before any complaint was made to the police although it was certainly after complaint was first made to the applicant's wife.  He has no prior convictions of any kind, but that is not unusual in cases of this kind. 

The applicant accepts that, if the overall sentence imposed is not manifestly excessive, no complaint can be made against the recommendation for early parole; in other words that, having regard to the mitigating factors to which I have referred, the date recommended for parole is appropriately proportional to the sentence imposed.  However it was submitted by Mr Glynn that the sentence imposed, looked at in total, is manifestly excessive. 

We have been referred to a large number of cases attached to the written outlines both by the applicant and the respondent.  None of them is closely comparable to this and were it not for Mr Glynn's insistent reliance on Gordon (CA No 467 of 1997, 5 February 1998), I would not refer to any of them.

However I should mention Gordon, upon which Mr Glynn placed great reliance.  It is true that the offences which Gordon committed bear some similarity to those in this case and, as Mr Glynn submitted, could be rightly seen as more serious than those in this case.  There were however, in my view, two important distinguishing factors between that case and this.  One of those was what was described in the judgment in that case as the applicant's extreme youth.  He was only between 18 and 20 when the offences in that case were committed.  The other I referred to during the course of argument in this Court was that the offences in that case occurred over a very short period of time, about two years, whereas as I have mentioned those in this case occurred over a period of more than 20 years.

In my view the cases generally show that for sustained deviant conduct of this kind against a number of victims, most of whom were too young to resist or complain, having consequences of the kind which I have outlined, the sentence imposed here was not manifestly excessive.  I would therefore refuse the application.

PINCUS JA:  I agree with the reasons of Justice Davies, but wish to add one comment only, on a peripheral matter.  At page 36 of the record, the learned sentencing judge said among other things:

"The offences charged are discrete offences.  They are not, as I apprehend it, sample offences.  No similar fact evidence is put forward by the Crown."

His Honour then went on to say, in effect, that he therefore had to sentence on the facts presented and relied on by the Crown.

I merely wish to say, in relation to those comments, that the decision of this Court in R v. D [1996] 1 QdR 363 does not allow for the possibility of sentencing on the basis that punishment is to be ordered in respect of uncharged offences.

Apart from that I wish to add nothing to the reasons of  Justice Davies and I agree with the order his Honour proposes.

SHEPHERDSON J:  I would agree with the order proposed by Mr Justice Davies and with the reasons which he has given.

PINCUS JA:  The order of the Court will be application refused.