The Queen v K[1998] QCA 193

COURT OF APPEAL

de JERSEY CJ

DEMACK J

CHESTERMAN J

CA No 127 of 1998

THE QUEEN

v.

K (Applicant)

BRISBANE

DATE 23/06/98

JUDGMENT

DEMACK J:  On 9 August 1996, the applicant was sentenced to 10 years' imprisonment following his conviction by a jury of two counts of indecently dealing with a boy under the age of 17 years with a circumstance of aggravation and one count of sodomy of the same boy. The offences had been committed 20 years previously.

The applicant Kuhn lived in a de facto relationship with the boy's mother who was an alcoholic. The evidence showed that conduct of that kind had been committed over an extended period commencing when the boy was in grade 1 but this was treated only as background material by the sentencing Judge. That Judge noted that Kuhn showed no remorse. An appeal against that conviction was dismissed by this Court. There was apparently no appeal against the sentence.

On 24 February 1998 Kuhn was convicted by a jury of two counts of indecently dealing with a boy under the age of 14 years and four counts of sodomy of the same boy. This boy was an older brother of the boy in the earlier trial.

Following that conviction Kuhn pleaded guilty to six counts of rape and two counts of indecently dealing with a girl under 14 years. She was a sister of the two brothers. The same District Court Judge dealt with the three matters. He came to the conclusion that there should be an effective sentence of 16 years' imprisonment. He imposed sentences of six years' imprisonment in respect of each of the charges of rape to be served upon the expiration of the sentence of 10 years' imprisonment imposed on 9 August 1996.

The transcript of his sentencing remarks says 10 August 1997 and if that appears in the records of Corrective Services Commission it should be altered to read 9 August 1996. Lesser penalties were imposed in respect of the other charges. The issue on appeal is whether the effective sentence is manifestly excessive.

The applicant was convicted in the District Court on 2 June 1989 of one count of indecently dealing with a girl under 16 years and fined $2,000. There were no other relevant matters in his criminal history.

To put the matter in some context it is necessary to refer briefly to the facts. The complainant boy in respect of whom sentences were imposed this year was the third child in a family of six children being born on 4 August 1963. His parents separated when he was four years old and thereafter Kuhn formed a relationship with his mother. As I have said that woman was an alcoholic.

Count 1 in respect of that boy occurred when the boy was four years old and it involved the touching of his penis. The second count was of a similar nature. Some time later in relation to the third count Kuhn asked the boy to go to the fettler's shed at Emerald. Kuhn was employed in the railway. The boy went to the toilet and Kuhn followed him in and sodomised him. The boy felt lots of pain and cried. He said that he had been taught to do what adults told him to do and thought that this was part of life.

When he was six years old the family moved from Emerald to Warwick and there were other instances of sodomy that occurred there when he was seven years of age and also when he was 11 years of age.

From about the age of 10 the boy had begun to run away from home and finally when he was 11 after what was the sixth count of that indictment he left home with his younger brothers for good. One of those younger brothers was the boy in respect of whom the sentences were imposed in 1996. So far as the girl is concerned she was born in 1964. The first charge in respect of her occurred when she was five years old. She was travelling with the applicant on a train and he took her to the back of the train and threatened to throw her out of the train if she did not do what he told her.

He took her into the last carriage and raped her. There were indecent acts at the fettler's shed in Warwick and persistent counts of rape in the house where the applicant lived with the girl and also the fettler's shed and perhaps most distastefully of all after a Christmas party. This was count 7. She attended the Christmas party with Kuhn. He told her she was not allowed to open her present until she went back to their house with him where he raped her.

The last count on that indictment involved raping her on an old table on a back verandah. It is difficult to imagine more humiliating examples of rape of a young girl and this conduct was persisted in. In addition to the matters alleged in the indictment in her statement the girl spoke of other instances of rape as well.

These matters were then all before the sentencing Judge. He took note of the fact that there had been a lengthy period of time that had passed since the offences were committed. He recognised that he could not impose a heavier sentence than was properly imposed in respect of the charges on the indictment. He considered what seems to me to be all of the relevant matters and as I have said came to the conclusion that an overall sentence of 16 years was appropriate.

In the applicant's submissions the following passage in the sentencing Judge's remarks is quoted:

"In this case the passage of time is offset by the extreme seriousness of the offences by the fact that the offences probably have had an enduring effect on the three victims, and by your conviction in 1989 of a sexual offence on a child. The last circumstance underlines a claim to demonstrate rehabilitation on your part. Allowing some moderation in the sentence to allow for your personal circumstances, and for the plea of guilty, and for the passage of time since the offences were committed, I think that an effective sentence of 16 years imprisonment represents an appropriate sentence."

The applicant's personal circumstances are that he has remarried and has a good work record. It may well be a matter that should be noted that a number of the offences occurred at the applicant's place of work. It is not something from which one can draw an inference but it certainly indicates the attitude that he showed towards these children to whom he had serious responsibilities.

Not only was he in a de facto stepfather relationship, but he knew full well that their mother was an alcoholic and not capable of properly caring for them. On the basis of those sentencing remarks, the submissions made by Mr Butler, senior counsel, are that inadequate allowance was made for the passage of time since the offences occurred, and that probably too much weight was given to the offence in 1989.

We were referred to a number of decisions of this Court; indeed a good deal of the time of the Court has been taken up over the years with offences of this kind. Perhaps reference can be made to the decision of this Court in S, Court of Appeal 316 of 1993, which involved an applicant who maintained a sexual relationship with a four year daughter over a four year period. The relationship involved sodomy and rape and seems to have entirely perverted that young girl.

A sentence of 20 years was imposed, but reduced to 15 years by this Court. In the course of the judgment, reference was made to a number of cases that have come before this Court, including K, CA203 of 1993; Krieger, CCA No 13 of 1991; and Dugdale, CCA No 272 of 1991. In those, sentences of 12, 15 and 13 and a half years were imposed for serious offences.

More recently a matter of G, CA No 22 of 1994, involved a consideration of a number of offences on young children by someone who is recognised as a paedophile. There a sentence of 16 years imprisonment was sustained and on the Attorney's appeal, a recommendation for earlier parole was deleted. In G's case there were over 20 offences on young people. Here there are 17 counts of various sexual offences, including rape and sodomy, committed on three siblings in respect of whom the applicant was de facto stepfather.

They were offences committed with associated threats and some violence. They were offences committed in rather disgraceful circumstances, and the only reason the applicant ceased committing offences was that the children left home. He did plead guilty in respect of the young girl but that plea only came after he had been twice convicted by juries.

It can hardly be said that that plea involves any recognition of remorse or any acceptance of guilt which might indicate that he was being rehabilitated. Whatever benefit there was in that plea was acknowledged by the sentencing Judge and taken into account by him.

I am unable to see anything in the sentencing process that indicates there was any failure of the sentencing Judge to take into account relevant matters. He has imposed sentences which seem to me, in all of the circumstances, to be entirely appropriate. I would dismiss the application.

THE CHIEF JUSTICE:  I agree.

CHESTERMAN J:  I agree.

THE CHIEF JUSTICE:  The application is refused.