R v B[1998] QCA 209

COURT OF APPEAL

McPHERSON JA

DAVIES JA

THOMAS JA

CA No 51 of 1998

THE QUEEN

v.

BApplicant

BRISBANE

DATE 27/05/98

JUDGMENT

THOMAS J:  About 30 years ago when the applicant was aged between 16 and 19 he indecently dealt with his niece J who was then aged about eight. A little under 20 years ago when he was about 25 he indecently dealt with another niece R then aged about seven and on two occasions with his nephew M, aged about eight.

He was initially charged with six counts of indecent dealing with R but a jury acquitted him of five of these and convicted him of one. After that conviction he pleaded guilty to the three abovementioned offences involving R and M.

He therefore fell to be sentenced for four offences of indecent dealing involving three different children 20 or 30 years ago. The learned District Court Judge imposed sentences of three years' imprisonment on the offence concerning R, two years' imprisonment on the offence concerning J and seven years' imprisonment on the offences concerning M.

The applicant has no previous convictions. It is said, and must be accepted, that he put this misconduct behind him at about age 25 and has gone on with his life. He has a stable de facto relationship and supports two daughters aged seven and six. He has a reasonable work history and it is said that he has successfully rehabilitated himself.

It is submitted that the learned sentencing Judge took into account uncharged acts in determining the sentences and from the sentencing remarks it would seem quite plain that he did so contrary to the requirements of R v. D [1996] 1 Qd R 363.

In fact, on two of the counts involving M he imposed the maximum sentence, namely seven years. It is plain that such sentences were manifestly excessive and counsel for the Crown has conceded this to be so. The area of difference, in the submissions, is not of any great order. Counsel for the applicant submitting the appropriate range to be three to four years' imprisonment and the appropriate sentence to be one of three years' imprisonment with a recommendation for parole after 12 months. Counsel for the Crown's submission is that the appropriate range is four to five years' imprisonment and that the appropriate sentence would have been one of four years.

The circumstances of the offences may be briefly stated. The offence in relation to  J was committed when she was about eight and he about 17. She regularly visited the house where the applicant resided. On one occasion while sitting on his lap he pulled down his shorts and exposed his penis, placed her hand on it and made her masturbate him. She was confused by the incident and did not realise the implications of what he had done until she was older.

The count in relation to R occurred when she was seven and he was about 25. The child's mother was diagnosed as suffering from cancer and went to Brisbane for treatment. In the meantime, the child went to live in Rockhampton with her grandmother with whom the applicant resided. The applicant took her, and her brother, to a house into which some relations were moving intending to help tidy it up. The applicant took the complainant upstairs, told her to undress, placed a finger into her vagina and moved it around. The incident was interrupted when M came to the doorway. The applicant yelled at M to go downstairs and told the complainant to get dressed.

The incidents involving M occurred when he was eight and the first of these was at the same time as the incident just described. The applicant, at some stage, showed the boy some pornographic magazines telling him that this showed normal behaviour. The first count occurred in a bathroom when the applicant procured the boy to masturbate him to ejaculation.

It may be noted, in passing, that the prosecutor submitted as follows: 

"M in his statement swears that this type of incident occurred on more than one occasion, in fact, on numerous occasions when he was staying at the house in Rockhampton." 

In his sentencing remarks the learned Judge said:

"As I understand the way in which the Court was asked to deal with the offences concerning M each offence was accepted as being representative of conduct that was repeated by you many times."

Such an approach, it was submitted, was erroneous.

The other incident, concerning M, occurred in the boy's bed. The boy's clothing was removed and he was rubbed with baby oil over the thighs. The applicant placed M in a certain position and rubbed his penis between his thighs engaging in a form of intercourse without penetration of an actual body cavity.

The relevant submissions include the circumstance that His Honour took into account other matters that were not charged, including the "representative conduct" allegation, contrary to R v. D (above). This seems to be made out. His Honour, in referring to the applicant's conduct also referred to "great cruelty towards the children" as a feature of the offences.

These allegations included various acts of violence towards the children on other occasions, setting fire to a cat, and various threats. At some stage it may be necessary for this Court to revisit R v. D (above), some points of which are arguably inconsistent with other authorities both in this Court and in other jurisdictions. But for the present it will not be necessary to determine the precise point at which the taking into account of matters beyond the actual facts that establish an offence becomes impermissible.

It is sufficient in the present case to act on the footing that the applicant was aided in obtaining the consent of the children to his acts by aggressive bullying behaviour that he revealed to the children over a period, making it doubly difficult for them to make effective resistance to his acts. It need hardly be said, however, that he is not to be punished for other offences or for general outlandish behaviour. That circumstance, however, does assist in an understanding of the incidents themselves.

Counsel for the applicant referred to the fact that his client has not reoffended since the age of about 25. He also referred to the delay of about 20 years since the commission of the offences and to the rehabilitation that has apparently occurred. He submits that the applicant is entitled to some benefit from pleading guilty, pointing out that the pleas of not guilty to the charges involving R were largely vindicated. Both counsel agree that no particular past decision gives the particular guidance to the correct level of sentence although Bennetto CA 367 of 1997, 2 December 1997, gives some indication of the Court's approach in these matters.  Bennetto, of course, was a far more serious example than present.

In my view, having regard to the relative seriousness of the actual offences, the fact that there were three separate complainants, and tempering this with the delay that has occurred and the other factors to which I have referred, the appropriate operative sentence that should have been imposed was one of four year's imprisonment with a recommendation for consideration of parole after 18 months.

I would accordingly grant the application, allow the appeal and order that the sentences in respect of the counts relating to M be set aside and replaced with sentences of four years with the recommendation for consideration of parole after 18 months.

McPHERSON JA:  I agree.

DAVIES JA:  I agree.

McPHERSON JA:  The order will be in the form which has been stated by Mr Justice Thomas.