Attorney-General v Smith[1998] QCA 220

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 103 of 1998

Brisbane

[R. v. Smith; ex parte A-G]

THE QUEEN

v.

GEORGE SMITH

 Respondent

 EX PARTE:  ATTORNEY-GENERAL OF QUEENSLAND

 Appellant

Demack J.

Helman J.

Chesterman J.

Judgment delivered 4 August 1998

Separate reasons for judgment of each member of the Court, each concurring as to the order made.

APPEAL AGAINST SENTENCES DISMISSED

CATCHWORDS: CRIMINAL LAW - Four sentences of imprisonment for four years for incest to be served concurrently with each other and cumulatively upon a sentence of imprisonment for twelve years for manslaughter - Whether sentences for incest were manifestly inadequate - totality principle applied

Counsel:  Mr D Meredith for the appellant

Mr J Hunter for the respondent

Solicitors:  Director of Public Prosecutions (Queensland) for the appellant

Legal Aid Queensland for the respondent

Hearing date:  19 June 1998

REASONS FOR JUDGMENT - DEMACK J.

Judgment delivered 4 August 1998

I have had the advantage of reading the reasons for judgment of both Helman J and Chesterman J.  I agree that the appeal should be dismissed, and I agree with what their Honours have written.

It seems to me that one of the difficulties in this appeal arises from the sequence in which Smith’s crimes were brought before courts. 

If Smith had been first charged with incest, a sentence of eight years would have been appropriate.  If he were then convicted of manslaughter, the incest would have been seen as part of the background to the homicide, and a sentence of sixteen years for the homicide, served concurrently with the previous sentence would not have been inadequate.  Here there is a natural tendency to look only at the offences of incest and to share the applicant’s concern that four years imprisonment is inadequate.  However, when it is accepted that he was convicted of manslaughter, not murder, the effective sentence of sixteen years is in proportion to the combined seriousness of the offences.

REASONS FOR JUDGMENT - HELMAN J.

Judgment delivered 4 August 1998

On 16 January this year in the Brisbane District Court the respondent pleaded guilty to four counts of incest on his daughter Kim.  On 6 March the learned sentencing judge ordered that he be imprisoned for four years on each count to be served concurrently with each other and cumulatively upon a sentence of imprisonment for twelve years imposed in the Supreme Court on 20 December 1996 after he had been tried and found not guilty of Kim’s murder but guilty of manslaughter.  Her Honour recommended that the respondent be eligible for release on parole on 9 April 2004, the day he could have expected remission of his sentence for manslaughter.  Prior to his being sentenced by her Honour the day he would have been eligible for parole was 18 April 2002.  (The respondent had been held in custody from 18 April 1996 until he was sentenced on 20 December 1996.)  The Attorney-General has appealed against the sentences for incest on the ground that they were manifestly inadequate. 

The respondent was born on 10 June 1950, his daughter on 26 February 1974.  She suffered from a congenital condition called Williams syndrome which caused her to be very small and mentally retarded.  The respondent committed the four offences between 2 June 1992 and 25 December 1994.  The respondent married Kim’s mother in 1972.  From about 1980 to late 1991 Kim was cared for by people other than the respondent; for a number of years she was in the care of  New South Wales Government institutions.  In 1991 she came to live with the respondent and a wife he had married in 1989, the marriage to Kim’s mother having ended in divorce in about 1980.

The respondent and his wife were paid a pension to enable them to care for Kim.  Apart from committing incest upon her the respondent assaulted her in other ways - “smacking”, and kicking her.  In December 1994 Kim left the respondent and his wife to live with people of the name of Eason.  The Easons noticed that Kim was badly bruised.  She was admitted to hospital where her condition improved greatly.  Kim however told the Easons about the respondent’s sexual abuse of her and, as her Honour remarked, it would seem that the respondent may have been frightened that Kim would repeat the allegations to the police.  She did not do so however, and when she was discharged from hospital she returned to live with the Easons.  She remained with them until her disappearance on 7 July 1995.

In the course of the police investigation which followed her disappearance and the discovery of her body in the Caboolture River on 20 July 1995 with her hands tied behind the back, the respondent admitted to having sexual intercourse with her but denied having killed her.  The charges that were before her Honour were formulated from the admissions made by the respondent.  Her Honour took into account the physical and mental disabilities from which Kim suffered, that she was dependent upon the respondent, and the “opportunistic nature” of the crimes.  Her Honour observed that no doubt Kim had been fearful of the respondent because of the violence he had been guilty of towards her.

Her Honour, having determined that sentences of imprisonment for five years would have been appropriate for the incest offences had the totality principle not applied to the case concluded, correctly in my view, that the sentences should be cumulative upon the sentence for manslaughter.  Her Honour then determined that the totality principle called for a reduction to imprisonment for four years in each case. 

Reference was made before her Honour and before us to the recent decision of this court in a case of incest, R. v. P (C.A. no. 330 of 1997, 19 December 1997, unreported).  Lee J., with whom Davies J.A. and Cullinane J. agreed, discussed a number of cases in which sentences for incest had been considered.  His Honour noted that examination of cases referred to in another unreported decision of this court in R. v. Roche (C.A. no. 125 of 1996, 9 August 1996) showed that in a particularly bad case sentences in the order of eight years or so had been imposed.  P itself was a particularly bad case of offences of the more serious kind and an application for leave to appeal against sentences of imprisonment for seven and a half years after pleas of guilty was refused.  Lee J. also observed that while the many cases referred to in Roche included those in which sentencing ranges of four to five years were considered appropriate, it was clear from the decision in Roche itself and the other cases referred to in that case that sentences in that range are not appropriate in the upper range of serious incest cases.

On behalf of the appellant it was argued that her Honour’s sentencing discretion had miscarried and that sentences of imprisonment for six years would be appropriate, with a recommendation that the respondent be eligible for release on parole on 18 April 2005.  Before  her Honour the Crown Prosecutor, who appeared before us for the Attorney-General, made an oral submission that a sentence of “up to five to six years” after the application of the totality principle would meet the case, so that on the appeal we have had urged upon us heavier punishment than one submitted for her Honour’s consideration.  (I say one submitted for her Honour’s consideration, because in another oral submission the range of five to six years was mentioned and in a written submission six years.)  The discrepancy thus revealed will not necessarily be fatal to the appeal although it is a factor militating against its success: see R v. Conquest, ex parte Attorney-General (C.A. no. 395 of 1995, 19 December 1995, unreported) per McPherson J.A. and Thomas J.

Although the appeal concerns only the sentences imposed for incest, those sentences must be seen in their proper context, which requires the application of the totality principle.  The question before us is then not whether her Honour’s sentencing discretion miscarried when arriving at the sentences for incest seen in isolation, but rather whether her discretion miscarried when all of the respondent’s relevant criminal conduct is considered: not whether an increase of penalty on imprisonment for four years is warranted, but rather whether an increase on an aggregate punishment of imprisonment for sixteen years is warranted.  To approach the case in any other way would clearly offend the totality principle.  Having said that I should record that I see no error in the method adopted by her Honour in first assessing the appropriate sentences for the offences disregarding the totality principle and then adjusting them to take the principle into account.

Because of the callous advantage the respondent took of Kim’s mental and physical disabilities these were very serious cases of incest which, if full weight is given to his confessing and pleading guilty and the totality principle is ignored, warranted sentences of imprisonment for seven to eight years.  Such an outcome would have been consistent with the decision in P and the cases there referred to by Lee J., and her Honour’s assessment of imprisonment for five years would have been manifestly inadequate, in my respectful view.  The question then arises whether an adjustment for the totality principle of three to four years downwards from imprisonment for nineteen or twenty years results in a manifestly inadequate sentence.  Seen, as the adjustment must be, in the context of such a heavy aggregate punishment, it does not in my opinion.  A penalty of imprisonment for sixteen years with a non-parole period of nearly eight years could not be regarded as less than substantial for all of the respondent’s offences.  While something more could properly have been imposed, nothing put before us leads me to conclude that the sentences imposed by her Honour were outside the scope of a proper sentencing discretion.  It is not without significance that a range put before her Honour on behalf of the Crown could have resulted in an outcome of imprisonment for seventeen years, nor is it without significance that another range advanced by the Crown was up to five to six years, suggesting that five to six years was at the top of the range.

I therefore conclude that no sound reason has been advanced to justify the intervention of this court.  In my view then the appeal should be dismissed.

REASONS FOR JUDGMENT - CHESTERMAN J.

Judgment delivered 4 August 1998

I have had the advantage of reading the reasons for judgment prepared in this appeal by Helman J.  I agree with what his Honour has written and that, as a result, the appeal should be dismissed.  It is unnecessary for me to recite the relevant factual background which is carefully set out in his Honour’s reasons for judgment and which I gratefully adopt.

It is difficult to describe adequately the awfulness of the respondent’s conduct  towards his daughter which was the basis of his convictions on the four counts of incest.  The child, though eighteen at the time of the first offence was mentally retarded  and of delicately small build.  Between June, 1992 and December, 1994, the period in which the offences were committed, she was tormented, beaten and sexually exploited.  The very relationship between the respondent and his daughter, and her disability, should have created in the respondent a sense of obligation to defend and protect her.  Instead he abused her dependence and vulnerability for his own sexual gratification.  She was not capable of giving anything like true consent.  She found the treatment to which she was subjected by the respondent objectionable and painful but she was powerless to resist and, until she met the Easons, friendless. 

I entirely agree with Helman J that the present offences fall into the category of “the more serious kind” of incest for which ordinarily a sentence of seven or eight years imprisonment would be appropriate.  The relevant principles may be found in R v. P (CA No. 330 of 1987, 19 December 1997, unreported) to which Helman J  has referred.

In imposing a term of imprisonment of four years in respect of each offence, to be served concurrently, the sentencing judge had primary regard to the totality principle and was concerned not to offend it.  The imprisonment to which her Honour sentenced the respondent was made cumulative upon his punishment of twelve years’ imprisonment for his daughter’s manslaughter.                Her Honour said:

“However, there is another factor which must be taken to account and that is the totality  principle.”

Her Honour then referred to the judgment of de Jersey J  (as the Chief Justice then was) in R v. Clements (1993) 68 A Crim R 167 at 172:

“... it is important that the Court should look for some clear reason why sentences should be served cumulatively in a particular case before so ordering and also should determine whether the resulting effective sentence is totally out of proportion to the combined seriousness of the offences (the “totality” principle).”

The learned judge then referred to R v. Kiripatea [1991] 2 Qd R 687 at 702 where Williams J said:

“When a sentence is deferred for a lengthy period - and, in my view, five years is such a period - then some moderation is called for with respect to the length of the sentence in question.  The sentence imposed should not be a crushing one and there is good reason for avoiding a sentence which would effectively destroy any hope a prisoner may have for rehabilitation.  It is obvious that by imposing cumulative sentences deferred for a lengthy period of time the court could impose, in reality, a sentence more severe than that of life imprisonment.”

Her Honour then concluded:

“The circumstances of the offences to which you have pleaded guilty of incest call for a cumulative sentence.  However the principles to which I refer require me - in order that the sentence is not, in effect, a sentence of life imprisonment or too crushing - to, firstly, reduce that five year sentence to four years and, secondly, make a recommendation that you be considered for parole at an earlier date than you otherwise would be.”

The appellant’s criticism is that the appropriate sentence for the offences of incest would have been a term of seven to nine years imprisonment had it not been for the circumstance that the respondent had already been sent to jail for a long time.  It was submitted that a sufficient allowance for that circumstance would have been a reduction of the sentence to one of six years.  By nominating five years as the appropriate sentence but for the circumstance of the earlier imprisonment and reducing it to four years to take account of that circumstance it is submitted her Honour imposed a sentence that was manifestly inadequate.

It will be seen that the submission focuses upon the punishment awarded to the respondent in respect of his convictions for incest.  Where it is, as here, necessary to have regard to the totality principle (an ungainly appellation, if I may say so, only redeemed by it’s descriptive  brevity) what must be scrutinized is the total period of imprisonment imposed and not a component part of that total.  According to Thomas, Principles of Sentencing, second edition (1979), at pp 56-57:

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is “just and appropriate”. .... (the court) must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.”

This passage was quoted by approval with the High Court in Mill v. The Queen (1988) 166 CLR 59 at 63.  In the same case the High Court approved this formulation of the test:

“At the end of the day, as one always must, one looks at the totality and asks whether it was too much.”

In the present appeal the question is whether the totality of the sentence was too little. 

What has to be evaluated, by answering the question posed, is whether the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all the offences to which the total period is attributable.  See R v. Gordon (1994) 71 A Crim R 459 at 466 approved by McHugh J  in Postiglione v. The Queen (1997) 71 ALJR 875 at 882. 

I add deferentially, as an aside, my opinion that the essence of the principle is not to avoid imposing a “crushing” sentence on the offender but rather to ensure that the aggregate sentence fairly and justly reflects the total criminality of the offender’s conduct.  I respectfully adopt what Ipp J said in Bowman (1993) 69 A Crim R 530 at 542:

“While the subjective effect of the cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance.  The difficulty expressed in Vaitos (1981) 4 A Crim R 238 at 301 by O'Bryan J  with the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigatory force.

The overriding principle is accordingly that the aggregate sentence should fairly and justly reflect the total criminality of the offender’s conduct.”

It follows that for his appeal to succeed the Attorney-General must persuade the court that a term of imprisonment of sixteen years is disproportionate, or manifestly inadequate, to the total criminality revealed by the circumstances of the offences of manslaughter and incest for which the respondent has been punished.  It is not enough for the appellant to demonstrate that, viewed in isolation, a term of imprisonment for four years in respect of the charges of incest would have been inadequate.

The total period of imprisonment, sixteen years, is very substantial.  This court is justified in interfering with the sentence only if it appears manifestly inadequate.  At the end of the day it does not seem to me that the total sentence is not within the permissible range which would fairly and justly reflect the total criminality of the respondent’s conduct.