Attorney-General v M[1998] QCA 242

COURT OF APPEAL

de JERSEY CJ

THOMAS J

DERRINGTON J

CA No 155 of 1998

THE QUEEN

v.

M Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

DATE 15/07/98

JUDGMENT

DERRINGTON J:  This is an appeal by the Attorney-General against a sentence of six years' imprisonment with a recommendation for early release on parole after two years.

The grounds of the Attorney's application are:

(a)  The sentence fails to reflect adequately the gravity of the offence generally and, in this case, in particular 

(b)  it failed to take sufficiently into account the aspect of general deterrence and

(c)  the sentencing Judge gave too much weight to factors going to mitigation.

There were 20 counts of indecent dealing with a girl under the age of 16 years and 23 counts of indecent dealing with a girl under the age of 14 years. These offences, together, covered occasions of sexual abuse of the three daughters of the respondent's de facto wife over a six year period from 1981 to 1987.

The respondent was then 42 years of age when the abuse began. He is now 59 years. In each case, the interference ceased only when the victim left home at the age of 16. At times he was dealing with more than one child during the same period. When she left home, the eldest child informed her mother of the offences against her and the mother then tried to protect her other daughters by putting a lock on the door of their room, but the respondent defeated this by climbing through a window and he persisted with his offences.

The circumstances were particularly bad because he was in loco parentis of the children and abused his position of trust and authority over them. His conduct caused them appalling fear and distress at the time and has left them with serious problems of personal adjustment which, apart from sexual problems, applies also to their feelings relating to family matters.

Although his offences fell somewhat short of rape, the respondent's conduct was gross and extensive, involving some degree of depravity and degradation and some physical pain.

It is alleged that he infected one child with a sexual disease but that was not firmly established as a matter of proof, and it does not particularly affect the result in this matter.

Although he finally pleaded guilty to the offences and there was no cross-examination of the victims, that plea came only during the course of the trial relating to the first child after she had given evidence. Until that time, the victims would all have suffered the heavy stress and tension of anticipation of the ordeal of giving evidence and of being cross-examined about what manifestly were matters that caused them deep shame.

In mitigation, it was accepted that the respondent had been a hard-working man who had supported the victims and their mother and that, with the exception of some minor offences in 1957, he had had no criminal history.

This appeal is complicated because in the sentencing hearing the learned Crown Prosecutor conceded to the learned sentencing Judge that the appropriate sentence was that which was in the end imposed. It is argued by the applicant here by reference to authority that since the issue is one of a length of term of imprisonment rather than whether there should be imprisonment at all, there would be no disadvantage to the respondent in the allowance of an Attorney-General's appeal despite those concessions of the Crown Prosecutor.

(R v. Conquest, CA No 395 of 1995; R v. McKillop, CA No 2637 of 1997.)

It is argued for the respondent that these statements were made obiter, but even if that were so they are plainly right, although fairness to a respondent in a such case is, of course, an important factor. But such conduct by the Crown Prosecutor could not deprive this Court of the capacity to correct any misguidance of the Court below in a suitable case where justice demands that.

The first step is to determine what would have been a proper sentence without the interference of any such factor, and then to approach the matter with regard to the effect of the Crown Prosecutor's concessions.

The correct standard is that applying at the time, which was somewhat less severe than it is now. The offences were particularly grave and persistent within the range of the offence charged, particularly because of the terrible effect upon the victims and because of the position of the respondent.

If all the mitigating factors are taken into account, it must still be plain that the length of time during which this behaviour occurred, the gravity of the results and the persistence of the respondent called for a very heavy sentence indeed.

Taking into account the concession of the learned Crown Prosecutor, the sentence imposed below was still outside a suitable sentencing discretion. If that concession had not been made, the sentence might well have even been more than that which I shall propose but, having regard to that, a suitable sentence should have been a sentence of imprisonment for seven years for the major offences. This has regard to the totality of the enterprise and avoids the artificiality of cumulative sentences in these circumstances. The consideration that should have been afforded to the respondent by reason of his late plea of guilty and any other factors that might have assisted him in that respect should have led to a recommendation for parole after three years of the sentence.

The period of seven years' imprisonment is at the very top of the possible sentencing that is available to the Court. It is justified in this case because of the totality of the seriousness of the offences, which could hardly have been worse within the range of the sentences charged, the continuous nature of the offences, and the number of children involved, particularly having regard to the serious consequences to them.

Accordingly, I would uphold the appeal, set aside the sentence below and, in respect of the counts of indecent dealing with a girl under the age of 14 years, impose a sentence of seven years' imprisonment in respect of each count with a recommendation that the respondent be considered for parole after three years of that sentence.

In respect of the other counts of indecent dealing with a girl under the age of 16 years - because the maximum in that case is five years - the sentence of the Court should be that the respondent should be sentenced to five years' imprisonment.

There should be no recommendation for parole on each count.

THE CHIEF JUSTICE:  I agree. I stress that I would seriously have entertained increasing the longer of those sentences beyond seven years were it not for the position taken by the Prosecutor below.

Mrs Clare, who appeared for the Attorney-General, sought cumulative terms and that course would have been open to the sentencing Judge.

As my brother Derrington has pointed out, the seven years was the maximum for the individual instance of that subject offence at the time. This case warranted that maximum, subject to the possible effect of extension of the term to be served through the imposition of a cumulative term which, as I have said, would have been open.

I, for my part now, am disinclined to impose cumulative terms simply because of the concession made below. This Court is not absolutely hamstrung by such a concession but it will, nevertheless, necessarily be a matter of significance at this stage.

The case does, therefore, offer another illustration of the importance of the considerable circumspection necessary in the selection of appropriate ranges to be submitted to a sentencing Judge by a Prosecutor.

Allowing for that position taken below, it would now, in my view, be unjust for this Court to elevate the effective sentence beyond seven years with a recommendation with relation to parole after three.

THOMAS J:  Counsel for the Attorney-General, Mrs Clare, has persuaded me that the circumstances of the present case are overall more serious than those in Bennetto (CA No 367 of 1997, 2 December 1997), despite the fact that there are fewer complainants in the present case. A more serious sentence than that imposed in Bennetto was called for. 

As the sentences under review were slightly less than those in Bennetto, they should be increased. The appropriate result, consistent with sentencing patterns approved by this Court, is that proposed by Mr Justice Derrington.

I agree in the orders that are proposed.

THE CHIEF JUSTICE:  The orders of the Court are those indicated by Mr Justice Derrington.