The Queen v R[1998] QCA 268

THE CHIEF JUSTICE:  The appellant appeals against his conviction on a charge of maintaining an unlawful sexual relationship with a child with a circumstance of aggravation.  He was also convicted on other counts in relation to the same child, offences of unlawful carnal knowledge and indecent dealing. 

The circumstance of aggravation on the maintaining charge, which was count 12, was his having had unlawful carnal knowledge of the child.  That particular instance of unlawful carnal knowledge was also the subject of a separate count, count 5, but on that count the appellant was acquitted.  The Crown had formally particularised that instance of unlawful carnal knowledge, count 5, as being the circumstance of aggravation attending the maintaining charge in count 12.

The Crown concedes that the conviction on the count of maintaining so far as it extends to the circumstance of aggravation therefore cannot stand.  I would allow the appeal against conviction, quash the conviction in respect of count 12 for maintaining an unlawful sexual relationship with a circumstance of aggravation and enter a conviction on that count of maintaining an unlawful sexual relationship simpliciter.

The appellant applies for leave to appeal against the sentence of six and a half years imposed in respect of count 12.  To my mind, the learned sentencing Judge apparently sought to indicate that he was sentencing in respect of count 12 on the only truly applicable basis - that is, in light of the acquittal on count 5 - as a conviction for maintaining an unlawful sexual relationship without the alleged circumstance of aggravation.

I say "sought to indicate" because he has not done so with perfect clarity.  He said, prior to commencing his sentencing remarks:

"He has been acquitted of count 5 but really I will indicate in my reasons that is how I will approach it.  It may assist the Court of Appeal."

And then, when sentencing, said:

"I intend to proceed on the basis you have been convicted of the alternative in count 11.  I have to take into account you were acquitted of count 5 of unlawful carnal knowledge."

It is a pity the learned Judge did not say that he was sentencing as if there had been a conviction for maintaining simpliciter.  Mr Farr, who appeared today for the appellant and applicant, very properly informs us that it was his clear impression that the learned Judge was sentencing for maintaining simpliciter.  That is the position also taken before us for the Crown and I am prepared to proceed on that basis.  Counsel for the applicant submits that five and a half years would have been an appropriate sentence for maintaining simpliciter. 

The applicant was a 53 year old man with no previous convictions.  He systematically corrupted a girl over a period covered by the ages eight to 13 years.  The applicant was a boyfriend of the complainant's mother and a father figure to the complainant. 

The conduct included his digital penetration of the vagina, oral sex with ejaculation into the complainant's mouth, vaginal intercourse, urination by the complainant into the applicant's mouth at his insistence and showing the complainant a pornographic movie featuring bestiality.  He made a threat in order to influence her not to reveal his conduct. 

The learned Judge pointed out that the applicant showed no remorse; that he had subjected the complainant, who was a vulnerable child in a vulnerable family situation, to degrading and corrupting conduct; that her examination during the evidence of the trail was traumatic; and that although the applicant had no prior convictions that is not unusual in cases like this.

Were the maximum penalty applicable at the time of the sentencing the current maximum, which is 14 years - that having become the maximum as from 1 July 1997 - I would have no difficulty with the sentence which was imposed.  However, it appears that the Judge was under a misapprehension about the applicable maximum.  That emerges from what he said prior to imposing the sentence having been urged by Mr Farr that the applicable range for - as Mr Farr now informs us he meant - maintaining with the circumstance of aggravation would be six perhaps up to seven years but not beyond, to use his terms.  That led to His Honour's statement:

"I don't need to be convinced.  The range is somewhere between six to eight."

Against a maximum of seven years His Honour was plainly, therefore, in error which may explain why he - against the truly applicable maximum of seven - selected six and a half years which was very close to that maximum.  I am satisfied that in these circumstances we should regard the sentencing discretion as having miscarried so that we are now in a position of having to re-sentence the applicant.

There is one other matter to which I should refer.  Mrs Clare, who appeared for the Crown, relied on Young, Court of Appeal 23/97, where a sentence of five years with no parole recommendation was upheld.  That offender had pleaded guilty on an ex officio indictment and was remorseful; circumstances which immediately distinguish that case from this.  The victim in that case had been dealt with over the ages of eight to 14 years. 

The conduct there was comparable with the conduct here. Allowing for the differences between those circumstances and these to which I have already referred - that is, the plea of guilty, the remorse and the ex officio indictment, it may be felt that the six and a half years applied here would be justifiable, a sentence of five years, as I have said, being imposed in Young.

I want to refer to a statement made towards the end of the leading judgment in Young in these terms:

"It does seem to me that the cases of S and B do indicate that the upper end of the range is certainly around seven years with a recommendation for parole after serving three."

The form of that expression is a little concerning because seven years was the then maximum for the offence with which the Court was dealing in Young.  Having said that, however, I return to the question of the sentence which, in my view, should have been imposed here against a true realisation of the applicable seven year maximum.

Allowing for the gravity of the conduct, the effect on the complainant, the trauma of the trial and the absence of remorse, I am satisfied that an appropriate sentence in this case was five and a half years' imprisonment on count 12.

As I say, had I not been satisfied that the learned Judge was proceeding under a misapprehension I would have acceded to Mrs Clare's contention that to interfere in this case would involve undue fine tuning.  But since we now have to exercise the discretion afresh I am convinced that a sentence of five and a half years against a maximum of seven does nevertheless appropriately reflect the grave view taken by the Judge, and rightly taken, of this conduct and the other circumstances of the case especially the applicant's reprehensible absence of remorse.

THE CHIEF JUSTICE:  My brother Pincus has drawn my attention to the fact that the way the appellant has drawn the notice of appeal at page (i) of the record has excluded any appeal against sentence.  Have you noticed that, Mrs Clare?

MRS CLARE:  No, I didn't, I'm sorry.  I was a little confused by that but I just took it in view of the-----

PINCUS JA:  He's crossed out "sentence" and put in "conviction".

MRS CLARE:  Yes. 

THE CHIEF JUSTICE:  Are you content if we extend the time for-----

MRS CLARE:  Yes.  In view of the fact that the conviction has been quashed and a new verdict substituted-----

PINCUS JA:  We would have to do it anyway.

MRS CLARE:  Yes.

THE CHIEF JUSTICE:  I would extend the time as necessary to facilitate the making instanter of an application for leave to appeal against sentence. 

THE CHIEF JUSTICE:  The orders I would make, so that it is clear, are these:

.Extend the time as necessary for the purpose of the making of an application for leave to appeal against sentence in respect of count 12.

.Allow the appeal against conviction, quash the conviction in respect of count 12 for maintaining an unlawful sexual relationship with a circumstance of aggravation and enter a conviction on that count for maintaining an unlawful sexual relationship simpliciter.

.Set aside the sentence of six and a half years' imprisonment imposed in respect of that count.

.Order that the applicant be imprisoned on that count for five and a half years.

PINCUS JA:  I agree.

DERRINGTON J:  I agree.

THE CHIEF JUSTICE:  Those are the orders of the Court.