The Queen v EC and RC[1998] QCA 334

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 269 of 1998

C.A. No. 270 of 1998

Brisbane

[R. v. EC & Anor.; ex parte A-G]

THE QUEEN

v.

EC

and

RC

Respondents

EX PARTE: ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Thomas J.A.

Shepherdson J.

Jones J.

Judgment delivered 23 October 1998

Judgment of the Court.

ATTORNEY-GENERAL’S APPEALS AGAINST SENTENCES DISMISSED.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 23 October 1998

1. These are appeals by the Attorney-General against sentences against the male respondent of 12 years imprisonment with consideration of parole after four and a half years, and against the female respondent of seven years imprisonment with consideration of parole after three years.  Counsel for the Attorney-General contends that the sentences are manifestly inadequate.

2. The respondents were guilty of extremely serious sexual offences committed upon two young girls over an extended period by their stepfather (the male respondent) and by their mother (the female respondent).

3. The male respondent was guilty of seven counts of rape, three of unlawful carnal knowledge, one of indecent dealing with a girl under 14, one of indecent treatment of a child under 16 and one of maintaining an unlawful sexual relationship with a child over an extended period of seven years.  The female respondent was guilty of four counts of rape and one of indecent dealing with a girl under 16.

4. The male respondent is now 68 years old and the female respondent 58 years old.

5. The male respondent's offences spanned a seven year period commencing in 1985 when his stepdaughter I was aged eight and his stepdaughter A was aged six.  The female respondent's actions involved only her daughter I and spanned the first two years of the above period.

6. The male respondent's criminal history is not particularly relevant.  He has a number of convictions for vagrancy and related offences especially between 1965 and 1970.  Some of these had resulted in short terms of imprisonment.  However there are no particularly serious offences in his history and certainly nothing of a sexual nature.

7. The female respondent had no previous convictions.

8. The circumstances reveal unusually depraved and disturbing conduct by both respondents.  They were married between 1962 and 1964, then separated and re-married in 1985.  In the interim the female respondent gave birth to two daughters (the two complainants) to another man.

9. The offences of the female respondent involved her assisting the male respondent to sexually abuse her daughter I over a two year period when I was aged between eight and 10.  The four rapes to which she was a party occurred in the marital bed.  The female respondent on such occasions would masturbate herself to climax while the male raped her daughter.  During some of these episodes she rubbed I’s chest and genitals and I was made to fondle her mother.  Sometimes the male respondent joined in the masturbation of the female respondent.  In another incident I was made to masturbate herself in front of the respondents and to touch her mother's breasts.  The female respondent was breathing heavily and began kissing the male before they dismissed I from the bedroom.  On other occasions I was required to watch the respondents copulate.

10. After two years the female respondent ceased to be involved although she was aware that offences were continuing by the male respondent.  He continued frequent acts of intercourse with I both before and after commencement of her menstruation.

11. Over the same period the second complainant A was indecently dealt with by the male respondent on numerous occasions initially involving his touching her genitals but progressing to her giving him oral sex including swallowing his semen.  Sexual intercourse also took place on numerous occasions.

12. The sentencing remarks of the learned judge reveal a full understanding of all relevant matters.  Indeed no error or omission was suggested by counsel for the Attorney-General, the appeals being confined to the submission that in the result the sentences were manifestly inadequate.  His Honour considered that the offences were of gravest kind, observing that the female respondent as the mother and the male respondent as the father figure should have been the protector of these girls.  Instead they were depraved abusers.  The girls were corrupted and robbed of an innocent childhood.  The male respondent's conduct was considered to be much worse than the female's because it involved corruption of both children over a much longer period.  The need was noted for taking into account his age and health, balanced against the seriousness of the conduct, and the public outrage against such offences.  He found the female respondent's involvement to be totally repugnant and a breach of a mother's most basic instinct.  His Honour also noted that the pleas of guilty, although late, had spared the complainants the stress, and the State the cost, of a trial.

13. There is little doubt that the victims have been left with serious long-term emotional problems.

14. Counsel for the Attorney-General underlined the seriousness of the circumstances noting particularly the following circumstances in the case of the male respondent -

• the fact that two children were involved
• the seriousness of the pre-pubertal rapes
• the lengthy period of the abuse
• the nature and depravity of the rapes
• violation of the position of trust.

15. In the case of the female respondent submissions included that -

• she took sexual pleasure from the rape of her daughter
• she maintained until the very last moment a false claim of having acted under duress.  This resulted in cross-examination of a complainant at committal on that issue and it was only withdrawn during the sentencing proceedings when the judge indicated that he would not act on such an assertion unless the respondent substantiated it with evidence.

16. The circumstances are such as to require care from the court against over-reaction, and for that matter against leaning over backwards to avoid over-reaction.  His Honour adjourned the matter for consideration for some days before delivering carefully considered reasons.

17. The serious health problems of the respondents are unusually acute in these cases and when taken in conjunction with the ages of the respondents these must be borne in mind in the determination of an appropriate sentence.  The male respondent suffers from serious cerebrovascular problems, eye problems (bi-lateral cataract extraction and lens implants), chronic obstructive airways disease and a host of other physiological problems.  He has serious problems including spinal canal stenosis and has had decompression laminectomies at L3/4 and L4/5 and suffers from multi-level disc degeneration.  He requires a walking aid which has a seat attachment as he must sit every 20 to 30 metres when walking.  It is fair to say that he has very serious health problems which require constant medical supervision and assistance and that he will have greater difficulties in prison than most others.

18. The female respondent also has serious medical problems although not apparently as acute as those of the male respondent.  She suffers from acute diverticulitis and cholecystitis.  She has a past history of cervical cancer and more recently of breast cancer which requires close surveillance.

19. The learned Crown prosecutor submitted to the learned sentencing judge that the appropriate range of sentence for the male offender lay between 12 and 16 years and that his Honour would be entitled to make a recommendation for parole "consistent with what is said by the Court of Appeal having regard to their ages and the health problems".  It can be seen then that the sentence imposed on the male respondent was at the lower end of what was considered by the prosecution to be appropriate in his case.  In R. v. Tricklebank [1994] 1 Qd.R 330 McPherson J.A. observed that:

"The sentencing process cannot be expected to operate satisfactorily, in terms of either justice or efficiency, if arguments in support of adopting a particular sentencing option are not advanced at the hearing, but deferred until appeal."

(at 338)

The Attorney-General is not finally bound by suggestions such as those made by the Crown prosecutor at trial in this instance.  It was observed in R. v. Conquest;  ex parte Attorney-General C.A. 395 of 1995, 19 December 1995 that:

"... the Court has the right and duty, if it considers the submissions of the Crown Prosecutor to be unrealistic to impose the sentence which it thinks appropriate.  Even an undue concession by a Crown Prosecutor during the sentencing process is not necessarily fatal to an appeal by the Attorney-General (Ascerbi (1983) 11 A Crim R 90, 92) although it is a factor militating against the success of such appeals (Malvaso (1989) 168 CLR 227, 240;  R v. Tait (1979) 46 FLR 386, 388;  R v. Boult ex parte Attorney-General CA 458 of 1993, 17 March 1994).  The issue in the present case is one of the quantum of a term of imprisonment, rather than one whether custody should be served at all.  It is impossible to see how allowance of the present appeal would disadvantage the respondent to any greater extent than that to which any other respondent is disadvantaged by the allowance of an Attorney-General's appeal, or how any statements of the Crown Prosecutor could be regarded as responsible for any ultimate disadvantage to the respondent."

20. These are sentences, which when imposed on persons with serious medical problems, aged respectively 58 and 68, are by no means light sentences.  However the depravity of the conduct involved might at first glance suggest that a more severe response was called for.  In this respect it is timely to recall the following statement of this Court in H:^[1]

"There is currently a high level of community outrage against persons who commit this kind of offence.  It is proper that the court be aware of this and take it into account in framing sentences, at the same time standing firm against any lynch mentality or vigilante attitude that would have the respondent treated as less than a human being".

21. Before this Court should interfere with such sentences it would be necessary to show that the sentencing judge erred in principle, either because an error was discernable or because of manifest inadequacy of the sentences.^[2]  In the present case no error is suggested in the learned judge's approach and it is to be noted that the sentences are consistent with those made on behalf of the Crown prosecutor to his Honour.

22. It is not generally in the interests of the administration of criminal justice to subject prisoners to a second jeopardy on the basis of a better argued case, although, for reasons mentioned above, this Court has the jurisdiction to intervene in an appropriate case.  In any event, further reference to the cases most relied on before us fails to suggest that the learned Crown prosecutor below presented any unrealistic range to his Honour^[3] and it is difficult to hold that this Court should now alter the sentence imposed on the male respondent.

23. So far as the female respondent is concerned her conduct, although equally revolting, was persisted in for a considerably less period, and the primary perpetrator was the male respondent whose activity continued for seven years.  Counsel for the Attorney-General submitted that she  should have been sentenced to 10 years or more.  We agree that a sentence of 10 years would have been within range, bearing in mind the repetition of the activity.  But it does not follow that the sentence actually imposed was out of range and bearing in mind the health factors to which reference has been made and the fact that she is entitled to some slight consideration for her plea of guilty.

24. In short the matter was adequately canvassed before the learned judge who took time to consider each matter and returned with what can only be called moderate sentences at the lower end of the available range.  It would have been open to his Honour to have reacted more severely, but we cannot say that this sentence reveals error or manifest inadequacy and it is not appropriate that this Court should now interfere.

25. The appeals should be dismissed.