The Queen v W[1998] QCA 343

COURT OF APPEAL

McMURDO P

PINCUS JA

AMBROSE J

BRISBANE 

DATE 26/08/98

JUDGMENT

THE PRESIDENT:  The applicant pleaded guilty in the District Court at Maroochydore to one count of maintaining a sexual relationship with a circumstance of aggravation - count 1, three counts of unlawful carnal knowledge of a female under 16 years with a circumstance of aggravation - counts 2, 5, and 8, and three counts of wilfully exposing a child to an indecent act with a circumstance of aggravation - counts 4, 7 and 10.

He was sentenced on 16 March 1998.  The offences occurred between 19 July 1996 and 30 November 1996.  The applicant was sentenced to seven years imprisonment on counts 1, 2, 5 and 8 and four years imprisonment on counts 4, 7 and 10, with a recommendation that he be considered eligible for parole after serving three years of those sentences.  The applicant claims the sentence is manifestly excessive.

The applicant was charged jointly with his then de facto, BJS.  She is 26 years of age with no criminal history.  The applicant is now 32 and has prior convictions relating to marijuana use from 1984 to 1986 and a conviction for driving a motor vehicle with a blood alcohol level of .11 in 1988.

BJS was charged with three counts of unlawful carnal knowledge with a circumstance of aggravation - counts 2, 5 and 8, with W, three counts of indecent dealing with a circumstance of aggravation - counts 3, 6 and 9, BJS only, and three counts of wilfully exposing a child to an indecent act with a circumstance of aggravation - counts 4, 7 and 10, with W.

The applicant and BJS lived in a de facto relationship.  BJS had two young children, the youngest of which was fathered by the applicant.  The complainant in respect of all charges was 13 at the time.  Both accused were in a special position of trust towards her as her mother was a close friend of each of them.  The complainant child became very close to BJS when she and her mother lived with BJS and the applicant for a time. 

The complainant referred to the applicant and BJS as "Uncle" and "Aunt" and it was agreed their relationship was like that of godparents.  They were to look after her if anything happened to her mother.  There was some tension between the complainant and her mother and she would find every opportunity to spend time with the applicant and BJS.  She would baby-sit BJS's children; she was offered and allowed to smoke cannabis at their home. 

The first incident occurred as a result of the complainant having missed her school bus and having permission from her mother to stay with the applicant and BJS.  BJS suggested to the complainant that all three engage in sexual activity.  BJS and the applicant returned to the bedroom bringing cannabis and beer which was shared by all three.  The applicant and BJS had sexual intercourse and the complainant was cajoled into joining them in bed naked.  BJS described her as "reluctant and coy".  The complainant attempted to stay near BJS and away from the applicant initially. 

BJS encouraged the activity by placing her hand on the girl's leg.  The applicant had intercourse with the complainant admitting that at first she wanted nothing to do with him.  BJS then performed oral sex on the complainant - count 3, BJS only.  The applicant then performed oral sex on the complainant and penetrated her digitally - this is part of count 1.  The applicant and BJS then performed acts of intercourse and oral sex in front of the complainant exposing her to such acts - count 4.

On another occasion the complainant was baby-sitting BJS's two children.  When the applicant and BJS arrived home the applicant again had intercourse with the complainant - count 5.  Both the applicant and BJS performed oral sex on the complainant.  BJS asked the complainant to perform oral sex on her but she refused.  BJS used a vibrator on herself and on the outside of the complainant's vagina - count 6. 

The applicant's act of oral sex on the complainant is not the subject of a specific count and is part of the conduct subsumed within count 1.  The applicant and BJS performed sexual intercourse in front of the complainant - count 7.  On a third occasion, the applicant and BJS had intercourse in the presence of the complainant - count 8.  BJS again indecently dealt with the complainant - count 9, and the complainant was exposed to the applicant and BJS engaging in sexual intercourse - count 10.

Beset with guilt, BJS confessed the unlawful behaviour to the complainant's mother after separating from the applicant.  A complaint was then made by the mother to police resulting in these charges.  Both the applicant and BJS were cooperative with the police.  The applicant admitted to some 15 occasions of improper conduct with the complainant in the presence of BJS and a further four occasions when he had sex with the complainant in the absence of BJS. The motive for their conduct was BJS's bisexuality and the high cost of hiring a prostitute for group sex.  The defence submitted the complainant had been sexually active prior to this course of conduct and was a willing and eager participant. 

The applicant contends that the recommendation for parole given to him after three years does not sufficiently recognise his cooperation, full admissions and pleas of guilty; that the offences occurred because of BJS's bisexual behaviour; that the interview with police indicates complete and genuine remorse and that the applicant's good work history, lack of prior convictions of a like nature and principles of parity of sentencing in terms of recommendation for parole of his co-accused, require an earlier recommendation for parole.

BJS was sentenced to a total period of imprisonment of seven years with a recommendation for parole after serving 18 months.  The sentencing Judge said he had given this more generous recommendation to reflect her cooperation and her indication of remorse.  BJS's conduct resulted in the offences being discovered and in that way she was, on one view, more cooperative and remorseful than the applicant.

The sentencing Judge specifically took into account the applicant's cooperation with authorities and his plea of guilty.  In addition BJS was, at the time of sentence, a full-time care-giver for her young children aged three years and six years.  Whilst she had organised short-term care for them with her mother there were long-term problems with that arrangement.

It is not submitted by the applicant that the sentence of seven years imprisonment is outside the range appropriate for offences of this type.  The only issue is whether the sentencing principle of parity of sentences between co-accused requires an alteration to the applicant's recommendation for parole to make it consistent with or closer to that given to BJS. 

Mere disparity between the sentences imposed on co-offenders is not of itself a ground for intervention by an appellate Court.  The difference between sentences to warrant the intervention of the Court must be such that the disparity engenders a justifiable sense of grievance on the part of the applicant on whom the heavier sentence is imposed, or the disparity must give the appearance that justice has not been done - see Lowe v The Queen (1985) 154 CLR 606, Gibbs CJ at 610.

The learned sentencing Judge stated his reasons for imposing an earlier recommendation for parole in BJS's case as her sense of contrition in admitting the offences to the complainant's mother.  Without that admission the offences may never have come to light so that her cooperation and remorse were seen by him as greater than that of the applicant.  In addition BJS had young dependent children. 

The applicant was involved in more acts with the complainant on the four occasions when BJS was not involved.  The acts committed by the applicant were, on one view, more serious and invasive in that they involved penetration of the complainant with his penis and fingers.  On the other hand, these offences only came to be committed because of the initial instigation of BJS who was very close to the complainant.  BJS's abuse of trust seems greater than that of the applicant in that she was clearly particularly close to the complainant.  After that initial breach of trust, however, the applicant certainly benefited and took advantage of the complainant on more occasions than did BJS.

When all the circumstances are reviewed the disparity between the recommendation for release on parole for BJS after serving 18 months of her term of imprisonment and the recommendation for release on parole for the applicant after serving three years of his term of imprisonment, does suggest a justifiable grievance.  It does not reflect the benefit that should have been given to the applicant for his plea of guilty in saving the complainant girl from the trauma of giving evidence both at committal and at trial and the remorse shown by his cooperation. 

There are, however, some grounds for maintaining some distinction between the two offenders.  It is my view that in all the circumstances a recommendation for parole for the applicant after serving two years of his sentence would be just and would not leave him with a justifiable sense of grievance.

I would allow the application for leave to appeal against sentence.  I would vary the recommendation for release on parole after three years to a recommendation for release on parole after serving two years of his term of imprisonment otherwise I would confirm the sentence below.

PINCUS JA:  The decision of this Court in Morrison (CA No 391 of 1997, 26 June 1998) adopts a view which in the present case and indeed generally produces the result that, on disputed issues, the onus is on the Crown to prove facts tending to augment the sentence.  One of the matters which has troubled me in considering this case is that there was to a substantial extent a difference between the versions placed before the primary judge, as to the circumstances in which the offences occurred - in particular, the extent to which the complainant was a willing and indeed (it was suggested on the defence side) eager participant. It is not absolutely clear what view the learned primary judge reached on these questions.  It does not appear to me, however, that it is necessary to take that aspect of the matter further, because I am in agreement with the order proposed by the President.

AMBROSE J:  I agree with the order proposed and the reasons advanced to support that order given by the President and have nothing useful to add.

THE PRESIDENT:  The orders are:  the application for leave to appeal against sentence is allowed; the sentence below is varied by varying the recommendation for release on parole after serving three years imprisonment to one of a recommendation for release on parole after serving two years imprisonment.  Otherwise the sentence below is confirmed.