The Queen v S[1998] QCA 44

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A.  No. 373 of 1997

Brisbane

[R v S]

THE   QUEEN

v

S

(Applicant) Appellant

de Jersey CJ

Pincus JA

Muir J

Judgment delivered 20 March 1998

Separate reasons for judgment of each member of the Court; separate dissenting reasons of de Jersey CJ.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.  APPEAL ALLOWED.  SENTENCES IMPOSED BELOW IN RESPECT OF PROCURING A CHILD TO ENGAGE IN CARNAL KNOWLEDGE (COUNT 4) AND RAPE (COUNT 5) SET ASIDE AND IN LIEU THEREOF SENTENCES OF NINE YEARS IMPRISONMENT IMPOSED, TO BE SERVED CONCURRENTLY.  OTHERWISE CONFIRM THE SENTENCES IMPOSED BELOW.

CATCHWORDS: APPLICATION FOR LEAVE TO APPEAL against 12 year term of imprisonment of 67 year old man for rape and procuring a child to engage in carnal knowledge - whether manifestly excessive.

K (C.A. No. 269 of 1993, 22 October 1993)

Walker (C.A. No. 349 of 1991, 22 June 1992)

G (C.A. No. 22 of 1994, 31 March 1994)

Cobiac v. Liddy (1969) 119 C.L.R. 257

Yates [ 1985] V.R. 41

Hunter (1984) 36 S.A.S.R. 101

Cheng Wah [1972] Q.W.N. 45

Counsel:  Mr P. Goodwin for the applicant/appellant

Mr P. Ridgway for the respondent

Solicitors:  Legal Aid Queensland for the applicant/appellant

Director of Public Prosecutions (Queensland) for the respondent

Hearing date:  5 November 1997

REASONS FOR JUDGMENT - de JERSEY CJ

Judgment delivered 20 March 1998

The applicant was convicted by a jury on two counts of attempted rape (rape itself having been charged), for which he was imprisoned for 5 years; one count of procuring a child to engage in carnal knowledge, and one count of rape, for each of which he was imprisoned for 12 years. The terms of 5 years and 12 years are to be served concurrently. He seeks leave to appeal against sentence, on the ground that the sentences are manifestly excessive, because the sentencing judge “gave insufficient weight to my age and personal circumstances”.

The applicant was a 67 year old man who owned a motor mower repair shop in North Ipswich. The complainant was aged 10 years at the time of the first offence of attempted rape, and 11 years at the time of the other offences. (She was born on 13 November 1985.)

At the time of the first count, the complainant was doing odd jobs for the applicant, helping with the repair of lawnmowers. The complainant said that on numerous occasions the applicant would take her into his house next door and remove his clothes. On the particular occasion the subject of this count, the applicant lay the complainant on a bed and applied some type of cream to her genital area. The complainant said the applicant “had his dick in there and had sex with me once”. He was charged with rape in respect of this incident, but the jury returned a verdict of guilty of attempted rape. The complainant made a complaint to the police about this incident on 26 November 1996, but subsequently recanted at the insistence of her mother, the co-offender P.

Count 2 was another charge of rape, in respect of which the jury likewise returned a verdict of guilty of attempted rape. This charge related to an incident on 20 January 1997. The complainant went after school to the applicant's shop and did some work, then next door to clean his house. She then went to sleep on a bed, waking to find her clothes had been removed with the applicant on top of her, his penis inside her vagina. She told the applicant to “fuck off”. The applicant removed his penis and ejaculated on her chest. He then “put it back in me”. The complainant said she told her mother, P, about what had happened, but “because then he offered mum four, four hundred dollars this time as well as last time, and then ... she dropped the charges because of how he offered the money ...”.

Counts 4 and 5 (procuring a child to engage in carnal knowledge, and rape) relate to incidents which occurred two days later, on 22 January 1997. The complainant told her mother that she did not want to go to the applicant's house. P told the complainant that she had to go up, to earn $20, as they needed the money. The complainant protested, telling her mother: “if you want the money you do it yourself ... I'm only eleven, he's a lot older”.

The complainant's father, the co-accused B, drove the complainant to the applicant's house. B told the complainant: “Go like your mum said, you've got to do it, because we need the money”, and “he sat outside for half an hour while he did it to me, and then I got twenty dollars and gave it to my dad.”.

Once inside the house the complainant was carried to a bed and undressed, and the applicant had sexual intercourse with her. The complainant told the applicant to “stop it”, but the applicant continued until he withdrew his penis and ejaculated on her chest. After that the applicant gave the complainant $20, which she took to her father outside, waiting in the car. B told the complainant: “since you're here you can stay for the night”. The complainant returned to the house, and a short time later made a complaint to a lady by the name of N, who had come to the applicant's house. N examined the complainant's genital region a short time later and saw that it was red and swollen, with trickles of blood on the complainant's pants.

The complainant was subsequently examined by a doctor, who observed a number of abrasions in the groin area and within the vagina itself.

The judge rightly put this conduct “at the epicentre of human depravity”, obviously warranting a severe sentence. The sexual exploitation of a vulnerable 10 to 11 year old girl by a much older man - 67 years - with the connivance of her parents, really defies sufficiently severe condemnation. The applicant was, I should add, remorseless.

The judge noted that the effects of the conduct on the complainant had been “catastrophic”. She is “borderline intellectually retarded”. She had suffered previously sexually at the hands of an older male. The psychological opinion was in these terms:

“Her prognosis in the future is exceedingly poor due to the traumatic nature of the abuse and her current circumstances. As the abuse is likely to interfere with her personality development, affect regulation impulse control and interpersonal relationships she is at a much higher risk of experiencing psychiatric problems as an adult and will require ongoing therapy throughout her teenage years and adulthood.”

The judge described her as “a seriously disturbed and damaged little girl”, and that was substantially the result of the applicant's conduct. She had effectively, he observed, “lost her entire family”.

The submissions in support of the application concentrated on three areas: first, that the judge declined to embark upon an apportionment of the complainant's “psychiatric disorders”, as between this and other contributing causes; second, that he made insufficient allowance for the absence of substantial physical injury to the complainant; and third, that he took inadequate account of the applicant's advanced age.

As to the first of those matters, the judge observed that “the most substantial source of her problems”, as confirmed by the reports, was the applicant's offence. The judge is not to be seen as having penalized the applicant for all of the complainant's difficulties. As to the second matter, the enormity of the child's resultant psychiatric and psychological problems and potential problems referable to these offences plainly overwhelmed any mitigating effect a limitation on  physical injury might otherwise have had. As to the third matter, the judge said:

“You, S, are 67 years of age and have no previous relevant convictions. You are in good health. Obviously your age, given that a lengthy gaol term must follow, is a factor that enables me to mitigate somewhat the head sentence I would otherwise have imposed.”

That was a legitimate observation. In my opinion, the applicant has not demonstrated error of approach with respect to any of the particular matters raised.

Is the 12 year sentence nevertheless manifestly excessive? In my opinion no. It fell within the limits of the appropriate sentencing discretion. We were referred to a number of cases which support that conclusion: G C.A. 22 of 1994, Climas C.A. 99 of 1989 and Walker C.A. 349 of 1991. In K C.A. 269 of 1993, the Court analysed sentences imposed for the rape of children. There, a father was convicted of the rape of his 5 year old daughter, leading not surprisingly to major psychological problems in the child. A 14 year sentence was reduced to 11 years.

Davies JA and Thomas J made these observations in K:

“It is apparent that sentences of more than ten years tend to be accompanied by aggravating features such as the commission of concurrent offences such as sodomy, or abduction or deprivation of liberty, or circumstances such as a brutal attack, the use of weapons, or attacks on very old women or very young girls, or cases where the authority of a father or person in loco parentis has abused the trust of a child.”

A moment's reflection confirms the existence here of aggravating features of a most grotesque kind. Those features may be summarized as follows. The offences involve the sexual exploitation of a mere 10 or 11 year old girl who was already emotionally vulnerable. The offender was an elderly (67 year old) man. He was in a position of some authority over her in a sense, as her casual odd jobs “employer” and a “friend” of her parents. Even more shamefully, this was done - as the applicant must be taken to have appreciated - with the connivance of her parents, grossly disreputable people. Their motivation was absolutely reprehensible: the applicant's personal gratification and their own cheap, financial profit.

When the shocking moral depths of this experience are acknowledged, the sorts of fine features now emphasized for the applicant pale into insignificance. In my opinion, the effective sentence of 12 years imposed here was perfectly appropriate, certainly not manifestly excessive. The Courts must not be so constrained in the sentencing process as to deny them the right to mark strong disapproval when confronted with shocking conduct like this.

I would refuse the application.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 373 of 1997.

Brisbane

Before de Jersey C.J.

Pincus J.A.

Muir J.

[R v. S]

THE  QUEEN

v.

S

(Applicant) Appellant

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 20 March 1998

The circumstances of the offences of which this applicant was convicted are set out in the reasons of de Jersey C.J.  Of the decisions principally relied on by the Crown in support of the sentences imposed below, the two most recent are Walker (C.A. No. 349 of 1991, 22 June 1992) and R G G (C.A. No. 22 of 1994, 31 March 1994).  In each case this Court allowed an appeal against sentence.  In Walker the victim was an 8 year old girl, the offender a 36 year old man with a lengthy criminal history, but no history of violence or sexual offences.  He seems to have been sentenced on the basis that the court took into account that he had raped the complainant on occasions other than the single one which was the subject of the conviction.  The court said that the offence occurred without any violence, “except that the act of intercourse hurt the victim, though not permanently”.  It was thought likely that the complainant's experiences at the hands of the applicant had caused her some “lasting and perhaps permanent disturbance”.  Pre‑sentence custody of 8 months was taken into account and a sentence of 14 years imposed below was reduced to 10 years.  

In R G G, an Attorney-General's appeal, a sentence of 16 years for a number of sexual offences with a recommendation for parole after 4 years and 6 months was altered by deleting that recommendation.  However, the case was representative of a quite different stratum of evil-doing than the present and is of no real assistance.  K (C.A. No. 269 of 1993, 22 October 1993) is of importance mainly because of its useful discussion of cases of rather similar heinousness.  In K, a sentence of 14 years imprisonment for rape of a 5 year old daughter of the appellant was reduced to 11 years.  The case appears to be worse than the present, in that the victim was substantially younger and the court in K referred to the appalling fact that K had “apparently encouraged a neighbour of his” to rape the child also.  However, as to the latter point the court observed that since involvement in the rape by the neighbour had not been charged it could play only a limited part in determining the sentence;  precisely what part was not stated.  My impression, having regard especially to the discussion in K, is that the present is a high sentence. 

One complaint made by counsel for the applicant, Mr P J Goodwin, was that the judge did not make sufficient allowance for the applicant's age;  he will serve until he is nearly 80, if he obtains no remission or parole.  When this was discussed before us, Mr Ridgway, for the respondent, appeared to invite us to consider the matter on the basis that the applicant was likely to spend only 6 years in custody.  That does not appear to me to be a safe assumption.  The length of time the applicant will spend in custody depends on factors which are rather unpredictable:  how successful he may be in providing evidence of the likelihood that he will not re-offend,  the current policy with respect to the grant of parole or remission, and other matters.  Of course, there must be a substantial chance that these will turn out to be, for the applicant, life sentences.  There is authority in the High Court referring briefly to the relevance of age in sentencing:  Cobiac v. Liddy (1969) 119 C.L.R. 257 at 265;  it appears to me that this applicant's age (67) is a mitigating factor.  In Yates [1985] V.R. 41, a five-judge Court considered the proper sentence for a man of about 68 who had been guilty of dreadful offences on young boys.  A sentence of 10 years with a minimum term of 8 years was fixed;  that may be compared with the non-parole period of 6 years in the present case.  In Yates the court said in effect that because of the possibility of remission the period of incarceration might be just over 4 years.  After referring to authority for the proposition, which the Court accepted, that the prospect of release on parole or the chance of earning remissions should be ignored in fixing the sentence, and the undesirability of imposing a “crushing sentence”, the court went on:

“The word 'crushing' in this context connotes the destruction of any reasonable expectation of useful life after release.  Acting upon the principle that he might have to serve the whole of the term imposed, the sentence is in our opinion clearly crushing”. (48)

It was reduced to 7 years, with a minimum term of 5 years.

In Hunter (1984) 36 S.A.S.R. 101, dealing with a 74 year old offender, King C.J. regarded as relevant “the fact that each year of the sentence represents a substantial  proportion of the period of life which is left to him”.  In Queensland, advanced age was considered in Cheng Wah [1972] Q.W.N. 105.  There, the offender was 69;  he had been convicted of importing heroin.  Hanger C.J. with whom Skerman J. agreed, reduced a term of 5 years to 3 years;  his Honour remarked:

“As the age of the appellant at the time of the commission of the offence was 69 years, it is quite probable that he would not be able to engage in smuggling drugs into Australia much longer . . ."

Lastly, I refer to the Encyclopaedia of Current Sentencing Practice, Vol. 1, p. 30202, where a case of serious sexual offences committed on young girls is referred to, R v. Wilkinson (English Court of Criminal Appeal, November 14, 1974).  The sentence was reduced, Roskill L.J. remarking among other things:

“On the other hand this man is 60, and no court willingly sentences a man of 60 to spend a large part of the remainder of his life in prison.”

It is impossible to feel the slightest sympathy for the applicant.  On the other hand, the fact that the unusual circumstances of this case attracted considerable interest in the press is not a reason for upholding the sentences.  The Court's task is to determine whether the sentences imposed were manifestly excessive, having regard to the sentences imposed in other cases of comparable seriousness.

It is difficult to compare one of the, regrettably many, cases of serious sexual mistreatment which come before us with another, but reflection on this case has persuaded me that in the whole of the circumstances the sentences imposed on this applicant are at a level which requires correction.  I would reduce the 12 year sentences to 9 years, and otherwise confirm the sentences imposed below.

REASONS FOR JUDGMENT - MUIR J.

Judgment delivered 20 March 1998

I have read the reasons of each of Pincus J.A. and de Jersey C.J. in this matter.  I agree with the reasons of de Jersey C.J. save that, for substantially the reasons advanced by Pincus J.A., I would also reduce the twelve year sentences to nine years and otherwise confirm the sentences imposed below.