The Queen v W[1998] QCA 68

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 473 of 1997.

Brisbane

[R  v.  W]

THE QUEEN

v.

W

(Applicant) Appellant

Pincus J.A.

Thomas J.

Dowsett J.

Judgment delivered 24 April 1998

Joint reasons for judgment of Pincus J.A. and Dowsett J.;  separate reasons of Thomas J. concurring as to the orders made.

1. APPEAL AGAINST CONVICTION DISMISSED.

2. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED AND APPEAL ALLOWED.

3. SENTENCES IMPOSED BELOW REDUCED FROM 6 YEARS TO 3 YEARS 6 MONTHS.

4. DECLARE THE PERIOD OF 91 DAYS DURING WHICH THE APPELLANT WAS HELD IN PRE-SENTENCE CUSTODY TO BE IMPRISONMENT ALREADY SERVED UNDER THE SENTENCES.

5. DIRECT THAT THE QUEENSLAND CORRECTIVE SERVICES COMMISSION BE ADVISED OF THESE ORDERS AND DECLARATION.

CATCHWORDS: CRIMINAL LAW - appeal against conviction - indecent dealing and administering stupefying drugs - whether verdicts unsafe and unsatisfactory - whether evidence of uncharged sexual contact between appellant and complainant should not have been admitted - whether a direction as to corroboration should have been given.

CRIMINAL LAW - appeal against sentence - whether sentence of 6 years imprisonment manifestly excessive - whether sentencing judge made an order under s. 161(1) Penalties and Sentences Act.

Criminal Code s. 632

Penalties and Sentences Act 1992  s. 161(1)

Counsel:  Mr S Hamlyn-Harris for the applicant/appellant.

Mrs L Clare for the respondent.

Solicitors:  Legal Aid Queensland for the applicant/appellant.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing date:  24 March 1998.

JOINT REASONS FOR JUDGMENT OF PINCUS J.A. AND DOWSETT J.

Judgment delivered 24 April 1998

The appellant was convicted in the District Court on charges of having committed sexual offences against his step-daughter.  There was a previous trial the subject of an appeal to this Court, in which judgment was delivered on 21 November 1997, (C.A. No. 349 of 1997).  On that occasion the four convictions which had been entered were quashed and a new trial ordered, the ground of success on appeal relating to the directions given by the learned trial judge.  After this second trial, which concluded on 9 December 1997, the appellant was convicted on one count of having, with intent to commit an indictable offence, namely indecent dealing with a child under the age of 12 years, administered to the complainant stupefying drugs, and on two counts of indecent dealing.  The notice of appeal asserts that the verdict of the jury "is unsafe and unsatisfactory", but the outline of argument includes contentions to the effect that evidence of uncharged sexual contacts between the complainant and the appellant should not have been admitted, that the directions relating to that evidence were inadequate and that a direction as to corroboration should have been given.  These points were elaborated by Mr Hamlyn‑Harris in oral argument

It is unnecessary to explain at this point the nature of the alleged offences of indecent dealing or that of administering stupefying drugs;  further reference to them is made below.  It is clear that the matters sworn to by the complainant were, if accepted, capable of supporting the verdicts on these counts.  The ground that the verdicts were unsafe depends, as it commonly does in cases of this sort, on discrepancies to be found in the evidence of the complainant.  She was born on 18 July 1985 and was 10 years of age at the dates ascribed to counts 1 and 2, and 10 or 11 at the dates ascribed to count 3.  It is pointed out in the outline that the complainant had apparently said at one stage that the appellant put his penis in her vagina two out of every three days on the average;  her answer was "No, about, like, um twice in three days or something".  (We interpolate that the appellant was not charged with any offences based on these allegations.)  At the trial she was asked about that, the question being "And it’s not true . . . it didn’t happen that this man put his penis into your private part once every two or three days?".  She answered "Not really, I-----", the next question was "Not really?" and the answer was "I don’t know".  On another occasion she was referred to a statement she had made that the appellant put his finger into her private part and asked "Did he ever put anything else into your private part?" and the answer was "I don’t think so, no".  That answer is plainly inconsistent with the evidence we have just mentioned.  Lastly, in oral evidence the complainant said that she told her mother that the appellant "tied me to the bed once and made me do these things", whereas in her recorded interview there is no mention of being tied to a bed.

The complainant’s 10 year old brother told the police that the appellant hurt the complainant, "sexually abusing her", "[t]elling us if you tell anyone you’ll get a really big belting".  The officer asked whether the boy saw the appellant sexually abusing the complainant and received the answer "No but I hear her.  He does it at night" and he gave some details about that.  When he gave evidence at the trial, the boy did not really swear up to the statement, although he said that what he had told the policeman was true.  It is also relevant to note that the appellant gave no evidence at the trial.  When discussing the complainant’s allegations with the police, he made what might be called partial admissions, including statements that he could not remember if he did it or not, he was not denying it happened, and so forth.

It is clear, in our opinion, that there is no substance in the assertion that the verdicts were unsafe.  The matters relied on in the outline and other discrepancies to which the Crown has drawn attention plainly do not suffice to make the verdicts ones which were not open to the jury.

As to the next point, the admission of evidence of uncharged offences, we refer to the three High Court decisions to which reference was made in the previous appeal.  They are S (1989) 168 C.L.R. 266, Harriman (1989) 167 C.L.R. 590, and B (1992) 175 C.L.R. 599.  The last of those cases is authority for the view that such evidence may be admitted in appropriate cases as evidencing that the appellant had an "unnatural and abnormal passion" for the complainant (602);  that it set the background in which the jury were to evaluate the complainant’s evidence and removed some of the natural reserve that the jury might otherwise have felt in accepting an allegation that the appellant had indulged an abnormal passion for his step-daughter (604, 605);  and that it is "the key to an assessment of the relationship between the [appellant] and the [complainant]" (610).  We can see nothing in the present case which obliged the judge to hold that the prejudicial effect of evidence of persistent sexual abuse was such as to outweigh its cogency in the respects we have mentioned.  Further, in our opinion the judge adequately explained to the jury the way in which such evidence could properly be used and warned them against using it as showing propensity.

The last point raised in the outline is the supposed requirement of a corroboration warning.  A similar point arose in Robinson (C.A. No. 314 of 1997, 20 March 1998).  There, as here, the trial occurred after, and the alleged offences were committed before, the date on which there came into force the amended form of s. 632 of the Criminal Code, 1 July 1997.  That case establishes that s. 632 in its amended form applies in trials which are conducted after 1 July 1997.  Here the judge thought fit to tell the jury to be conscious when considering the complainant’s evidence that she was a young child, to keep in mind that children are capable of building things in their mind in an imaginative way, and other remarks along that line.  It does not appear to us that the judge’s directions on that subject were less than adequate, or that his Honour was obliged to give a particular warning of the dangers of accepting the Crown case which was, speaking generally, cogent and as we have pointed out, not really denied in the appellant’s conversations with the police, or denied by any evidence called.

In our opinion the appeal against conviction should be dismissed.

There is also an application for leave to appeal against sentence.  It is convenient to take the account of what occurred from the remarks made at the first trial;  the same judge heard the second trial, and then explained the facts more summarily.  The sentencing judge expressed the opinion that what had happened to the complainant was extremely upsetting;  his Honour explained that what the appellant had done was to take "an object known as a vibrator and require the child, who did not really know what it was, to push it in and out of her mouth, you then blindfolded her, pushed the object in and out of her mouth and then substituted your penis.  You also exposed her, by taking her underclothing off and interfered with her in the genital area.  On another occasion, you put your finger inside her which provoked a scream.  . . .  On that first occasion . . . you gave her Coca Cola with alcoholic liquor in it.  You also gave her some tablets.  I do not know what they were although I am quite confident that you thought they were some substance or other which would stupefy her.  Whatever it was she took and we know part of it was alcohol, it made her dizzy and giddy . . .".  His Honour went on to say, in effect, that this could have affected the complainant’s recollection of what had been done to her.  His Honour described the appellant’s actions as an appalling breach of trust with a defenceless female child.  The judge remarked that "[s]ometimes in these matters, a person will demonstrate remorse and plead guilty and save the child the trauma of reliving the events.  There is nothing like that here". 

His Honour imposed a sentence of imprisonment of 6 years;  in doing so, the judge could not punish the appellant in relation to any uncharged offences, some reference to which appears above.

The appellant who is 34 years of age has convictions for dishonesty, some fairly recent, but has never been imprisoned before.  He has no convictions for offences similar to the present offences.

It could hardly be disputed that the sentence was a high one.  We have looked at a number of authorities, including C (C.A. No. 44 of 1994, 20 April 1994), B (C.A. No. 8 of 1996, 10 April 1996) and B (C.A. No. 291 of 1991, 27 May 1992).  Mrs Clare for the respondent suggested that the proper range for an offence of this seriousness would have begun at 4 years.  She particularly relied as justifying the sentences imposed upon a statement by the complainant’s grandmother, with whom the complainant was living at the date of the statement, 9 December 1997.  The grandmother referred to changes for the worse in the complainant’s behaviour and to the fact that she missed her mother and "doesn’t know why Mum does not believe what she was saying".  Mrs Clare for the respondent suggested, as we understood her, that what might have happened was that because of the appellant’s false denial being believed by the complainant’s mother, the appellant retained the loyalty of the mother and the complainant had been made unwelcome.  It does not appear to us that we have enough information to assess the course of events with complete accuracy;  we would not proceed on the basis that the mother’s continuing to associate with the appellant rather than with the complainant is due to a belief in the appellant’s innocence.  Further, we note that the grandmother’s statement does not indicate whether she had ever lived with the complainant, other than for a period of some months prior to the making of the statement;  it is unclear to what extent the grandmother had an opportunity for continuous observation of the complainant’s behaviour on a day to day basis at any earlier time.  We do not regard the grandmother’s rather summary statement as a ground for sentencing the appellant to a period of imprisonment greatly beyond what would otherwise have been appropriate.

To return to the question of previous authority, it is evident that the circumstances of such cases as these may vary widely:  from complaints about  fleeting and perhaps ambiguous genital contact, to serious and persistent sexual interference.  We find it difficult to accept that an attempt to establish a "tariff" is likely to be useful.  Nevertheless, general experience of the level of sentencing in the District Court and in this Court in comparable cases suggests that a 6 year sentence in the present case is indefensible.  To take but one example, the level of sentence is plainly irreconcilable with that imposed in B, referred to above.  Giving full weight to the fact that there was a breach of trust involved, in our opinion the proper sentence should have been substantially less than that imposed.  We would reduce it to a period of 3 years and 6 months.

Another aspect of the sentence application is that, so it is said, the learned sentencing judge made such an order as is contemplated by s. 161(1) of the Penalties and Sentences Act 1992, with the result that the appellant has lost the benefit of credit for pre-sentence custody - in this case 91 days - which s. 161(1) contemplates will be given, absent such an order.  It is not clear to us that what the judge said was sufficient to constitute an order under s. 161(1).  What his Honour said, according to the transcript, was:

"However, taking into account the additional trauma to the children of having to come back again evidence (sic), I do not intend to direct that the period of time you have currently been imprisoned be taken as part of the sentence imposed here today".

Of course, no such direction was necessary, since s. 161(1) would by its own force have achieved the result of making the sentence run from the inception of presentence custody, if no order to the contrary were made.  To come away from that question of the form of order, the criticism which Mr Hamlyn-Harris makes is that the reasons the judge gave, which seem to have been incompletely recorded, amounted to punishing the appellant additionally for having insisted on a proper trial.  In our opinion the judge’s order should be altered to reduce the period of imprisonment to 3 years and 6 months and also to make clear that the period of pre‑sentence custody is treated as having been served under the sentence.  The orders will therefore be as follows:

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence granted and appeal allowed.

3. Sentences imposed below reduced from 6 years to 3 years 6 months.

4. Declare the period of 91 days during which the appellant was held in pre‑sentence custody to be imprisonment already served under the sentences.

5. Direct that the Queensland Corrective Services Commission be advised of these orders and declaration.

REASONS FOR JUDGMENT - THOMAS J

Judgment delivered 24 April 1998

I agree with the joint reasons and orders proposed by Pincus JA and Dowsett J.