R v M[1999] QCA 118

COURT OF APPEAL

de JERSEY CJ

McPHERSON JA

THOMAS JA

CA No 445 of 1998

THE QUEEN

v.

M.Applicant

BRISBANE

DATE 13/04/99

JUDGMENT

McPHERSON JA:  The applicant applies for leave to appeal against sentence in this instance.  He was convicted on his own pleas of guilty in the District Court at Townsville, and sentenced to imprisonment for four years in respect of each of counts 1, 2 and 4 on the indictment, which were charges of indecent dealing with a child under 16, with circumstances of aggravation.  He was also sentenced to imprisonment for four years in respect of count 3 in the indictment, which was a charge of permitting himself to be indecently dealt with by a child under the age of 16 with a circumstance or circumstances of aggravation.  All the sentences were ordered to be served concurrently, so that the effective head sentence was one of four years with no recommendation for parole.

The offences took place over a period of one to two months, between 1 July 1996 and 30 July 1997, during which the applicant indecently dealt with his daughter on four occasions.  She was aged 10 at the time of the offence and was residing with the applicant in a caravan park.  He was her custodial parent and had been in charge of her for a considerable time before these events.

The details of the offence, stated briefly, are, with respect to count 1, that the complainant woke to find her father had pulled aside her pants and was rubbing her vagina.  She asked him what he was doing, and he stopped.  With respect to count 2, the applicant called the complainant into his bedroom.  He asked her to take her clothes off.  She sat on his stomach and performed oral sex upon him for 10 minutes.  He rubbed her vagina during the course of this activity.

Count 3 charged that the applicant had the child masturbate him.  The child then observed him masturbating himself to ejaculation.  Count 4 involved an occasion when the applicant called the complainant into his bedroom.  He told her to take her clothes off.  He then penetrated her vagina with his finger.  She pulled away from him and he chased her, and again penetrated her vagina with his finger.

A victim impact statement from the complainant shows the extensive and severe impact that the applicant's behaviour has had on the complainant.  She is still suffering from nightmares and, in the course of them, she pictures the applicant. 

The personal circumstances of the applicant are that he was born on 23 November 1964, and is now 33 years of age.  He was 31 to 32 years old at the time of the offences.  He has no prior criminal history at all. 

Factors, going at least in part in mitigation of his offence are that the conduct occurred, as I have said, over a two month period at the end of a six year time frame in which the applicant was the custodial parent of the complainant, and appears to have committed no offences until those now under consideration.

No threat of violence or violence was involved in any of these offences.  The learned sentencing Judge found that the applicant had displayed some remorse for his conduct and it was submitted to His Honour that the applicant should receive some recognition for his plea of guilty.

It is submitted on behalf of the applicant in this Court that the sentences were manifestly excessive and that they were out of uniformity with sentences for offences of this kind, which are ordinarily in the range of two to three years with, or so it has said, a recommendation for parole after 12 months.

The maximum penalty at the time the offences were committed was 10 years.  The learned sentencing Judge said it was 14 years but that was an increase that, I understand, was not in force at the time the offences were committed, and His Honour corrected the error when it was brought to his attention on the following day.

On the other hand, there are some factors that might be thought to increase the sentence.  They are that the offences were serious and involved a serious breach of trust as the custodial victim's parent.  There was a plea of guilty but it came very late; indeed, after the trial had begun or after the applicant had been arraigned.  He did, however, spare the complainant the experience of giving evidence.  The learned sentencing Judge noted, however, that she was not spared the traumatic experience of preparing to do so. 

In the light of the principles laid down by the High Court recently in Siganto v. The Queen (1998) 73 ALJR 162, at 167-168, it is perhaps wise to remind sentencing Judges to be cautious about the way in which they express their views on the effects of the experience of giving evidence in cases like this, but I do not consider that the remark in the present context contravenes the principle in Siganto v. The Queen.

The offences had, as I have said, a traumatic effect on the complainant.  She said she felt scared and confused.  She has a fear of the applicant and perhaps of other men, and has required counselling.

The fact is, in the end, however, that to my mind the sentence imposed in this case goes beyond the standard or tariff punishment for offences of this general kind.  Of course, it is not improper for a Judge to take account of specially serious features of a particular form of an offence in order to increase the sentence actually imposed above the levels which commonly apply, or may be thought to apply, in other less serious instances of that kind.

On the other hand, for my part I can identify no special circumstances in this case differentiating it from so many other instances of the same melancholy kind, or such as would justify an increase beyond what I have called the tariff penalty in such a case.  The Crown conceded on the appeal that a sentence of the order of three years was a proper sentence in circumstances of the kind disclosed here.

In view of that, and of the opinion that I have formed myself in the matter, and also having regard to the applicant's plea of guilty, even if it was belated, I have come to the conclusion that this is a case in which the appeal against sentence should be allowed. 

I would allow the appeal to the extent of varying the sentence by reducing the sentence imposed in respect of each of these counts in the indictment from four years to three years, and by adding a recommendation for parole after the applicant has served a period of 15 months of the sentence.

THE CHIEF JUSTICE:  I agree.

THOMAS JA:  I agree.

THE CHIEF JUSTICE:  The orders are as indicated by Mr Justice McPherson.