R v CAQ[1999] QCA 197

COURT OF APPEAL

DAVIES JA

DERRINGTON J

CHESTERMAN J

CA No 42 of 1999

THE QUEEN

v

CAQ  Applicant

BRISBANE

DATE 28/05/99

JUDGMENT

CHESTERMAN J: On 19 February 1999 the applicant pleaded guilty to one count of maintaining a sexual relationship with a child under the age of 12 years at a time when the child was under his care, and to one count of wilfully exposing a child under the age of 12 to an indecent videotape. 

He was sentenced on the first count to imprisonment for three and a half years with a recommendation that he be considered for release on parole after serving 15 months. On the second count he was sentenced to one year’s imprisonment. The applicant applies for leave to appeal against the sentence imposed on count 1 on the ground that it is manifestly excessive. 

The child complainant was aged 10 and 11 at the time of the offences. The applicant was 51 when he commenced the relationship. The child was the grand-daughter of the applicant’s second wife. His matrimonial entanglements were bizarre.  While married to his first wife he commenced an affair with his next door neighbour who was five years older than he. They eventually married in 1986.  She is the grandmother. 

In about 1996 he commenced an affair with his step-daughter, K, the child’s mother, who was then a woman in her early 30s. He left his wife to cohabit with the step-daughter. The child was part of that household. Despite these events he remained on amicable terms with his wife. 

After about three months his newfound partner thought she should attempt a reconciliation with her husband, the child’s father. The applicant then returned to live with his wife. The reconciliation failed and K returned from Victoria. The applicant then left his wife again and resumed cohabitation with K. She died suddenly in July 1997. 

Following her death the applicant again returned to his wife. The child lived for a time with her father but he grew tired of parental responsibility and gave the child to her grandmother to be cared for. This occurred in about November 1997. The offences were committed between then and May 1998 when the applicant’s wife discovered that he had been treating the child indecently. 

The applicant’s acts consisted of touching the child on her breasts and in the vicinity of her vulva. On Some occasions he put his hand under her clothing, and on others he touched her clothing.  The first instance occurred in the swimming pool when he put his hands under her costume. The child struggled and screamed, but was subdued with threats that she would get into trouble if she mentioned what had happened. 

There were about 15 occasions when the applicant touched the child in the areas I have mentioned. There is no suggestion of penetration either digital or penile. Twice, it seems, once in the pool and once in the shower, the applicant put the child’s hand on his erect penis.  He denied that he had the child rub his member. The prosecution alleged he did. 

There is another incident which is also controversial.  After the child had showered the applicant followed her to her bedroom where he took off her towel and put her on the bed.  He either lay on top of her or-knelt between her legs.  The child was naked. 

The act constituting the second count was that the applicant activated a video cassette recorder when the child was in the room and she saw briefly some sexual acts, apparently between adult females. The offences came to light when the child’s grandmother read a letter she had written to a friend.  She confronted the applicant who admitted misconduct. 

The applicant, when interviewed by police cooperated and made substantial admissions to the majority of the offences. He admitted putting the child’s hands on his penis but denied using them to masturbate. He did not admit to lying on top of the child on the occasion he followed her from the shower. The child’s own account was that he put her on the bed and knelt between her legs.  She said, "He didn’t do anything. He was laughing."

The offences have had a serious effect upon the child and, indeed, her grandmother. Mrs CAQ feels betrayed by her husband whom she had trusted to assist her with caring for the child who had lost her mother and been abandoned by her father.  She was obviously vulnerable and in need of adult support. Her vulnerability and dependence had been abused. 

The child herself appears to have difficulties now relating to adults, particularly those in her own family.  Her nature is less affectionate and she has become aggressive. There has been disruption to the living arrangements. Mrs CAQ has had to go to live with her married, daughter in Redcliffe, the child has gone back to her father. 

The Crown Prosecutor had submitted that a sentence of between two and a half years and three years was appropriate. In passing sentence the learned Judge said:

"The age of this girl at the time, the disparity between your ages, her relationship to you and the position of trust you occupied together with the number of incidents, the period over which they occurred and your threat to her that if she complained she would be in trouble, to my mind warrant a head sentence in excess of the two and a half to three years suggested by the Crown."

The applicant submits that the sentence imposed is manifestly excessive having regard to the submissions of the Prosecutor and by comparison to the penalties imposed in similar cases. 

The applicant had no relevant prior convictions. He has been in regular employment but not otherwise been an active member of the community. A psychiatrist’s report tendered on his behalf showed him to suffer disorders of personality exhibiting narcissistic dependent and avoidant trait. The essence of the report is that the applicant has feelings of personal inadequacies and avoids contact with other people. His only personal relationships are those arising out of or associated with sexual relationships. 

It may be significant that the offences occurred shortly after the death of his partner and before he had effected a complete reconciliation with his wife. In the applicant’s favour it was urged that he had pleaded guilty, made full admissions, and avoided causing distress to the child by agreeing to a hand-up committal. 

The cases relied on do suggest that the sentence imposed was severe.  The relationship between applicant and the complainant was manifested in touching and rubbing. There were no acts of intercourse, penetration or oral sex.  In R v L [1996] QCA 316, the applicant was convicted of maintaining an unlawful sexual relationship. He was 36. The complainant was his daughter aged between 8 and 10. Over about 1.8 months the applicant on about 15 occasions engaged in simulated intercourse ending in ejaculation followed by a joint shower in which further indecencies occurred. A sentence of three years was imposed. 

In R v T; ex parte A-G (Qld) [1996] QCA 462 the sentence was one of three years imprisonment suspended after three months with an operational period of five years. The child was five and was the respondent’s daughter. There was no attempt at penetration but the particular acts are not described in the report. The respondent had no criminal history, was of good character and had had a very deprived childhood. He was of very low intelligence. The appeal was dismissed with the Court saying that the sentence was within the permissible range but at the lowest level within that range. 

In R v C [1994] QCA 318 the applicant was imprisoned for three years on a similar charge. The complainant was his daughter.  The sexual activity occurred when she was between the ages of 9 and 13. The acts were more serious than in the present case involving oral sex. The applicant showed no remorse and exposed his daughter to the ordeal of a trial and severe cross-examination. His conduct was described as revolting and viewed with outrage in the general community. 

A case relied upon by the respondent, R v V [1998] QCA 129, is also of assistance. The applicant pleaded guilty to maintaining an unlawful relationship of a sexual nature and was imprisoned for four years with a recommendation for release after serving 16 months. 

The girl was 15 and the applicant’s wife’s sister. There was an age discrepancy of about 20 years. The complainant was an unwilling participant in acts of sexual intercourse. No remorse was shown. 

The last case is R v T [1993] QCA 194 in which four years was imposed. The acts in question stopped just short of intercourse. 

This review suggests that similar offences involving more serious sexual acts or contact have been punished by three to four years imprisonment. There are, however, no exact parameters in sentencing. Because another sentence might have been appropriate or even more appropriate, it does not follow that the sentence imposed is manifestly excessive. 

It is true the applicant appears to have been dealt with severely, but the learned District Court Judge was entitled to take a stern view. The offence was serious and, as His Honour remarked, is prevalent. It involved betraying the child’s trust for the applicant’s own gratification. Adult males who take advantage of young children in their care cannot expect understanding or leniency. 

The sentencing Judge accepted the prosecution’s version of the two controverted events. His Honour said:

"There were also incidents which involved holding her hand on your penis and moving it up and down. On one occasion you put her on the bed when she was naked after she had had a shower and then placed yourself on top of her."

Because the facts of these episodes were not accepted, the learned Judge was not entitled to act upon the more serious view of them to increase the sentence unless they were proved beyond reasonable doubt. However, it does not seem that the Judge relied particularly upon those incidents as colouring the relationship, nor is it entirely clear that His Honour’s description of the second episode is a mis-description. To put the child on the bed, to kneel between her legs when she was naked, I think can fairly be described as placing yourself on top of her. 

On either view of it, it was something that was indecent and ought not to have occurred. It does not appear that the sentence was increased by reason of the description of those two events. The defence version, as I say, itself shows indecent treatment of a young girl. 

In the present case the severity of the sentence was ameliorated, by the recommendation the applicant be considered for parole after serving 15 months. This significantly diminishes the force of the submission that the penalty was manifestly excessive. 

If the recommendation is accepted it would lead to release at about the time the applicant could expect parole had he been sentenced to two and a half years which would have been at the lower end of the range. For these reasons I would not be inclined to disturb the sentence. I would refuse the application. 

DAVIES JA: I agree. 

DERRINGTON J: I agree. 

DAVIES JA: The application is refused.