The Queen v T[1999] QCA 330

COURT OF APPEAL

McPHERSON JA

THOMAS JA

DERRINGTON J

CA No 203 of 1999

THE QUEEN

v.

T Applicant

BRISBANE

DATE 18/08/99

JUDGMENT

DERRINGTON J:  The applicant is now 42 years of age.  He committed seven offences against his daughter between October 1994 and July 1995 when she was about 13 years of age.  Counts 1 to 3 and 5 to 7 involved indecent dealing with a child under 16 years of age with circumstances of aggravation and count 4 was a count of attempted incest.

He was sentenced to 18 months' imprisonment on counts 1, 2, 3 and 5, two years' imprisonment on counts 6 and 7 and three and a half years' imprisonment on the count of attempted incest.  The maximum sentences in those cases was 10 years.

At the hearing learned counsel for the applicant submitted that the appropriate sentence was two to four years but that was probably somewhat generous to himself and the appropriate sentence in the circumstances such as this for the attempted incest is about three to four years. 

It would seem that the learned sentencing Judge adopted the mean of the maximum and minimum.  He made a recommendation that the applicant be eligible for parole after 18 months.  Learned counsel for the applicant does not challenge any aspects of the sentence except that he argues that the recommendation for eligibility for early parole is inadequate having regard to the appellant's timely pleas of guilty, thereby saving his daughter from any appearance in the witness box.

The applicant's prior criminal history was of no relevant significance, consisting substantially of three drink driving offences between 1975 and 1980.  He was the natural father of the complainant and had separated from her mother in 1992.  They were subsequently divorced in March 1994.  The complainant at first joined her mother, who then entered into a new relationship, but tension arose between the complainant and the children of her mother's new partner.  Because of this the complainant then went to reside with the appellant in his unit in August 1994. 

About two months later the appellant began playing soothing music and then initiated a conversation supposedly about sexual education.  It was then that he committed count 1.  He pretended to be teaching her how to identify a circumcised penis and for that supposed purpose removed his shorts.  When she verbally objected he became angry and directed her to remove her own clothing.  She was afraid and began crying but complied.

He made her parade naked in front of him saying that he had not seen a female body in a while and a man needs to see one occasionally.  He then directed her to take his erect penis in her hand and then he moved her hand in a masturbation fashion.  He also fondled her breasts and played with her nipples.  This continued for some time.

Shortly after he committed count 2 by laying naked on the floor and directing her to kneel between his legs.  He then forced her head forward and put his penis in her mouth.  He commented that she seemed to know how to do it. 

He then committed count 3.  He told her to lie down on the floor and fondled her vagina and penetrated it with a finger.  She felt pain and commenced to cry.  He then continued to move his finger in and out of her vagina for some time and then inserted his tongue inside it.  He performed this cunnilingus for some time.

He then moved to count 4.  He lay on top of her and brought his penis into contact with her labia majora.  He applied sufficient pressure with his penis to separate the labia majora but did not penetrate.  He then withdrew saying, "I would show you how to have sexual intercourse but you are too small for me to fit."  This may indicate that it was good fortune rather than his intention that the offence was limited to an attempt rather than to the offence of incest proper.

He then committed count 5.  Whilst still kneeling between her legs he masturbated himself and ejaculated.  The totality of these incidents lasted for some four hours.  The next day he expressed remorse and said it would not happen again but as it turned out he did not keep to that promise.

About three and a half months later on about 29 January 1995 he entered her bedroom and asked her if she had been taught at school how to place a condom on a penis.  He produced a packet of prophylactics and told her she may as well learn on the real thing.  When she dissented he became agitated and she complied.  He undressed and instructed her in placing the device over his erect penis.  He then invited her to have a play with his penis.  She declined and he began to masturbate in front of her.  That was count 6.

Count 7, the final count, occurred during the first semester of 1995.  The applicant and the complainant were watching television when she commented on a tattooed female character.  He suggested that he draw dolphins on her to see how they looked.  He had her remove her bra and over her dissent pulled her clothing down and traced outlines adjacent to her nipples while cupping her breasts in his free hand.  After she replaced her clothing he told her to expose her breasts again and fondled them.

The complainant subsequently moved out of the unit when she turned 16 years of age.  She did not make a complaint for some time but eventually did so out of fear for her younger sister who had gone to reside with the applicant and his second wife whom he had married by that stage. 

The applicant's perversion affected a number of people but most of all the complainant, and there is no doubt that she suffered psychological, social and sexual retardation of a reasonably severe nature. 

The community's condemnation of this conduct and its punishment of it was a factor that was taken into account by the learned sentencing Judge.  This is a very serious example of that type of offence.  The girl was about 13 years of age and very vulnerable due to her difficult domestic position.  She was in a position of trust, and there was a certain fear of the applicant. 

Unfortunately, this was not a simple isolated occasion but occurred over a period of time on three different occasions.  The perhaps only redeeming feature is that the appellant pleaded guilty and the committal proceedings were so arranged that the complainant was not required to give evidence.  However, it might be noted that after she had gone to the police, by arrangement with them she had covertly taped a conversation with him in which he made a general admission of guilt in respect of his interference of her.

The sentence of three and a half years for the attempted incest is, as I have said, about the middle of the range appropriate for that offence in the circumstances having regard to the totality of the situation.  Normally, the appellant would have hoped to be considered for parole after half of that time; that is, some 21 months. 

The allowance made by His Honour for his plea of guilty and protection of the complainant by removing any need for her to enter the witness box was only three months out of the 21 months.  This is something less than a quarter which is sometimes given by way of consideration to people who plead guilty in these circumstances, though, of course, there is no set figure.

The allowance in that respect might be described as not generous but at the same time it is not erroneous and it would be outside the range of this Court's proper jurisdiction to interfere with it.  To do so, to take it to the best that might reasonably be expected would amount to tinkering and that should not be the function of this Court.  The appeal should be dismissed.

McPHERSON JA:  I agree.

THOMAS JA:  I agree.

McPHERSON JA:  The order of the Court is that the application for leave to appeal against sentence is dismissed.