R v K[1999] QCA 41

COURT OF APPEAL

PINCUS JA

THOMAS JA

SHEPHERDSON J

CA No 396 of 1998

THE QUEEN

v.

K Applicant

BRISBANE

DATE 24/02/99

JUDGMENT

PINCUS JA:  This is an application for leave to appeal against sentence.

The applicant is a man 74 years of age, having been born on 24 July 1924, and he was convicted on pleas of guilty of seven counts of unlawful and indecent dealing with a girl under the age of 12.  There are two complainants, one of whom was aged between 8 and 12 years when the five counts involving her occurred.  The other complainant was aged 10 and 11 when the two counts involving her occurred.

Consideration of the matter was complicated for the primary judge by information before the Court which indicated, as to one complainant, a continuous course of sexual interference over years including, but by no means limited to, the five counts charged and by the fact that the victim impact statement this complainant put forward suggested that all this had a very bad effect on her life.  However, it appears to me that the judge did not make the error of imposing a sentence in respect of uncharged offences, a course he was not entitled to take.  The sentence he imposed relating to the seven offences in respect of which there was a plea of guilty was three years, with a recommendation for consideration for parole after 12 months.

The sexual interference with the girls was fairly serious.  The applicant was a family friend living with the children and their parents and, according to the information before the Court, the parents did not take steps to protect the children against the applicant.  It is said against the applicant below that he took advantage of the parents' trust.  It seems to me more likely that what he took advantage of was their irresponsibility, which enabled him to attack the children in a way which I will describe.

The five counts to which I have referred consisted in contact with the girl's vagina.  On one occasion he had the complainant masturbate him to ejaculation and another count consisted in him having the complainant sit in his lap and he rubbed her vagina against his penis until he ejaculated on to her vagina, causing her genitals to bleed.  The judge regarded that offence as being very close to rape.  Rape was in fact initially charged, but that was not proceeded with.

As to the other child, the two acts of interference consisted in digital penetration of her vagina on one occasion and on another, he lay on top of the child and the applicant rubbed his penis on her vagina until he ejaculated.

It is said on behalf of the applicant that there was delay in prosecuting him but it does not appear to me that there was any mitigating delay within the principles laid down in L [1996] 2 Queensland Reports 63.  At the hearing a delay of five months was mentioned as being mitigating but it does not seem to me, to put it bluntly, that there was anything much in that.

The applicant's age and health are relied on, and properly relied on, and my opinion is that the judge, although he expressed himself in a way, at one point in his reasons, to suggest otherwise, did take these factors into account.  In addition to the information before the primary judge as to the state of the applicant's health, we are now told that he is shortly to have some operative treatment on his prostate, which is enlarged, and the inference is that that is to be an operation to reduce the size of the prostate.  He also has in prospect a hernia operation.  The medical information suggests that he has some complaints which are consistent with his age of 74, when one's health tends not to be perfect, but in addition he has some mental deterioration due to heavy drinking in the past.

Some reliance was placed in this court upon the decision in L [1994] QCA 380, where a suspended sentence was imposed.  That case is distinguishable in my view for there the first person to complain to the police about the offender's conduct was the offender himself.  That is not so here.  There was a full committal and the police obtained evidence which, it would seem, practically forced a plea of guilty, by secretly recording a conversation between one of the complainants and the applicant. 

It must also be said in favour of the applicant - and this was mentioned by Mr Devereaux in his earnest address - that there was evidence of remorse.

The circumstances then are, one has a fairly serious but very old series of offences of sexual interference with two girls by a man of advanced age with some health problems.  The submission which Mr Devereaux pressed was that the judge could have imposed a wholly suspended sentence; that is, he did not complain about the three year head sentence and could hardly do so, but suggested that the proper course would have been for His Honour to suspend it wholly.  In the alternative, Mr Devereaux put forward that the judge might have been in error, if he were bent on sending the applicant to prison, in that he made the non-parole period one year instead of some shorter period.

It is difficult, of course, to compare one of these cases with another but we do hear, as I mentioned during the hearing, a considerable number of them; it would seem to me, from my contact with such cases, that it would have been a rather unusual course for the judge wholly to suspend the sentence, in a case of this seriousness.  But to come to the ultimate point, Mr Devereaux had to persuade us - and he certainly made able efforts to do so - that the sentence was not one which the judge could properly impose or, to put it in more orthodox language, that it was manifestly excessive.  I remain unconvinced of that.  It is a matter which I considered yesterday and today and I cannot see that it is seriously arguable that, in sending the applicant to prison, the judge erred.  It seems to me that that was the proper thing to do.

One might argue about whether the non-parole period should have been nine months or twelve months, say, but it is impossible to say that the 12-month non-parole period was itself an error, despite the careful argument advanced by

Mr Devereaux.  I am of the opinion that the application for leave to appeal should be refused.

THOMAS JA:  I agree and add that I agree with the sentencing remarks of the learned sentencing judge also.

SHEPHERDSON J:  In this case the sole argument is whether or not the learned sentencing judge should have wholly suspended the three year sentence imposed.  His Honour chose not to suspend it, rather to make a recommendation for parole earlier than the relevant Statute otherwise permitted.

The applicant is an old man; this was a difficult aspect facing the learned sentencing judge.  His Honour was required to sentence in accordance with the sentencing guidelines set out in the Penalties and Sentences Act.  One of those is the matter of general deterrence of other persons committing the same or similar offences.  Another is to make it clear that the community, acting through the Court, denounces the sort of conduct in which the applicant was involved.

In The Queen v. Hunter (1984) 36 South Australian State Reports 101, the South Australian Supreme Court in Banco dealt with a sentence of imprisonment imposed upon a solicitor aged 73 years at the date of sentence who, over a period of years, had committed numerous serious offences of fraudulent conversion of trust funds.  At page 103, Chief Justice King said this:

"In fixing a non-parole period a sentencing judge must direct his attention to the minimum period for which the offender must, if the purposes of punishment are to be served, remain in prison...It is necessary, however, that the time required to be spent in prison be adequate punishment for the crime committed.  The basic concepts of justice which underlie the Criminal Law require that the punishment be fairly proportionate to the crime in accordance with the prevailing standards of punishment.  Only if it meets that criterion can a sentence satisfy the sense of justice of the community which is expressed in the Criminal Law and in the practice of the Courts in applying the Criminal Law."

I agree with the order proposed by the learned presiding judge and generally with his reasons.  I am unable to discern any error made by the learned sentencing judge in exercise of the sentencing discretion and I certainly do not agree that the recommendation for early parole showed an error.

PINCUS JA:  It will be necessary that a warrant issue.  Do you want to say anything about that, Mr Devereaux?

MR DEVEREAUX:  Would the Court be minded to order that any warrant lie in the Registry for a period of, say, seven days before service?

MR MOYNIHAN:  That is not objected to.

PINCUS JA:  Yes.  Very well.