The Queen v C[1999] QCA 458

COURT OF APPEAL

McMURDO P

DAVIES JA

WILLIAMS J

CA No 264 of 1999

THE QUEEN

v.

C

(Applicant) Appellant

BRISBANE

DATE 02/11/99

JUDGMENT

DAVIES JA:  The applicant pleaded guilty to four offences against s. 210 of the Criminal Code, involving his natural daughter, Amanda, who was five when the offences were committed.

He also pleaded guilty to a number of counts involving the showing of a pornographic video to four other children.

The offences involving his own child consisted of two offences of touching his child on the vagina, though on neither occasion did he attempt to penetrate it.

The first of these occurred when the child was living with the applicant pursuant to an arrangement with the child's mother from whom the applicant was estranged.  It involved the touching directly on to the vagina by moving his finger backwards and forwards.

The second offence of a similar kind occurred some months later when the child and her mother were staying with the applicant.  When the mother was asleep, the applicant took the child into his bedroom and again touched her vagina.

The other counts involved the showing of a pornographic video to the same daughter, Amanda, and four other children aged five, 10, 11 and 12.  The other children were the children of neighbours of the applicant.  The video was shown to these children on two occasions, on each of them only for a short time.  It showed sexual intercourse and oral sex.

On one of the occasions on which he showed it, a number of the children attempted to leave, and the applicant put his hand out to prevent them leaving, though they were able to leave by pushing his hand aside.  No force was used on any of these occasions, nor were any threats made to any of the children involved, nor were any payments made to any of the children involved.

Although the applicant pleaded guilty, this was only after committal proceedings in which the children had given evidence and been cross-examined.  In fact we were told it was on the eve of his trial.  It must be said, however, that the cross-examination was neither prolonged nor aggressive.

There were a number of factors taken into account in the applicant's favour by the learned sentencing judge.  He is 66 years of age with no prior convictions.  He has had a productive working life, including active service in Korea.  It was said and accepted that the applicant was otherwise a good father to the principal complainant, and that he was subject to some family stress at the time of the commission of these offences. No victim impact statement on behalf of the principal complainant was tendered.  However the mother of three of the other complainants who were members of the same family gave a statement indicating that in respect of two of them and also in respect of herself, there have been some psychological consequences.

The learned sentencing judge imposed separate cumulative sentences, a total of two and a half years imprisonment in respect of the offences involving the applicant's daughter and an additional 12 months imprisonment for the offences involving the other children.

The two and a half years consists of two and a half years for each of the touching offences and one year to be served concurrently in respect of the offences showing the video recording.

Her Honour recommended parole after 15 months and made an order pursuant to s. 19 of the Criminal Law Amendment Act 1945.

As I understood the applicant's submissions, they did not contend that the learned sentencing judge could not have imposed cumulative sentences, as she did, rather it was submitted that the total of three and a half years imprisonment with a recommendation after 15 months was manifestly excessive for the totality of criminality involved.

The applicant relied on the matters in his favour to which I have referred and on the fact that the offences, though serious, are towards the lower end of the scale of offences of this kind.

There is no doubt about the correctness of that last submission.  No violence or force of any kind was used, no threats or inducement were used and the major offence, that of touching a young girl on the vagina on two occasions did not involve penetration or physical harm.

To say that is not to understate the seriousness of these offences.  As was mentioned during the course of argument, any offence of this kind involving young children is serious and in the present case the applicant was in a position of trust and committed offences on a number of occasions.

However this Court must act consistently in sentencing and consequently it is important that the sentence which is imposed be seen to be appropriate having regard to those imposed for offences of a similar kind, some more serious, some less serious than this.  

When regard is had to those comparable sentences it can be seen, in my opinion, that the sentence imposed here in totality was manifestly excessive.  Mr Brown, for the applicant, referred us to two decisions upon which he relied, both of which in my view are comparable with one qualification. 

That qualification being that both of them were imposed when the sentencing regime was less serious than this.  With that qualification however they must still be taken into account and seen as comparable sentences to that which was imposed here.  The first of them was Lacey, CA number 262 of 1998, a decision of this Court on 9 October 1998.  That involved, as this case did, an offence of touching a child under the age of 12 years, Amanda, for which the applicant originally received a sentence of four years imprisonment.

The second lot of offences involved a similar offence on a child, Kerry, and the other offences involved, as this case did, exposing children to pornographic material.  In the case of Amanda the touching was rather similar to this case, he put his hand into Amanda's underpants and touched her. 

In the case of Kerry, again, it was similar by inserting his hand inside her shorts and down inside her panties and touched her inside her panties.  In fact it appears to be a little more serious in this case in that he pressed the outside of her vagina and she said that hurt.  He also told Kerry not to tell her parents and gave her a small amount of money to keep the matter quiet. 

There was an additional charge of an attempt against Kerry, and as I have also mentioned, the offences of exposing a number of young children, all of them however a little older than the youngest of the children in this case, to pornographic material.

The sentences which were imposed initially were held by this Court to be manifestly excessive and the sentences which were ultimately imposed involved a totality of 12 months imprisonment which were suspended after the applicant had served a total period of nine months.

An essential difference between that case and this is that the applicant there showed absolutely no remorse.  It is true, as Mr Copley said, that the applicant here contested the matter up to and after committal proceedings, and indeed up to the eve of trial, and so that one may perhaps take his expressions of remorse with a grain of salt.  But in fact in the case to which I have just referred, Lacey, the applicant never at any stage, including up to the time when the proceedings were heard, indicated or expressed any remorse for his offences. 

The other case which was relied on by Mr Brown was the case of Gray, CA No 417 of 1998, a decision given on 4 February this year that involved an indecent dealing by a man with his nine-year-old adopted son.  He fondled the complainant's penis to the point of erection on one occasion and on a separate occasion performed an act of oral sex on him.

He was sentenced at first instance to 12 months imprisonment and the Court upheld the sentence which was there imposed.  He had no prior criminal history, as the applicant does not here, the offences were very old offences and he pleaded guilty to them. 

Mr Copley referred us to a case which he said was of some relevance, that was a case of Mansfield.  That was relied on apparently by the learned primary judge, that is CA No 261 of 1997, a decision given on 6 August 1997.  There was a sentence of two and a half years imprisonment with a recommendation after four months.

But the conduct, in my view, was much more serious in that case than this.  It involved not merely touching but plainly an attempt to penetrate a young child's vagina, medical examinations showing a break in the skin and there was bleeding of the child's vagina, and the child had grimaced in pain and cried.  So the case, in my view, is really not comparable to that here.

A more recent decision which appears to have been given on the basis of the current sentencing regime is a case of Larson, an Attorney's appeal, CA No 373 of 1998, judgment of this Court being given on 3 December last year. 

The offender there was a family friend and was in a position of trust, and he committed two offences on separate occasions on a ten-year-old boy involving masturbation of the boy inside his shorts, but outside his underpants, to the stage where the boy's penis became erect. 

The circumstances were, in one respect, worse than this in that the offender threatened retaliation if the complainant revealed the offender.  Like this case there was some continuing psychological effects on the child, rather similar to those mentioned in the victim impact statement here in respect of some of the children.  And like the offender here the offender in that case had a blameless previous record.  In allowing the Attorney's appeal this Court re-sentenced the offender to 12 months imprisonment in respect of each offence, to be suspended after a period of three months. 

In the present case of course there were not only the two offences of touching, as there were in Larson, but the offences of showing the pornographic video and in respect of Larson allowance must be made to the fact that it was a sentence which was increased on an Attorney's appeal.

Nevertheless in my view it shows, as do the other cases to which I have referred show, that a sentence of three and a half years with an eligibility for parole after only 15 months is manifestly excessive.  Having regard to the circumstances which I have mentioned in the cases to which I have referred, an appropriate total sentence for the offences and criminality involved is one of 18 months imprisonment.

It would be possible I think to structure that sentence either by imposing a cumulative sentence, as the learned primary judge did, or as I would prefer, imposing concurrent sentences in each case totalling 18 months. 

I would, therefore, grant the application, allow the appeal, set aside the sentences imposed below and impose the following sentences:

1. on each of counts 1 and 2 in indictment No 73 of 1999 a sentence of one and a half years imprisonment;

2. on each of counts 3 and 4 in that indictment a sentence of six months imprisonment;

3. on each of counts 1 to 8 in indictment No 74 of 1999 a sentence of six months imprisonment.

Her Honour also made an order under s.19 of the Criminal Law Amendment Act 1945.  In order to make that order she had to be satisfied that there was a substantial risk that the offender would thereafter commit further offences of a sexual nature upon or in relation to a child under the age of 16 years.

This man, as I said, had no previous criminal history of any kind and having regard to the absence of previous criminal history and, indeed, the small number of offences involved in this case, I do not think Her Honour could have been satisfied simply on the facts which were before her, there being no expert evidence before her, that such an order could be made.

I would, therefore, decline to make any such order in this case.

THE PRESIDENT:  I agree with the orders proposed by Justice Davies and with his reasons.

WILLIAMS J:  I also agree.

THE PRESIDENT:  The orders are as proposed by Justice Davies.