The Queen v H[1999] QCA 465

COURT OF APPEAL

DAVIES JA

THOMAS JA

ATKINSON J

CA No 275 of 1999

THE QUEEN

v.

H 

(Applicant) Appellant

BRISBANE

DATE 04/11/99

JUDGMENT

DAVIES JA:  The applicant pleaded guilty in the District Court on 30 July last to nine counts involving sexual offences against a young boy.  They consisted of three counts of indecent treatment of a child with a circumstance of aggravation that he was under the age of 14 years, for which he was sentenced to five years imprisonment, four counts of indecent treatment of a child under 16, for which he was sentenced also to five years imprisonment, the maximum term of imprisonment for that offence, and two counts of sodomy for which he was sentenced to eight years imprisonment.

The learned sentencing judge added a recommendation that the applicant be eligible for release upon parole after serving three and a half years, declared that a period of 240 days spent in pre-sentence custody be imprisonment already served, and made a declaration under s. 19 of the Criminal Law Amendment Act 1945 requiring the applicant to report his address to police after his release for a period of 10 years.

The applicant seeks leave to appeal against those sentences, though in effect it is an appeal against the totality of eight years with a recommendation after three and a half years.

In his written outline, the applicant conceded that the appropriate range for these offences was six to eight years, and consequently that the offence of eight years was within the appropriate range.

That concession was withdrawn by Mrs McGinness who appeared for the applicant in this Court.  She contended that in fact the appropriate range was six to seven years.

For reasons which I will mention a little later, that submission appears to me to be correct.

However it is contended in addition that the recommendation should have been made at an earlier date, the submission being, as Mrs McGinness put it in this Court, after two and a half years.

The applicant is 55 years of age.  He was born on 29 July 1941.  The offences occurred a substantial period ago.  They occurred in two episodes, one from late 1986 to early 1987, the other from late 1990 to early 1991.

In the first period, the applicant committed three of the offences of indecent treatment and one of sodomy and in the second period, the further four offences of indecent treatment and one of sodomy.

The complainant was nine years of age when the first set of offences was committed, and 13 during the second.  The applicant has no relevant prior criminal history.  He has a small number of minor convictions.  He is an unmarried man who became friendly with the complainant's parents, to the point where he was invited to go on holidays with them and their two children, of whom the complainant was one.  He was treated as an honorary uncle of the children.

The first offence consists of the applicant touching the complainant's penis.  The second involved him forcing the complainant to suck his penis and his moving it in and out of the child's mouth.  The third also involved the applicant making the complainant suck his penis.  The fourth, the first of the sodomy counts, consisted of the applicant applying vaseline to his erect penis and pushing it into the complainant's anus.  He ejaculated either on the complainant's back or on to a towel placed on the bed. 

They were the offences committed when the complainant was nine.  Of the offences committed when the complainant was 13 the first consisted of the applicant sucking the child's penis.  The second consisted of the applicant requiring the complainant to suck his penis.  The third, the sodomy count, followed the same course as the previous sodomy count.  The fifth involved the applicant pulling the complainant's pants down and grabbing his penis.  The last of them involved an attempted sodomy, unsuccessful because the child threatened him with a toy hammer.

The complaint was not made until September 1998 and a confession was then elicited from the complainant in the course of a phone conversation between him and the complainant's father.  Unsurprisingly the revelation of all this has had a devastating effect on the complainant, his parents and his sibling, who is a sister.  It has made them in various ways distrustful, bitter and guilt-ridden.

The complainant in particular has been badly affected.  He is now 22 years of age, has undergone counselling, and takes anti-depressants.  He has attempted suicide and has been unable to stay in any job for very long.  The seriousness of these offences cannot be underestimated.  It was, initially, common ground between the parties that a sentence of eight years imprisonment was justified, although as I have mentioned that concession by the applicant has been withdrawn now, but it is at least common ground that an appropriate sentence is as much as a seven year sentence.

The other question is whether and to what extent a sentence of imprisonment of six or seven years should be moderated by the mitigating factors which I shall mention.  It must be said that the applicant pleaded guilty at an early stage and that the complainant was relieved of the need to give evidence.  He has also expressed deep regret for the harm he has caused the complainant and his family. 

Nevertheless it must be said that this did not cause him to voluntarily confess and it remained concealed for many years; and when he first confessed he sought to blame the complainant at least in part.  He appears to have been a reasonably useful member of the community, he has had a reasonable employment history, and he served in Vietnam.  He has had a number of health problems including heart disease.

Perhaps of greater significance in the applicant's favour is that he has not offended in a similar way either before the commencement of these offences or at any time since the last of them was committed.  The question is whether the overall criminality of the offences and the factors which I have mentioned in the applicant's favour justify a moderation of the sentence which was imposed either by reducing the head sentence or by a recommendation for earlier parole, or both.

The submissions which have been made on behalf of the applicant and the cases to which the applicant in particular has referred in my view support the contention made in oral submissions that the range is probably six to seven years, or at least that an appropriate sentence was really no more than about seven years imprisonment.  Of those cases perhaps the most close in comparability is that of Wilson, CA number 287 of 1990, decided on 14 December 1990.  But the other cases which have been decided in this Court in my submission would support that contention.

The personal factors which I have mentioned in the applicant's favour also support the contention which was made, in my view, that the allowance of only six months off the eight year sentence which was imposed was too little by way of recommendation for parole.  In my view the appropriate sentence would have been one, as I have said, of seven years imprisonment with a recommendation for parole as contended for by the applicant after two and a half years.

Accordingly I would grant the application and allow the appeal to the extent only of substituting for the sentences of eight years on each of the sodomy counts a sentence of seven years imprisonment in each case, deleting the recommendation made below and substituting a recommendation that the applicant be eligible for parole after serving two and a half years imprisonment.

THOMAS JA:  I agree.

ATKINSON J:  I agree.

DAVIES JA:  The orders are as I have indicated.