R v P[2001] QCA 130

COURT OF APPEAL

McPHERSON JA

CHESTERMAN J

HOLMES J

CA No 4 of 2001

THE QUEEN

v

P (Applicant)

BRISBANE

DATE 05/04/2001

JUDGMENT

McPHERSON JA:  This is an application for an extension of time within which to appeal against a sentence imposed in the District Court.  The time for applying for leave to appeal against sentence expired on 12 December 2000 and it was not until 8 January 2001 that the application was filed.  However, no objection is made by the Crown to the extension of time and indeed the need for it seems quite clearly to have arisen from an oversight or mistake on the part of the solicitors for which the applicant himself was not responsible.  In the circumstances, the matter will be considered as if it were an application for leave to appeal against sentence which had been made in time.

The offences for which the applicant was convicted on his own pleas were two counts of indecent treatment of a child under 16 years with a circumstance of aggravation, the child in that case being aged 13 years; and eight counts of indecent treatment of a child under 16 years with a circumstance of aggravation, in that instance the child was aged 9 and, later, 10 years.

The sentence in respect of all of the offences was two years' imprisonment on each count, which meant in the end that the effective sentence was one of two years' imprisonment to be served concurrently.  His Honour made no recommendation for parole.

The circumstances of the offences can be summarised as follows.  First, taking counts 1 and 2 which related to the older of the two complainants, the offences were committed between March 1996 and January 1997.  So far as the second of the two complainants are concerned, counts 3 to 8 and 10 to 11 were committed between 31 July 1998 and 7 February 1999.  Count 9 was not proceeded with.

The facts relating to the offences are, in the case of counts 1 and 2, the complainant was the applicant's stepdaughter who was, at the time, 13 years old.  On an occasion giving rise to one of the offences the applicant entered the bathroom while the complainant was naked in the bath.  He joined her in the bath after playfully threatening to do so if she continued to splash him with water.  He picked her up bodily and she wrapped her legs around his torso.  He then slid her down his body, bringing her vaginal area into contact with his erect penis. 

Later that day the plaintiff requested that the child expose her breasts to him whilst the two of them were using a computer.  The complainant complied and the applicant squeezed and massaged her breasts despite her protests, saying that he thought she was enjoying it. 

As regards the younger of the two complainants, she was the other stepdaughter of the applicant and, as I have already mentioned, she was 9 years of age at the time of the offence.  The applicant and the complainant showered together on some three occasions, on each of which the applicant rubbed soap over the complainant's chest and vaginal area.  He sat on the floor of the shower and slid the child onto his lap until his penis came into contact with her vaginal area.  On one of these occasions at least the applicant's penis was erect.

Counts 10 and 11 occurred in February 1999 when the applicant requested the complainant to shower with him,  dressed in her swimming costume.  The applicant rubbed soap on the complainant's chest and vaginal areas and had the complainant soap his penis and masturbate him with her hand.

The applicant's personal circumstances are that he was aged 31 to 32 years at the time of the offences.  He has no prior criminal record of any significance for present purposes and he has a good work record.  I am bound to say, however, that that is a feature that is not entirely unusual in offences of this kind.

The factors on which reliance is especially placed in support of the application are that the applicant made full and frank admissions of the offence and, indeed, it is said that he disclosed his offences against the younger of the two complainants only once he had been interviewed or was being interviewed by the police and without having, as it were, any need to do so.

One of the factors, however, that seems to have played a part in disclosing these matters is that for some reason the older of the two complainants began to be concerned about what might be happening to her younger sister.  I will refer to the Crown Prosecutor's submissions in support of the sentence at the hearing by quoting what he said on that occasion:

"It seems also the allegations came to light in this way, that the elder complainant made a decision to report at least the matters concerning herself to the authorities in February last year.  She had previously discussed the matter with her guidance counsellor at school and with some friends.  It seems from her statement she did this out of some concern for her younger sister.  She made the complaint in February last year saying that she had been molested by the prisoner when she was 13 years old.  She indicated that there was one occasion when she was sitting in the shower" -

The Prosecutor then went on to detail the account of the offence or offences to which I have already referred.  The point was made that the applicant was entitled to a considerable degree of consideration in his favour for his having confessed his offences in this way.  It was, however, pointed out by Mr Fuller on behalf of the Crown on this appeal that the case was one where the offences were continuing at the time.  They were the subject of a report and apparently ceased only after the police were informed about them.

The other matter that is advanced in mitigation of the applicant's conduct in this case is not only that he pleaded guilty and spared the children the difficulty of giving evidence in a case of this kind, but he had also been undergoing counselling with a church community service for the treatment of his problems, and that he was doing so well before any question of the sentence came up.

Against all this must be added into the equation the fact that the applicant's conduct resulted in destruction of the family unit and the family life in this case and, as a consequence of what happened, the two complainants are now living with a relative rather than with their mother and stepfather.

Factors tending to increase the sentence are the age of the complainants.  As I have said, one was only 9 or 10 years old and, of course, also the fact that two complainants and not only one was involved.  The offence certainly involved a gross breach of trust and what might fairly be regarded as exploitation of the two children for the applicant's gratification.

There was some debate before us about the proper range of penalty to be imposed in cases that present features of this kind.  For my part I think it is possible to regard it as extending from, say, 18 months to three years imprisonment.  The variations and the decisions on the subject are considerable.  But of course each of them is partly explicable by reference to particular facts in each case and perhaps in some cases features that impress a particular Judge more than others. 

It may be open to debate whether the range extends as high as three years in circumstances of this kind, but I am not satisfied that the Judge was wrong in choosing a range that went as far as that, if that was what he did in this case.  He stressed in the course of his sentencing remarks that the girls had suffered as a result of the applicant's treatment of them.  He mentioned that they had been separated from their mother and he referred to a victim impact statement as supporting their hardship, although we do not have that document before us.

Other features of the offence that he mentioned were the element of breach of trust and the use of the applicant's position in the family to carry out the offences, with a time span over which the conduct had taken place that was considerable and which had effects on the two children.  He specifically took into account the fact that the applicant had entered pleas of guilty and accepted his guilt, and that the children had not been required to give evidence in any Court proceedings. 

Those circumstances were, his Honour said, a real and substantial consideration on sentence.  He also referred to the counselling that had been undertaken since the offences were reported to the police; but any report, if there was one, in respect of that counselling was not made available to the Court and his Honour mentioned that he had not been given any insight into the offending or counselling.  In the end, he also accepted that the applicant had expressed remorse and that some of the offences charged were prosecuted only on the basis of the applicant's admissions to the police.

Having considered the comparative sentences which were presented to him, his Honour arrived at the sentence of two years' imprisonment as appropriate for the offences, and stated specifically that the circumstances in mitigation had been given effect by moderating the head sentence rather than by making a recommendation for early eligibility for parole.

When all these matters are considered, I am not persuaded that the sentence imposed in this case was excessive or that his Honour erred in the exercise of his discretion either by overlooking any relevant facts, or failing to take relevant matters into account, or by exercising his discretion in any other way that could justify the intervention of this Court in the sentencing process.  I would therefore refuse the application for leave to appeal against sentence.

CHESTERMAN J:  I agree that the application should be refused and I agree with what has been said by the presiding Judge.  The points advanced by the applicant in support of the submission that the penalty is excessive are not without substance.  They are summarised in paragraph 10 of the written outline of submissions.  The circumstances of the offences and the factors put forward in mitigation may well have attracted a sentence, proper in the circumstances, of less than two years' imprisonment.  The test for this Court, though, is whether the sentences imposed are beyond the permissible range.  It is not sufficient that some other sentence would have been appropriate or even more appropriate than that which was imposed.  The sentencing Judge had a wide discretion available to him with respect to the range of appropriate sentences.  For the application to succeed there must be, in the sentence imposed, an error or demonstrated excessiveness.  For the reasons given by Mr Justice McPherson no such error appears.

HOLMES J:  I agree.  Like Mr Justice Chesterman, I consider a lighter sentence might properly have been imposed in the circumstances of this case but that does not lead me to the conclusion that the sentence which was in fact imposed was not within the appropriate range.  Accordingly, I would agree with the orders proposed by his Honour Mr Justice McPherson.

McPHERSON JA:  The time for applying for leave to appeal against sentence is extended but the application for leave to appeal against sentence is refused.