R v S[2001] QCA 54

COURT OF APPEAL

McMURDO P

THOMAS JA

WILSON J

No 238 of 2000

THE QUEEN

v

S Applicant

BRISBANE

DATE 21/02/2001

JUDGMENT

THE PRESIDENT:  Justice Wilson will deliver her reasons first.

WILSON J:  This is an application for leave to appeal against sentence.  In September 2000 the applicant pleaded guilty to 22 counts of indecent treatment of a child under 16 years with circumstances of aggravation and one count of maintaining an unlawful sexual relationship with a child under 16 years with circumstances of aggravation.

Twenty-one of the counts of indecent treatment and the count of maintaining an unlawful sexual relationship related to his stepdaughter, KLS.  The 22nd count of indecent treatment related to his natural daughter, BLS.

The conduct in relation to the stepdaughter occurred between 1990 and 1998 when she was aged between seven and 15 years.  The conduct in relation to the natural daughter occurred in 1998 when she was aged 10 years. 

The conduct in relation to the stepdaughter involved touching her breast area and genitals, having her rub his penis until he ejaculated and rubbing his penis on her back and buttocks to ejaculation.  There was one incident of digital penetration of her vagina.  There was one incident of taking an indecent picture of her which he later destroyed. 

The conduct in relation to the natural daughter consisted of pulling her shirt over her head and touching her on the stomach, neck and chest.

On each count of indecent treatment, the sentencing Judge imposed two years' imprisonment and on the count of maintaining a sexual relationship with a child he imposed six years' imprisonment with a recommendation for parole after two years.  The sentences were to be concurrent.

The stepdaughter made no complaint until her sister, the applicant's natural daughter, told her what the applicant had done to her.  The stepdaughter told the pastor at their church what had happened.  Then the applicant received counselling from the church and the conduct ceased.

Twelve months later he went to police and disclosed the offences to them.  They had no prior knowledge of the offences.  Subsequently, he pleaded guilty to an ex officio indictment. 

The applicant was born on 17 February 1957.  The conduct occurred when he was a mature man, apparently happily married to the victims' mother.  In all there were seven children in the household, two of them born of the mother's former relationship and five born of the mother's relationship with the applicant.  The fifth and sixth children were born after the conduct began and the seventh was born after it ceased. 

The applicant has no other criminal record.  He has a good work history and a creditable record of church and community involvement. 

Counsel for the applicant submitted that the sentence was manifestly excessive, having regard to a number of factors: first, the nature of the conduct, which he described as moderate, and second, that insufficient weight had been given to special mitigating circumstances.  These included, in particular, that the applicant had voluntarily gone to police and confessed in circumstances where police had no prior knowledge of the offences. 

This factor was taken into account by the sentencing Judge, but it is not apparent from his sentencing remarks to what extent.  It is a factor warranting special leniency, and I refer to the decision of Justice Hayne in AB v The Queen (1999) 198 Commonwealth Law Reports 111 at 155. 

The next mitigating circumstance on which the applicant's counsel relied was that the applicant had undertaken counselling for himself and funded individual counselling for the complainant children.  In the first half of the year 2000 he completed 18 counselling sessions with the Salvation Army Counselling Service.  This is a factor indicative of remorse.  It was taken into account.

Another mitigating factor referred to was the continued love and support of his children.  The sentencing Judge was conscious that imprisonment would be hard for the wife and family.  However, hardship to the wife and family ought not to be taken into account unless the circumstances are highly exceptional, and I refer to the decision in Edwards (1996) 90 Australian Criminal Reports 510.  These circumstances were not shown to be about character. 

There were no victim impact statements as such before the sentencing Judge.  In the statement she made to police in November 1999 the stepdaughter said that she had lost trust in people generally and lost trust in the applicant, but by the time of the sentencing proceedings she had written a letter pleading that the applicant not be sent to gaol. The other complainant who is, of course, much younger, wrote a letter to similar effect. 

It was submitted by the applicant's counsel that the applicable range of head sentence was four to five years and that the recommendation for parole which had been made in the circumstances was one which would have been expected on an ordinary plea of guilty without the special mitigating factors.  He submitted that the head sentence ought to have been four years, to be suspended after nine months. 

The Crown submitted that the head sentence ought not be interfered with, and if there were to be a greater allowance for the special mitigating factor of turning himself into the police, that ought to be reflected in an early recommendation for parole. 

This Court will not interfere with the sentencing Judge's exercise of discretion unless he acted on a wrong principle or the sentence he imposed was so heavy as to be manifestly excessive.  It is appropriate to consider the sentence as a whole, both the head sentence and the recommendation for parole; but that is not to say that the Court should not look at the component parts and then at the overall effect.

In the present case I consider that the sentencing Judge did not make adequate allowance for the applicant's conduct in turning himself into the police in relation to crimes of which they had no prior knowledge. 

However, looking at the component parts of the sentence, I would not interfere with the head sentence.  It should be viewed in the context of the maximum penalty:  I refer to the decision in The Queen v. Rae, Court of Appeal 24 July 1998.  The maximum sentence for the offence of maintaining a sexual relationship between 1990 and 1998 was, in my view, 14 years.  In considering the appropriate range of head sentence the Court needs to exercise some caution in dealing with cases such as Young, Court of Appeal 18 April 1997, which was decided when the maximum penalty was seven years.  The change in maximum penalty was effective from 1 July 1997.

In my view, the sentencing Judge ought to have made greater allowance for the special mitigating factor by reducing the non-parole period. 

It was submitted to this Court that it would be more appropriate to suspend the sentence after a period.  However, this is a case where upon his release from prison the applicant will need further supervision, particularly if he returns to his family.

In all the circumstances, I consider that the head sentence ought not to be altered, but that the recommendation for parole ought to be altered by deleting the recommendation that he be eligible after serving one-third of the sentence and substituting a recommendation that he be eligible after serving 18 months in prison.

THOMAS JA:  In this case the applicant voluntarily turned himself in to police.  He displayed sincere repentance and it would seem that there would probably have been no prosecution at all unless he had turned himself in as he did.  These matters constitute a very important feature in the present case.

His Honour the learned sentencing Judge said very little about these factors in his sentencing remarks.  The sentence that was imposed, six years imprisonment with a recommendation for consideration of parole after two years, would in my view have been perfectly appropriate, but for the factors to which I have just adverted.

I do not think that enough weight can have been given to these particular factors.  A locus poenitentiae has long been recognised as a significant element in criminal guilt and is a valid factor in reduction of punishment.  Where such a factor exists a real deduction is justified in the sentence and I do not think that this has occurred in the present case.

I agree with the statement made by Justice Hayne in AB v. The Queen (1999) 198 CLR 111 at 155.  The fact that this statement appears in a dissenting judgment does not detract from its force.

"The offender who confesses to what was an unknown crime may properly be said to merit special leniency.  That confession may well be seen as not motivated by fear of discovery or acceptance of the likelihood of proof of guilt.  Such a confession will often be seen as exhibit remorse and contrition."

Again in The Queen v. T ex parte Attorney-General of Queensland, 2000 QCA 282 21 July 2000, the following statement was made:

"The circumstance of an offender voluntarily terminating his conduct and reporting his own conduct to the authorities is an unusual and very important matter.  Such conduct has attracted different responses from Courts according to the circumstances of the case."

In that case such conduct was regarded as a very influential factor in the Court's dismissal of an Attorney-General's appeal against a non-custodial order, (i.e. a 12 months intensive correction order) in a case of maintaining an unlawful sexual relationship.  Such a factor will usually justify a real reduction in the sentence that might otherwise be imposed.

In my view the present sentence was manifestly excessive and this Court should now impose the sentence that it thinks appropriate.  I do not think that the retention of the otherwise appropriate head sentence of six years followed by a recommendation for earlier parole would give sufficient account to the factor to which I have referred.

In my view the appropriate sentence that should be substituted is one of four and a half years imprisonment with a recommendation for consideration of parole after 18 months.  That, I think, best reflects a real deduction from the head sentence that would otherwise have been appropriate.  I would therefore grant the application and order that the sentence below be set aside and replaced with the sentence I have proposed.

THE PRESIDENT:  I agree with what has been said by Justice of Appeal Thomas and with the orders he proposes.  I stress that the sentence imposed by the learned sentencing Judge of six years imprisonment with a recommendation for parole after two years was the appropriate sentence on the facts of this case, but for the additional extraordinary fact that the applicant voluntarily went to the police, confessed his serious wrong-doing even though the complainants did not intend to make a complaint to the police and was genuinely contrite.  He set about his rehabilitation and arranged counselling both for himself, his complainant daughter and other members of the family.

The learned sentencing Judge did not give sufficient weight to this very significant mitigating factor, see AB v. R (1999) 198 CLR 111 at 155 and R v. Fattoretto CA 31 of 1998, 7 April 1998. 

The sentence imposed was manifestly excessive and this Court must re-sentence giving appropriate weight to the applicant's contrition in confessing his involvement although no complaint had been made. 

The orders are as proposed by Justice of Appeal Thomas.