R v B[2001] QCA 550

COURT OF APPEAL

McPHERSON JA

DAVIES JA

THOMAS JA

CA No 235 of 2001

THE QUEEN

v.

B Applicant

BRISBANE

DATE 29/11/2001

JUDGMENT

DAVIES JA:  The applicant pleaded guilty in the District Court on 30 March this year to seven counts of indecent dealing with a girl under the age of 16 with a circumstance of aggravation that she was at the time under the age of 12 and three counts of indecent dealing with the same girl under the age of 16, these offences having occurred between 1 November 1977 and 1 January 1985.  On 5 September this year he was sentenced to a term of imprisonment of three and a half years on each of the first seven counts and three years on each of the last three counts, both sentences to be suspended after the applicant has served nine months imprisonment, with an operational period of four years.  He seeks leave to appeal against those sentences.

The circumstances in which those sentences were imposed and in which this appeal is brought are, fortunately, unusual.  The fact that the offences were committed between 15 and 22 years before conviction and sentence in itself makes sentencing more difficult than it otherwise would be, particularly where the offender has apparently rehabilitated himself as this man seems to have done in the intervening period.  However, that is not a rare occurrence in matters which come before this Court. 

An unusual and additional feature, however, is that the applicant in 1995 was sentenced to 12 months imprisonment on four counts of indecent dealing with a circumstance of aggravation committed against the complainant's sister.  It is the combination of these matters which, as I will attempt to explain, makes the task of sentencing in this case a very difficult one.

The complainant in the offences the subject of this application was the daughter of the applicant's then de facto wife.  She was aged between six and 13 years over the period when these offences were committed.  Her sister, against whom the other offences in respect of which the applicant was sentenced in 1995 were committed, was between eight and 11 years when the offences against her were committed.

It is unnecessary to describe the present offences in detail.  It is sufficient to say, as the learned sentencing Judge did, that they involve a variety of serious and persistent acts of interference with the young girl; touching or rubbing her in the genital area, digital penetration, licking her genital area, simulated intercourse and oral sex.

Unsurprisingly this constant sexual abuse over a long period has had a substantial psychological effect on the complainant.  She has written a very moving impact statement outlining her substantial and continuing problems.  And as that statement was written only in March this year it is plain that those problems, or many of them, will continue indefinitely if not permanently.

The offences in respect of which the applicant was sentenced in 1995 were of a similar kind.  However, they were substantially fewer in number, four in all.  He was, as I have already mentioned, sentenced to 12 months' imprisonment in respect of those offences.  As was pointed out by Mr Byrne in this appeal, the absence of a recommendation for parole, notwithstanding expressions of remorse by the applicant before he was ever charged, an early plea of guilty and co-operation with the authorities is probably equivalent to an 18 months' sentence of imprisonment with a recommendation for parole after six months.

The applicant and his de facto wife, the mother of the complainant here and the complainant in the other offences, separated in late 1984.  He wrote her a letter in December 1985 saying that he would not be returning as he had done enough damage to her and the girls.  And he expressed remorse in a conversation which he had with the complainant in the other offences in 1987 and in a message to that complainant in 1994.

It is unclear why the applicant was not charged with these offences when, in 1994, he was charged with the other offences.  It is apparent that the police were aware then that he had committed offences also against this complainant. 

In those circumstances, in my opinion, the starting point for determining whether the sentence imposed here was manifestly excessive is the determination of what would have been an appropriate sentence in respect of these and the offences to which he pleaded guilty in 1995 if it had been imposed then.  In my opinion an appropriate sentence for the totality of these offences, had one been imposed then, would have been one of four years' imprisonment.  See Bettridge CA No 51 of 1998, 27 May 1998, Wright CA No 10 of 1996, 19 April 1996, and Gerhardt [1999] QCA 477.

Having regard to the mitigating factors to which I have already referred, voluntary desistance from further commission of offences and separation from his de facto wife, at least partly to avoid that possibility, expressions of remorse before he was ever charged with any offences, and his early pleas of guilty on both occasions, it would, in my opinion, have been appropriate to make a recommendation for parole after he had served 12 to 18 months of that sentence.

Instead, as I have already mentioned, because he was only charged, convicted, and sentenced in respect of the smaller number of offences against the complainant's sister, he was sentenced only to 12 months imprisonment in respect of which he received parole after serving six months.  The question now is whether, and if so the extent to which the applicant should be punished for these further offences in the light of the fact that he has already served the sentence which was imposed on him in 1995. 

It is not submitted by Mr Glynn SC, who appeared for the applicant, that the primary sentence should be other than one of imprisonment.  He submits that it should be a sentence of two years imprisonment.  On the other hand, however, he submits that because of the facts which I have mentioned and the fact that there is no evidence that the applicant has committed any offences since 1985, that sentence should be wholly suspended.  On the other hand, Mr Byrne for the respondent submits that the sentence imposed by the learned sentencing judge was appropriate.

Having regard to the sentence passed in 1995, which, as I have said, the respondent accepts was equivalent to a sentence of 18 months with a recommendation for early parole, I think that a sentence of three and a half years additional imprisonment makes the total sentence manifestly excessive.  That would be equivalent to a total sentence of  five years imprisonment for the totality of these offences.

I think that an appropriate sentence to impose now for the present offences in order to reach an appropriate total sentence would be one of two and a half years imprisonment. However, the more important and difficult question is whether the applicant should now undergo a term of actual imprisonment before being eligible for release either by that sentence being suspended or by the operation of a parole order.

There are no doubt factors which I have already mentioned which point against that conclusion.  The most important of these are as follows.  The first is the failure of the police to prosecute the applicant in 1995, in consequence of which he would have been sentenced for all of the offences in 1995 and would now have served his full term of imprisonment.

A further period of actual custody now would cause a further disruption of his efforts to resume a normal life and occupation, and considerable additional financial loss.  He was in business on his own account as a concreting contractor.  His business was terminated with unfortunate financial results when he was sent to gaol in 1995.  That, of course, was a consequence of his offending behaviour, and no more.

However, there is every probability that the same will happen again.  That is a consequence, it may be rightly said, of his having been charged on two occasions rather than, as should have occurred, on one only.  The second factor is the absence of any criminal conduct of any kind since 1985, which is some indication that since the commission of these offences the applicant has become rehabilitated and is unlikely to offend again. 

That is also the opinion of a psychiatrist who examined him.I should also mention that the applicant's only previous conviction before the commission of these offences was one many years before of assault, which appears, as Mr Glynn has pointed out, to have been self-defence which went beyond reasonable bounds. 

On the other hand, there is in my opinion a legitimate community concern that a person who has committed offences of such seriousness ought not, even now, have imposed on him a sentence of imprisonment which does not involve a period of actual custody.  In the end I am convinced that that factor should prevail and that the appropriate sentence must be one which involves a period of actual custody.  However, having regard to all the mitigating factors to which I have referred I think that the sentence of two and a half years should be suspended after the applicant has served four months of that term.

There is one further matter to which the respondent has adverted.  Counts 1 to 7 wrongly allege, as a circumstance of aggravation, that the complainant child was under 12 years of age.  In fact the child was under 12 at the relevant time, but the relevant circumstance of aggravation in section 216 at the time that these offences were committed was that the child be under 14 years of age.  I agree that that error is one of form rather than substance and I do not think it is necessary in those circumstances to now amend the indictment.

The orders which I would propose are therefore as follows:

1. application granted and appeal allowed;

2. set aside the sentences imposed below;

3. in lieu order that the applicant be sentenced in respect of each count to a term of two and a half years imprisonment, suspended after four months with an operational period of four years.

McPHERSON JA:  The case is a difficult and disturbing one.  I agree, however, with the reasons and with the order proposed by Justice Davies.

THOMAS JA:  I also agree with the reasons of Justice Davies and with the orders that he proposes.

McPHERSON JA:  The orders are that the application and appeal allowed, and the sentence will be varied in the way stated by Justice Davies.