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R v T; ex parte Attorney-General[2002] QCA 132

R v T; ex parte Attorney-General[2002] QCA 132

SUPREME COURT OF QUEENSLAND

PARTIES:

 

FILE NO/S:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

DELIVERED ON:

12 April 2002

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2002

JUDGES:

McPherson JA, Byrne and Philippides JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:

That the appeal be allowed and the sentence for the offences of carnal knowledge and parole recommendation be set aside. In lieu thereof the sentence of imprisonment for 3 years be imposed on each of Counts 2 and 3.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATION TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent convicted of indecent dealing and unlawful carnal knowledge – where sentence imposed of 2 years imprisonment – where recommendation for parole after 8 months – whether sentence manifestly inadequate – effect of increase in maximum penalty.

Criminal Code (Qld), s 215

R v C [2002] QCA 46; CA No 369 of 2001, 22 February 2001, considered

R v Douglas CA No 416 of 1996, 12 November 1996, considered

R v Melano, ex parte Attorney-General [1995] 2 Qd R 186, considered

R v Morgan, ex parte Attorney-General CA No 517 of 1996, 4 October 1996, considered

R v Rae CA No 111 of 1999, 4 June 1999, considered

R v Regan CA No 381 of 1997, 21 November 1997, considered

R v S, ex parte Attorney-General CA No 389 of 1996, 7 October 1996, considered

COUNSEL:

P F Rutledge for the appellant

N Weston for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant

Legal Aid Queensland for the respondent

[1] McPHERSON JA:  There are four major considerations that plainly operate in favour of allowing this appeal and increasing the sentence imposed. They are the discrepancy in ages between the complainant, who was only 12 years of age at the time of the first offence, and the respondent offender, who was 43 years old; the fact that the offence of unlawful carnal knowledge was repeated shortly afterwards; that, when the offences were committed, the complainant was under his care at his home during a “sleepover” with the respondent’s daughter; and that the maximum penalty for the offence was sharply increased by legislation taking effect in 1997. Each of these matters, as well as others, is considered in the reasons of Philippides J, with which I agree. I also agree with the orders proposed by her Honour.

[2] BYRNE J: A measure of moderation usually attends a re-sentencing in this Court upon a successful Attorney-General’s appeal.  Here, giving effect to that inclination, as well as the consideration that three years imprisonment is the sentence sought for the Attorney-General, I agree with the orders Philippides J proposes, substantially for the reasons Her Honour gives, although even higher sentences might properly have been imposed at first instance.

[3] PHILIPPIDES J: The respondent was convicted on his own plea of guilty to two counts of indecent dealing with a child under 16 years with a circumstance of aggravation and two counts of unlawful carnal knowledge with a circumstance of aggravation.  The learned sentencing judge imposed a sentence of two years imprisonment for the unlawful carnal knowledge offences and 12 months for the indecent dealing offences, with a recommendation of parole after 8 months.  In addition, a sentence of 30 days imprisonment was imposed in respect of two summary offences.

[4] The Attorney-General has appealed against the sentence imposed as manifestly inadequate.

[5] The respondent was 43 years of age when the offences occurred. The complainant was 2 months short of her thirteenth birthday and was a friend of one of the respondent’s daughters. Shortly before the offences took place, the respondent had commenced living in the same street as the complainant.  The offences were committed on two separate occasions when the complainant stayed overnight at the respondent’s house for sleepovers.

[6] The circumstances of the offence the subject of count one, being a charge of indecent dealing, are as follows. The complainant stayed over at the respondent’s house one night in November 2000 on the invitation of the respondent’s daughter.  After dinner, the respondent started smoking cannabis and drank 2 bottles of beer and some rum.  The complainant was offered some beer which she drank.  She went to bed in the respondent’s daughter’s bedroom. At about 1:00am, the complainant got up to get a glass of water.  While at the kitchen sink the respondent approached her and began kissing her on the face and lips and putting his tongue in her mouth.  The respondent said something like “I want you real bad”.  While he was kissing the complainant, he placed one of his hands down the inside of her shorts and underpants.  He then rubbed his hand up and down on her vagina a number of times.  The respondent then went back to his room.  The complainant stated that she felt really scared and just froze. 

[7] A couple of seconds later, the respondent returned to the kitchen and led the complainant into the backyard, where he removed her shorts and underpants, took off his shorts and placed a condom on his erect penis.  He then asked the complainant to lie down and had sexual intercourse with her.  This lasted about 5 minutes.  The complainant stated that this hurt a lot in the vaginal area. She was told to go to bed and not to tell anyone.  The complainant did not tell anyone as she was scared that she would get into trouble.  This constitutes the subject of count two, being the first charge of unlawful carnal knowledge.

[8] The offence the subject of count three, being the second charge of unlawful carnal knowledge, occurred on 3 January 2001.  Again, the complainant was staying at the respondent’s house having been invited by one of the respondent’s daughters.  The complainant stated that she did not think that the respondent would touch her again as the respondent had a male friend staying also.  At around midnight, the respondent came into the complainant’s room and took her into his bedroom.  The respondent put the complainant on his bed and placed a condom on his erect penis.  He began to kiss the complainant and then had sexual intercourse with her, saying things such as, “If you were older I would marry you” and “I love you, do you love me?”

[9] The complainant then got up, dressed herself, went into the lounge room and watched television. Soon thereafter, the respondent approached her, removed her shorts and her underpants and said, “I’ll teach you how to make love and how to do my tricks”.  He then performed an act of oral sex on the complainant.  That constitutes the offence the subject of count four, being the second charge of indecent dealing.

[10] This was the final occasion the complainant went to the respondent’s house. She made a complaint to her mother approximately 8 days later.  In a pretext telephone call on 13 January 2001 the respondent admitted to having sexual intercourse with the complainant.  He was interviewed by police the following day and admitted to two acts of intercourse.

[11] The matter proceeded by way of a full hand-up committal without cross-examination.  This was held to be an early plea of guilty.  His Honour accepted that there was genuine remorse on the part of the respondent.  At the sentence hearing, the Crown contended for a sentence of 3 years imprisonment, based on the age disparity between the complainant and the respondent, his abuse of the position of trust he held, the fact that what was involved was not an isolated event and the criminality involved in the offences.  Counsel for the respondent submitted that a sentence of 12 to 18 months was appropriate.

[12] In sentencing the respondent, the learned sentencing judge referred to the seriousness of the offences. Although a Victim Impact Statement was not tendered, it was accepted and his Honour proceeded on the basis that the complainant had been emotionally scarred by the offences. The learned sentencing judge also took into account the circumstance of aggravation that the complainant was in the care of the respondent at the time the offences were committed and the fact that the complainant’s consent amounted to no more than simply putting up with what was occurring.  In the respondent’s favour, the learned sentencing judge took into account, as I have mentioned, the early plea of guilty and the respondent’s remorse.

[13] The learned sentencing judge had reference to comparable cases placed before him.  In considering those cases and the appropriate sentence, his Honour was mindful of the relevant changes to the maximum penalty for the offences.

[14] The principles to be applied in relation to an appeal against sentence by the Attorney-General were outlined in R v Melano, ex parte Attorney-General.[1]  It must be shown that the sentencing judge has erred in principle, either because an error is discernible or demonstrated by a manifest inadequacy or excessiveness of sentence.  Otherwise, variation by this Court will not be justified unless, perhaps, in exceptional circumstances; for example, to establish or alter a matter of principle or the sentencing range which is appropriate.

[15] There is nothing exceptional in this case. Accordingly, the question for consideration is whether the sentence imposed is outside the scope of a proper sentencing discretion.

[16] The grounds upon which it is said that the sentence imposed was manifestly inadequate are, firstly, that it fails to reflect the gravity of the offence generally and in this case in particular, secondly, that it fails to take sufficiently into account the aspect of general deterrence and thirdly, that the sentencing judge gave too much weight to factors going to mitigation.  It was submitted on behalf of the appellant that the range within which sentence should have been imposed was one of 3 to 5 years imprisonment and that a sentence of 3 years should have been imposed.

[17] On behalf of the respondent it was submitted that the appellant has not established that the sentence imposed falls outside the permissible range.  It was submitted that the sentence imposed of 2 years imprisonment is greater than the penalty imposed in any of the comparable cases relied on by the appellant.

[18] The decisions of R v S, ex parte Attorney-General[2] and R v Regan[3] were referred to the learned sentencing judge, as they were to this Court.

[19] In S’s case, concurrent sentences of 6 months imprisonment were imposed, in respect of 8 offences of unlawful carnal knowledge of a girl under 16 years. The respondent had entered an early plea and the matters proceeded by way of ex-officio indictment. The sentences were upheld on an Attorney-General’s appeal. The complainant was aged 14½ years at the time of the offences.  The respondent was aged 33 years and was a friend of the complainant’s mother and, upon the mother sustaining a back injury, moved into the family home.  Immediately after moving in, the respondent made improper advances culminating in the offences.  The respondent had no prior convictions.  Although the sentences were not disturbed, they were described as lenient.  A complicating feature in the case was the fact that the Attorney-General’s application to appeal was brought out of time.

[20] In Regan’s case, the applicant was convicted on a late plea of guilty to 2 counts of unlawful carnal knowledge of a girl under 16 years and sentenced on each count to 6 months imprisonment.  The sentence was upheld on appeal.  At the time of the offence, the complainant was aged 14 years.  The applicant, who was 21 years, had a substantial criminal history.  He had been drinking with the complainant and others at a party. The applicant took advantage of the complainant's intoxicated state in committing the offences.

[21] I do not consider that these cases are of any real assistance.  In R v C,[4] McPherson JA, with whom Davies and Williams JJA agreed, stated, as the learned sentencing judge in this case also recognised, that S and Regan were of limited assistance, because of changes to the maximum penalty for the offences in question and therefore those cases were not capable of being regarded as satisfactory indications of the current attitude of this Court to offences of this kind.

[22] In this regard, it should be noted that the maximum penalty for the offence of unlawful carnal knowledge has been increased from 5 years to 14 years with effect from the 1 July 1997.[5]  Where, as is the case here, the offender has the complainant under his care, the maximum sentence has been increased from 14 years to life imprisonment.[6]  The legislature has thus substantially increased the maximum penalty for this offence, which seeks to protect children from being exploited, especially in circumstances involving a breach of a relationship of trust, which arises, as is the case here, where the offender has the care of the complainant.

[23] The court was also referred to the case of R v Rae.[7]  The applicant in that case pleaded guilty to two counts of unlawful carnal knowledge and was sentenced to 12 months imprisonment with a recommendation for parole after serving 4 months.  The sentence was upheld on appeal.  The applicant was 25 years at the time of the offence and the complainant was 14 years.  Although the offences were committed after the increase in the maximum penalty came into effect, it would appear, as McPherson JA observed in R v C, that the change in maximum was not referred to the Court of Appeal and accordingly, this case is also of limited assistance.

[24] Counsel for the respondent referred to two other decisions.  In R v Douglas,[8] the respondent pleaded guilty to unlawfully maintaining a sexual relationship with a 12 year-old girl.  During the course of the relationship (which lasted 7 months), the respondent had unlawful carnal knowledge of the child. The respondent was initially sentenced to a wholly suspended 3 year sentence. A successful appeal by the Attorney-General resulted in a sentence of 3 years imprisonment suspended after 12 months being imposed.  In R v Morgan, ex parte Attorney-General,[9] the Attorney-General successfully appealed a wholly suspended sentence imposed on the respondent for maintaining a sexual relationship with a girl aged between 13 and 14 years. The relationship lasted 10 months and sexual intercourse occurred on a regular basis. The initial sentence of a wholly suspended term of 3 years was overturned and the respondent was sentenced to 3 years imprisonment, suspended after 12 months.

[25] It was submitted that Douglas and Morgan should be seen as significantly more serious cases than the present case, given the lengthy sexual relationships involved in those cases, and yet the successful appeals resulted in lesser sentences than that sought by the appellant.  In my opinion, both Douglas and Morgan suffer from the same difficulty as S and Regan, in that they predate the amendment to the penalty imposed for the offences in question.

[26] Neither counsel was able to refer the Court to any comparable case involving the circumstance of aggravation relevant in this case.  The only case in respect of the period after July 1997 that was put before the Court was that of R v C. 

[27] In that case, the applicant was sentenced to 12 months imprisonment for one offence of unlawful carnal knowledge, to which he had pleaded guilty.  The applicant was 39 or 40 at the time of the offence and the complainant was 15 years and 9 months.  The Court placed significance on the applicant’s position of seniority in what appeared to be a family unit and the fact that an element of breach of trust was involved.  The applicant’s not unsubstantial criminal history and lack of remorse were also factors that went against him.  The sentence was considered within range, given the change in maximum penalty.

[28] Counsel for the respondent submitted that the features of lack of remorse and being a member of the family unit, which were present in R v C, were not present here. In addition it was said that unlike that case, the respondent in this case has an immaterial criminal history.  However, counsel for the appellant submitted that the offences in question in this case were significantly more serious than in R v C, especially when bearing in mind that the maximum sentence available in R v C was 14 years imprisonment, whereas in the present case it was life.

[29] In my opinion, even having due regard to the plea of guilty, the sentence imposed by the learned sentencing judge did not fall within the scope of a proper sentencing discretion.  I consider that the sentence imposed was, in all the circumstances, manifestly inadequate and did not properly reflect the increases since 1997 in the maximum penalty for the offences in question. In my opinion, a sentence of three years imprisonment as contended for by the appellant was called for.

[30] I would allow the appeal by the Attorney-General, to the extent of setting aside the sentence of 2 years imprisonment for the offences of unlawful carnal knowledge and in lieu thereof imposing a sentence of three years imprisonment.  I would also set aside the recommendation for parole. Otherwise, the sentences imposed at first instance should stand.

Footnotes

[1] [1995] 2 Qd R 186 at 189.

[2] CA No 389 of 1996, 7 October 1996.

[3] CA No 391 of 1997, 21 November 1997.

[4] [2002] QCA 46; CA No 369 of 2001, 22 February 2002.

[5] See s 215 of the Criminal Code.

[6] See s 215 (4) of the Criminal Code.

[7] CA No 111 of 1999, 4 June 1999.

[8] CA No 416 of 1996, 12 November 1996.

[9] CA No 517 of 1996, 4 October 1996.

Close

Editorial Notes

  • Published Case Name:

    R v T; ex parte Attorney-General of Queensland

  • Shortened Case Name:

    R v T; ex parte Attorney-General

  • MNC:

    [2002] QCA 132

  • Court:

    QCA

  • Judge(s):

    McPherson JA, Byrne J, Philippides J

  • Date:

    12 Apr 2002

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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