R v S[2002] QCA 300

WILLIAMS JA

MACKENZIE J

HOLMES J

CA No 69 of 2002

THE QUEEN

v.

SAppellant

BRISBANE

DATE 15/08/2002

JUDGMENT

WILLIAMS JA: I will ask Justice  Holmes to deliver her reasons first.

HOLMES J:  The applicant seeks leave to appeal against a sentence of four years' imprisonment imposed on him in respect of two counts of indecent dealing with a child under the age of 14 years.  He was convicted after a trial of those counts but the jury was unable to agree on a further count of rape of the same complainant.  The complainant was the younger sister of his girlfriend, later his wife.

The offence the subject of the first count was alleged to have occurred between the 3rd of May 1978 and the 5th of May 1979 when the complainant was 10 years old, and that the subject of the second count between the 7th of June 1980 and the 12th of April 1981 when the complainant was 12.

As to the first occasion, the complainant gave an account of being asleep in a bunk bed with her younger brother who was about six and being woken by the applicant.  He lifted her nightgown and rubbed her chest and her vaginal area under her underpants.  When she began to cry he put his hand over her mouth.  He then took her hand and that of her younger brother, who by then had woken, and tried to make each touch the other's genitals.  They resisted.  Then the applicant moved the complainant's hand up and down his erect penis.  Before leaving the room he told the children were not to tell anyone, particularly their sister, and that no-one would believe them if they did. The applicant was at that time the boyfriend of the complainant's sister.  In 1980 he married the complainant's sister.  The complainant often spent weekends with the couple at their house.  Her evidence was that over the period of his relationship with her sister the respondent had continued to touch her breasts and vaginal area on what was roughly a weekly basis and would also come in while the complainant was bathing and, under the pretext of helping her, touch her vaginal area.

The particular incident which was the subject of the second count occurred when the complainant was taking a bath with her younger brother and involved what she described as fingering which, it is fairly clear from other references, meant digital penetration of her vagina.

The applicant was born on the 2nd of March 1959 so that he was between 19 and 20 when the first offence was committed and between 21 and 22 at the time of the second.  He had a single previous conviction for the offence of wilful exposure committed in 1987.  There had of course been a very considerable delay in the making of the complaints which led to the convictions in respect of which he was sentenced.  He was not charged until January 2000.  The maximum penalty at the time the offences were committed was seven years' imprisonment.

Counsel for the Crown provided the learned judge on sentence with a schedule of comparable cases relying particularly on the case of Betteridge, Court of Appeal No 51 of 1998 delivered 27th of May 1998, in which a sentence of four years' imprisonment had been imposed.

The learned sentencing judge noted that the offences here involved an abuse of trust, that there was particularly an element of perversion in the attempt to make the children touch each other, and that the complainant had effectively been robbed of her childhood.  There was, he said, an absence of remorse.  He accepted the submission of counsel for the Crown that four years was the appropriate sentence.  I should say that counsel for the Crown on this appeal, Mr Martin, also relied on the case of Betteridge as justifying the sentence of four years' imprisonment.

However, having examined both Betteridge and the schedule of comparable sentences relied on by the Crown on sentence, I am not convinced that Betteridge did demonstrate that four years was appropriate.

That case did not in my view involve a genuinely comparable set of circumstances.  There, there were three complainants aged seven and eight, and four offences were involved.  One was a boy against whom two offences of indecent dealing were committed.  One of those involved movement of the applicant's penis between the child's oiled thighs, simulating intercourse without penetration.  The four-year sentence in that case was produced by reduction of a sentence of seven years in respect of the counts involving the boy.  And in that case the children's consent to the various activities involving them was obtained, it is said, by "aggressive bullying behaviour" over a period of time.

Those elements were absent here.  It must be remembered that the applicant was being sentenced only in respect of the two counts on which he was found guilty and not for other conduct which was the subject of evidence in the trial.  Weight should have been given to the fact of his relative youth at the time of the offences, to the fact that there was no element of physical force in these offences, that he had only the single conviction already referred to, and that apart from that one minor conviction he had over the 20 years since these offences apparently conducted himself properly and had a good work history.

Having regard to the schedule used at sentence and that provided by counsel for the applicant here, and in particular to the cases of Wackerow, Court of Appeal 62 of 1996 delivered 20th of August 1996, Knuth, Court of Appeal No 64 of 1998 delivered 23rd of June 1998, Lacey, Court of Appeal No 262 of 1998 delivered 9th of October 1998, Gerhardt ex parte The Attorney-General [1999] QCA 477, and W [2000] QCA 321, I consider that the sentence imposed was manifestly excessive.

I would give leave to appeal and allow the appeal, setting aside the sentence and substituting in lieu on both counts a sentence of two years' imprisonment.

WILLIAMS JA:  I agree.

MACKENZIE J:  I agree.

WILLIAMS JA:  The order of the Court will be as indicated by Justice Holmes.