R v Farrenkothen & Farrenkothen; ex parte Attorney-General
[2003] QCA 313
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- R v Farrenkothen & Farrenkothen; ex parte Attorney-General[2003] QCA 313
- Add to List
R v Farrenkothen & Farrenkothen; ex parte Attorney-General[2003] QCA 313
R v Farrenkothen & Farrenkothen; ex parte Attorney-General[2003] QCA 313
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | CA No 158 of 2003 DC No 13A of 2003 DC No 13B of 2003 DC No 14A of 2003 DC No 14B of 2003 |
Court of Appeal | |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | |
DELIVERED EX TEMPORE ON: | 24 July 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 July 2003 |
JUDGES: | de Jersey CJ, Mackenzie and Helman JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: | 1. In CA No 157 of 2003: Appeal allowed. Order that the two sentences of 14 years imprisonment be set aside, and that in lieu thereof, the respondent be ordered to be imprisoned for 17 years 2. In CA No 158 of 2003: Appeal allowed. Order that the three sentences of 10 years imprisonment imposed in respect of the rapes be set aside, and that on those counts, the respondent be ordered to be imprisoned for 14 years |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondents pleaded guilty to a number of sexual offences committed upon two children – where complainants were aged 10 and four or five – where one complainant was female respondent’s granddaughter – where nature of offences was depraved and callous – where respondents exhibited deceit in the face of police and family investigation – where respondents pleaded guilty – where respondents did not demonstrate remorse – whether sentence imposed by learned trial Judge was manifestly inadequate Criminal Law Amendment Act 1945 (Qld), s 19 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) Penalties and Sentences Act 1992 (Qld), s 9 R v Craddock and Craddock; ex parte A-G (Qld) [1998] QCA 334; CA Nos 269 and 270 of 1998, 23 October 1998, distinguished R v D [2003] QCA 88; CA No 444 of 2002, 4 March 2003, considered R v Daphney [1999] QCA 69; CA No 328 of 1998, 16 March 1999, distinguished R v Luke CA No 342 of 1986, 4 March 1987, considered R v Schloss (1998) 100 A Crim R 80, distinguished |
COUNSEL: | R Martin for the appellant P Callaghan for the respondent in CA No 157 of 2003 A Moynihan for the respondent in CA No 158 of 2003 |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondents |
THE CHIEF JUSTICE: The Honourable The Attorney-General appeals against sentences of imprisonment imposed upon the respondents.
The respondents pleaded guilty in the District Court to a number of sexual offences committed upon two children in the period February to August 2002. The girl victims were then aged 10 years and 4 to 5 years, respectively, and the latter was the female respondent's granddaughter.
The respondents were then husband and wife, aged 38 to 39 years, and 41 years, respectively. The male respondent was sentenced to 14 years' imprisonment, and the female respondent to 10 years' imprisonment. They will have to serve at least 80 per cent of those respective terms.
Each respondent was additionally subjected to a reporting order under section 19 of the 1945 Criminal Law Amendment Act, to subsist for 15 years following release from prison.
That required the reporting of name and address on release, and any change thereafter, and was based on the sentencing Judge's satisfaction that there is a risk that the respondents will commit further sexual offences upon children under the age of 16 years.
Before the sentencing Judge, the Crown Prosecutor submitted that the male respondent should be imprisoned for about 15 years, and as he put it, "no less", and that the female respondent should be imprisoned for about 13 years.
Counsel for the Attorney-General now submits for a range of 15 to 18 years in the case of the male respondent, and with less differentiation between the respondents than was made by the learned sentencing Judge.
The male respondent had a relevant prior criminal history. In 1986, in Victoria, he was placed on probation for 12 months for indecently assaulting a 10 year old female child the previous year, involving an attempt to masturbate the child and digitally penetrate her anus. At the time, the child was in his care.
The female respondent had prior convictions for fraud, but none for sexual offending, or crimes of violence. There was medical evidence in relation to her from a psychiatrist, Dr Varghese. The doctor was of the view that she suffered a personality disorder, although there was no evidence of psychotic illness or mental infirmity.
There was no psychiatric evidence in relation to the male respondent.
The respondents were charged on two indictments. The first of them concerned offences later in time, but earlier detected, than those in the second.
The complainant under the first indictment was 10 years old at the time of the offences. That indictment charged, against both respondents, three counts of rape, three of attempted rape, one of taking a child under 12 for immoral purposes, one of indecent assault with a circumstance of aggravation, that is oral sexual contact, and one of indecent treatment of a child under the age of 12.
The offences of rape and taking a child under 12 for immoral purposes in those circumstances both carried a maximum penalty of life imprisonment.
The complainant was a friend of the male respondent's 11 year old son. On the day of the offence, which was the 19th of August 2002, and with her mother's consent, the complainant visited the respondent's son at the respondent's house, which was approximately 200 metres away from her own.
By 6 p.m. that day, the complainant had not returned home, which was contrary to her arrangement with her mother. Her mother went to look for her. Her mother encountered the female respondent, who then knowingly falsely informed the mother that the complainant had left the respondents' house at about 4.15 p.m.
At that time, as the female respondent well knew, the complainant was in fact detained within the respondents' house.
The police attended at that house at about 7.50 p.m.. They saw the male respondent and his son in the front yard. The son gave what the son believed to be a correct account, which was that, having been playing with him in the back yard earlier in the day, the complainant had gone upstairs to play a computer game, but had then left without saying goodbye to him.
The respondents, for their part, knew that to be incorrect. The female respondent went on to give a similar false account herself. In addition, she attempted to deflect attention from herself by mentioning a suspicious motor vehicle, which she claimed had been in the vicinity at the relevant time. She feigned concern for the complainant's welfare.
On the other hand, the male respondent said simply that lots of children came to his place, and the complainant could be anywhere. That was at about 7.50 p.m..
At 9.15 p.m., the police returned to the respondents' house. After some delay, the female respondent emerged, claiming the police had interrupted sexual activity between the respondents. The male respondent appeared, dressed in a towel, with an upset and aggressive demeanour.
The police indicated they wished to search the house to make sure the complainant was not inside, simply hiding. The respondents told the police they could search once the respondents had got dressed.
The police heard running water upstairs. The female respondent told them the male respondent was having a shower. The police searched the upstairs area, but failed to locate the complainant.
They did not search the bathroom, because they believed they did not have the respondents' consent to do so.
That was at about 9.15 p.m.. At 11 p.m., the police again returned to the respondents' house. The female respondent persisted with the story she had not seen the complainant since she left the house after playing a computer game. The male respondent again joined the conversation, wearing only a towel. He claimed the police had, by now, twice in the one day interrupted the respondents having sexual relations. He said he could not be responsible for all the children who came into their house.
One of the police officers went to the back of the premises, in company with the female respondent. The male respondent stayed inside with another. As the police officer outside was inspecting an old car in the back yard, he heard a voice calling out, "Police, come up here". He saw a young person's head sticking out of an upstairs toilet window. It was the complainant.
The police were aware there were two boys sleeping upstairs. The police officer asked the female respondent to identify the child at the toilet window. She deceitfully claimed that it was the respondent's son.
The police officer inquired why the child was calling for the police, which led to prevarication on the female respondent's part, and so the police went upstairs. They found the complainant dressed in a towel. Unprompted, she made an immediate complaint of rape.
When the complainant's presence was brought to the attention of the respondents, the male respondent said, "How did she get here?" and immediately attempted to blame his son.
The complainant said she had been playing on the respondent's swing when the female respondent took her up to the computer room to play a game. The male respondent then locked the door, got out handcuffs, and applied them to her wrists, tied her feet with rope, and wrapped her in a sleeping bag.
He tied her around the neck and gagged her with what she called sticking stuff. When she complained the handcuffs were too tight, he threatened to break her neck. The male respondent asked the complainant had she ever seen, as he put it, a boy's dick and after she answered, left and then returned, took his penis from his pants and made her open her mouth and suck it. The complainant said the male respondent felt her vagina and that it hurt her.
She said the male respondent gave her a drug which turned out to be Mersyndol. That is not a stupefying drug, but it was obviously given to her with the intention that it would induce relaxation. It in fact made her vomit. The complainant said the male respondent took her on to a bed and put cream on to her vagina. She said, "He kept rubbing it and he tried to have sex with me." The female complainant came in and said, "How are you going?"
The male respondent asked his wife to hold the complainant and she did so. In answer to the complainant's question, "Why does he want to have sex with me?", the female respondent said, "Because he just likes it." In response to the male respondent's request that she gag the child, the female respondent placed a pillow over the child's mouth and said, "If you wait a little longer, he is not going to touch your fanny. He is just going to put this white stuff on you." The male respondent then ejaculated on the complainant's vagina.
At some point, the male respondent was touching the complainant over her body, kissing her on the mouth and performing oral sex upon her. He asked, "Did anybody tell you, you've got a beautiful body?" This occurred after the first visit by the police to the respondent's house at about 7.50 p.m. After the police had left, the male respondent returned to the complainant and inserted his finger into her vagina to break her hymen, saying she would relax and it would be easy to go in and not cause so much pain.
A medical examination later revealed signs of the torn hymen. The complainant did not relax, however, and the male respondent penetrated her anus with his finger. It was then that the second visit by the police took place. On that occasion, the complainant was held in the shower room by the male respondent while the police carried out their search. After they had left, the male respondent attempted again to have sex with the complainant using lubricant. The female respondent was holding the complainant down and gagging her.
The complainant believed the male respondent was interrupted in this by the sound of one of the children of the house going to the toilet. The male respondent then put the complainant in the closet, telling her not to make a sound. Once the child who had been to the toilet had gone to sleep again apparently, the male respondent again attempted to have sex with the complainant. It seems that during these events, the complainant herself wanted to go to the toilet. A bucket was provided for that purpose, presumably so she would not wake others in the house by the noise of flushing the toilet.
In her account to the police, the female respondent attempted to downplay her role in these events. She said the male respondent was the instigator. At his request, she had hidden the complainant's distinctive bicycle, which had that afternoon be left in full view outside the respondent's house. She played down her role of assistance in the attempted rapes by saying she had held the complainant's hand, merely trying to keep the complainant calm so she would not be hurt.
She admitted she lied to the police, claiming she was scared of losing her husband and that he had made her fearful, claiming she was as responsible as he was for the conduct. The female respondent said she had had a discussion with the male respondent to the effect that they could not send the complainant home. There was, however, no evidence to found a conspiracy to murder charge and the learned sentencing Judge declined to proceed on the basis that the child was not going to be allowed to live.
It is, nevertheless, legitimate to observe that the position was fraught with high risk and that the respondents' approach was characterised by a degree of recklessness. The male respondent gave a false account to the police, attempting to blame his son.
Now, the second indictment. It involved offences committed earlier in time and it concerned the female respondent's grand-daughter, then aged four to five years. This indictment contained one count of rape and six of indecent treatment of a child under 12 with a circumstance of aggravation, those being charged against a male respondent, and three counts of indecent treatment of a child under 12 with a circumstance of aggravation charged against the female respondent.
The matters involved in this indictment came to light when this complainant's mother, who is the female respondent's daughter, went to the police station to see the female respondent. This complainant thereby became aware that the police were involved with her grandparents and naively asked her mother, "Are Nan and Pa in trouble because of what they done to me", which led to the police investigation.
The respondents were married on the 16th of February 2002 and after that went on a number of camping trips. The offences involved in the second indictment occurred during those trips. Both respondents made admissions about them and each appeared anxious to blame the other wherever possible. This complainant said the male respondent had penetrated her vagina digitally while on camp and at their home with the female respondent watching.
On another occasion, while on a camping expedition, the complainant walked in on sexual activity between the respondents, which involved the use of a vibrator. Events progressed to the point where the male respondent rubbed his penis on the complainant. A couple of days later, the complainant again interrupted sexual activity between the respondents. At her urging, the male respondent applied a vibrator to her legs and genitals without penetration, although this was not the subject of a charge.
Other offences involved the male respondent allowing the complainant to fondle his penis. On another occasion, the female respondent moved the male respondent's hand onto the complainant's stomach and then between her legs. There were instances where the complainant was permitted to touch the male respondent's penis to masturbate him. Finally, there was a count of rape against the male respondent only, involving his penetration of her anus.
The male respondent had been away from the camp and had returned. The female respondent told him she had used the vibrator on the child to facilitate penetration. She implored the male respondent to abuse the child. He rubbed his penis near the child's vagina and anus and in his words, "The head of my penis started to slide into her anal walls." Medical examination confirmed injury to both the complainant's hymen and anus.
There was, unsurprisingly, substantial evidence of adverse effect upon the families of these two victims. These callous and depraved offences are properly characterised as heinous. The first complainant, chronologically, was particularly young. She was significantly corrupted by the respondents. The activity involving her was of high order seriousness involving the use of a vibrator and penile penetration, in particular, anal penetration. Each respondent played a significant role.
The second complainant was also very young, though not quite so young. She was effectively detained as a de-humanised sexual object with deception of herself, her mother and the police. She was bound and gagged, threatened with death, violated in appalling ways, including deliberate breaking of the hymen by digital penetration. She was drugged.
The female respondent played a significant role in these proceedings, having initially lured the complainant away and having threatened and gagged her with a pillow. The respondents displayed an extraordinary disregard for the feelings of the mother of the missing child and a contemptuous attitude towards the police investigation. Three police visits did not deter them from continuing with their conduct.
In the end, even the discovery of the complainant child prompted the male respondent to attempt to blame his son. Such admissions as were made, while incriminating, bore the character of damage control.
The case is remarkable for the depravity and callousness of the conduct involved, there being two complainants and the protracted concealment and deceit which occurred in the face of police and family investigation. While the respondents were plainly entitled to some benefit for their pleas of guilty, those pleas were made in the face of an overwhelming Crown case where, in effect, the respondents were caught in the act, certainly in the case of the later offending.
In my view, the pleas are not truly to be seen as an indication of remorse, including in the case of the female respondent.
The greatest utility of the pleas was in saving the complainants the need to give evidence at trial. The respondents are entitled to some allowance for co-operation in the administration of justice.
There was reason to distinguish between the two respondents as to penalty. The male was more actively involved than the female and he had a relevant criminal history. He also raped a second child on a separate and distinct occasion. It is contended, however, for the Attorney that the differentiation between a 14 year term and a 10 year term unduly favours the female respondent.
Mr Callaghan, who appeared for the male respondent, submitted the Court's approach to sentencing should now be affected by the Dangerous Prisoners' (Sexual Offenders) Act 2003 - now, in the sense of an appeal, although it was conceded that legislation does not relieve the sentencing Court of the obligation to "fashion a sentence which gives due weight to all of the matters canvassed in all parts of section 9 of the Penalties and Sentences Act".
I certainly agree with that and I cannot see, for my part, that the recent legislation has any significance either in the sentencing process before the primary Court or on appeal. What may subsequently transpire by reference to that legislation is, to my mind, a completely separate consideration about which the sentencing Court could not, at any stage, sensibly begin even to speculate.
It is, to my mind, irrelevant to the disposition of an Attorney-General appeal. Neither a sentencing Court nor the Court on appeal should approach the criterion of community protection differently because of what might subsequently arise because of the Attorney's possibly invoking the 2003 legislation.
This was an uncommonly bad case. A brief review of previous sentences suggests that the sentences of 14 years' and 10 years' imprisonment were substantially too low. In Daphney, Court of Appeal 328 of 1998 for example, 15 years' imprisonment was imposed upon an 18 year old offender who raped a four year old child.
Allowing for this more comprehensive and prolonged offending against two victims and the mature age of these offenders, a much substantial term would here have been warranted in the case of the male respondent particularly.
In D, Court of Appeal 444 of 2002, 10 years' imprisonment was imposed for one instance of digital rape on a five year old infant.
In the old case of Luke, Court of Appeal 342 of 1986, 18 years' imprisonment was imposed for the rape of a six year old girl where there had been a plea of guilty. That is a sufficient indication of a very broad range.
I would like to note, I should add, that the nine years imposed in the case of Schloss 1998 100 A Crim R 80 reflected the age of the offender which was 67 years, that being regarded as a significantly mitigating factor.
A similar position was taken in Craddock, Court of Appeal 269 and 270 of 1998, in light of the serious health problems and ages of those respondents.
But all of that said, it seems to me that this case stands alone for the gravity of the offending. When cases like this tragically arise, the Court should not strain to fit the penalty within a pattern sought to be drawn from previous decisions not necessarily comparable.
This case stands graphically apart from the others to which we have been referred and indeed from the previous experience of this Court, so far as it is historically recorded. For these rapes in the overall context, life imprisonment could, in my view, have been warranted in the case of the male respondent but for the pleas of guilty. In saying that, I acknowledge there was in these cases a limit to the gratuitous violence.
But the aggregation of the evil features present, to my mind, put these rapes into the worst category of such offending. I accept the Crown contention that the range extends well beyond 15 years.
I regard the sentence of 14 years imposed upon the male respondent to be manifestly inadequate and I accept the submission that the female respondent has been treated disproportionately favourably, even allowing for the more active nature of the male respondent's offending and more extensive offending involving the other rape in particular, his relevant prior criminal conviction and her psychological dysfunction.
I would allow each appeal. In the case of the male respondent, I would order that the two sentences of 14 years' imprisonment be set aside and that in lieu thereof the respondent be ordered to be imprisoned in each case for 17 years.
In the case of the female respondent, I would order that the sentences of 10 years imposed in respect of the three counts of rape be set aside and that on those counts the respondent be ordered to be imprisoned in each case for 14 years.
MACKENZIE J: I agree with the orders proposed for the reasons given by The Chief Justice. I specifically agree with his remarks about the proper approach to the Dangerous Prisoners (Sexual Offenders) Act 2003.
HELMAN J: Mr Callaghan and Mr Moynihan ably presented arguments for the respondents, but in my view these appeals must be allowed. I agree with the orders proposed by the Chief Justice and with his reasons.
THE CHIEF JUSTICE: The orders are as I have indicated.