SUPREME COURT OF QUEENSLAND

1. McPHERSON JA:  The applicant pleaded guilty to an indictment in the District Court charging 24 counts of sexual offences committed on two children, a male and a female, who were described as his “step-grandchildren”. The meaning of this description is unclear.  But it may perhaps be assumed that they were grandchildren of his wife who had previously been married to another man. The effective sentence  imposed overall was one of 7 years, with a recommendation for parole after 2½ years.

2. The offences were committed between October 1997 and April 2002. The male child was aged between 11 and 15 years at the time of the offences against him; and the female 13 or 14. The applicant was between 68 and 73 at the time he committed the offences and 74 years old at sentencing in April of this year.

3. The offences against the boy amounting to indecent dealing (Criminal Code, s 210) consisted of acts such as touching and rubbing his penis; having him rub the applicant’s penis; oral sex; and, much more seriously, on two occasions (counts 11 and 12) having the boy sodomise him (Code s 208). As to the girl, he touched or rubbed her on the breast with his hand and touched or kissed her on the vagina, although on all but possibly one occasion outside her clothing (indecent dealing, contrary to s 210).

4. According to the victim impact statements the applicant’s conduct had adverse effects on both children, seriously disrupting family relations, interrupting their school careers; and, in the case of the boy, making him turn to drugs. The 7 year sentence was imposed for the two sodomy counts; 3 years for the offences committed when the boy was under 12; and 2 years for each of the remaining 19 offences on both complainants. It was not charged that the children were under his care at the time of the offences if indeed it was the fact that they were.

5. The applicant’s personal history is that he was born in England, where at the age of 7 he was admitted to a Dr Barnardo’s home. At 16 he joined the merchant marine. In 1949 he jumped ship in Brisbane, which led to the only prior conviction on his record, as a result of which he spent 4 weeks in prison. He has worked all his life as a labourer and has been married without, it appears, having had children of his own. He is said now to be impotent. His second wife left him when he was arrested. The matrimonial home has been sold, and the family broken up.

6. The 7 year sentence was severe; but it was obviously modelled on R v H (CA 275 of 1999) to which it bears some resemblance; and the particular offences and their consequences have, as appears from what has already been said here, had serious, and even ruinous, personal consequences for a number of innocent people.  The parole recommendation reflected the applicant’s plea of guilty and early confession; but it must be said that he had showed some disposition at an early stage of the police interviews to suggest that the two complainants had enjoyed the experience to which he subjected them.  He is obviously a man of somewhat limited insight or sensitivity, possibly as a result of his own personal experience of life.

7. The problem raised by the application is the applicant’s age and state of his health. He is not likely to re-offend or to have the opportunity of doing so. At the time of sentencing he was described by Dr Bevan as suffering severe depression for which he was taking anti-depressants, which were not being effective. The applicant now argues for a 6 year sentence instead of 7, with a recommendation for parole after 18 months. The result would be that he would be released at age 75½ instead of 77 years.

8. Having regard to the decision in H, it is difficult to regard the present sentence as excessive.  In that instance, the applicant had sodomised the boy victim rather than inducing him to do it to the applicant.  It was suggested that this made it a worse offence involving as it did a form of physical intrusion on the victim’s bodily integrity.  However that may be, there were two victims in the present case, as compared with only one in H, which is plainly an additional factor working against him.  On the other hand, H was aged 55 at sentencing, as against 74 in the case of this applicant.

9. We would have been disposed not to intervene had not Holmes J on the appeal hearing noticed a matter that had previously escaped the attention of everyone else. In the case of each of the 24 counts the applicant was charged with and pleaded guilty to a circumstance that the child was, as he well knew, a lineal descendent. With effect from 1 July 1997, Parliament amended s 210 of the Criminal Code to include as an aggravating circumstance that the child was, to the offender’s knowledge, a “lineal descendant”: s 210(4). The expression was, however, not defined by statute in the case of s 210, as it was in the case of incest (Code s 222(5)), to include step-relationships. On the face of it, the expression “lineal descendant” would, according to its ordinary meaning, therefore not include a relationship constituted only as a result of marriage. In the case of the present applicant, it appears that the applicant had married the grandmother of the two children. Whether or not that is so, it is clear that the complainants were not his lineal descendants according to the ordinary meaning of that expression. The allegation that the complainant was a lineal descendant also appears in counts 11 and 12 (permitting sodomy) although s 208 of the Code does not, or at the time did not, recognise it as an aggravating circumstance in the case of that offence.

10. The applicant therefore pleaded guilty to and was sentenced in respect of a circumstance of aggravation not known to the law. It makes some difference to the maximum penalty applicable to the offences charged in counts 4 to 24. There is a passage in his Honour’s pre-sentencing observations that suggests that in sentencing he took some account of this additional feature, as one would expect he would have done. In his supplementary outlines, Mr Martin of counsel for the Crown candidly acknowledged that, as a result, it would be necessary now for this Court to undertake the sentencing process afresh. In doing so we are disposed to give slightly more weight than did the learned sentencing judge to the mitigating factors of the applicant’s age and his depressed condition.

The orders of the Court will be as follows:

1. Set aside the applicant’s conviction on and plea of guilty to so much of the charge in each count in the indictment as avers that the complainant was the lineal descendant of the applicant accused.

2. Allow the application and appeal against sentence to the extent of reducing the head sentence on counts 11 and 12 from 7 to 6 years and the recommendation for parole from 2½ years to 2 years.

11. JONES J:  I have read and agree with the reasons of McPherson JA and agree with the orders he proposes.

12. HOLMES J: I agree with the reasons for judgment of McPherson JA and the orders he proposes.