R v Cogdale[2004] QCA 129

SUPREME COURT OF QUEENSLAND

WILLIAMS JA:  This is an application for leave to appeal against a sentence of five years imprisonment imposed after the applicant pleaded guilty to one count of burglary, one count of taking a child for immoral purposes and one count of unlawfully exposing a child under the age of 16 to an indecent act.

The offences occurred on 18 April 2003.  At that time the complainant child was aged eight.  The maximum penalties to which the applicant was exposed were life for the burglary, 14 years for the child stealing, and 10 years for the exposure of a child to an indecent act.

The relevant circumstances can be briefly stated.  The complainant child lived with her parents and younger brother in a rented house in Kirwin.  On the evening in question the complainant child was put to bed after which her parents watched a football match on television.

The applicant removed a flyscreen from the complainant's bedroom window, lifted the child from her bed, carried her down the street and through a car park to where his car was located.

He then drove the complainant girl to an isolated spot some distance away.  The complainant was crying and asking to be taken home.  The applicant told her that if she was quiet he would take her home.  After stopping the vehicle, the applicant got into the back seat with the girl and masturbated himself until he ejaculated on his leg.  That was witnessed by the complainant girl.  She was able to give the police a description of what happened.

The applicant invited the complainant girl to touch his penis but she declined.  After that the applicant drove the complainant back to the vicinity of her house letting her exit the vehicle a few blocks away.  The complainant then ran home.

At about that time, the complainant's parents checked her bedroom and discovered she was not there.  Shortly after, they heard cries of the complainant coming from outside the locked house.  The police were called and investigations commenced.

A doorknock of the area resulted in the police being given the registration number of a vehicle which had been seen acting suspiciously in the area over some days.  That was the registration number of the applicant's vehicle.

The applicant was interviewed by the police but he gave a false account of his activities on the previous evening.  Specifically at that time, he denied any involvement.  He was released by the police.  However, on the next day the applicant voluntarily contacted the police and made full admissions to the offences.  This was a plea to an ex officio indictment.  There was no committal hearing.

The applicant was born on 25 August 1966 making him 36 at the time of the offences and 37 when he stood for sentence.  He had a minor criminal history which did not contain any comparable offences.

The applicant had a good work history.  He had been educated to year 11 and after working in a number of jobs joined the Australian Army in 1986.  He had served in the army for some 17 years, latterly in the Transport Corps reaching the rank of corporal.  He was dismissed from the army on pleading guilty to these charges and consequently lost entitlements to a pension which would have accrued after 20 years' service.

He had been in custody from 23 April 2003 to the date of the sentence, some 218 days, and that was taken into account by the learned sentencing Judge.

Because the applicant's vehicle had been seen in the vicinity of the complainant's residence over a period of time prior to the commission of the offence, the learned sentencing Judge was satisfied that the offence involved some preplanning.  That conclusion was clearly open on the material.  The element of premeditation made this an even more serious offence.

The applicant claimed that on the night in question he had been drinking heavily and generally had a problem with alcohol.

Counsel for the applicant in this Court did not contend that the head sentence of five years' imprisonment was manifestly excessive, but the submission was made that the overall sentence was manifestly excessive because of the failure to add either a partial suspension or recommendation for parole.  Reference was made to the fact that in the course of discussing the issue of parole with counsel for the prosecution, the learned sentencing Judge said, "Eligibility for parole consideration applies anyway, doesn't it, up to, well, approximately a third, is it?"  To that the Prosecutor replied, "Yes."  That, of course, was erroneous but in the context of the overall sentencing process that was not an error of substance.

In determining the appropriate penalty, the learned sentencing Judge took into account the fact that the complainant was a very young girl, the Court's responsibility in endeavouring to ensure the safety of children in their home, and the element of deterrence.  It cannot be said that the learned sentencing Judge did not have regard to all relevant considerations.

Counsel in this Court submitted that some moderation of the head sentence was called for because the applicant voluntarily desisted from further indecent conduct with the child and returned her to her home, he made full disclosure ultimately to the police, he expressed real and genuine remorse, had no relevant convictions, and pleaded to an ex officio indictment.

Counsel for the applicant referred by way of comparison to sentences imposed in Tappi CA No 420 of 1995, Butler [1996] QCA 264, and Dixon CA No 142 of 1999.  Those cases are not, in my view, comparable.  The main reason for so concluding is that the penalty for offences of the type in question were increased substantially in 1997 and subsequently.

For example, the maximum penalty for the offence of which Dixon was convicted was seven years' imprisonment.  Dixon was referred to by the learned sentencing Judge.  There on a plea of guilty for a somewhat comparable, but less serious, offence, a penalty of five years' imprisonment was imposed.

In the course of his sentencing remarks, the learned sentencing Judge referred to the fact that there was a plea of guilty but he did not indicate any specific reduction in the sentence imposed because of that.  In my view, it must be inferred that the learned sentencing Judge did reduce the head sentence because of that consideration.

Given the cases to which I have referred indicate a sentence of five years' imprisonment was appropriate prior to the 1997 amendments, the offences in question here would call for a head sentence significantly greater than five years' imprisonment before mitigating factors were considered.

Breaking into a dwelling house at night and taking away an eight year old girl for immoral purposes is a very serious crime.  Here the girl was taken quite some distance from her home and the victim impact statement indicates it was an extremely traumatic experience for her.  Given the maximum penalties to which this applicant was exposed, a sentence of eight years' imprisonment would be within range prior to considering mitigating and discounting factors.

The applicant must be given credit for his plea of guilty to an ex officio indictment which resulted in the complainant girl not having to give evidence either at committal or trial.  The report from the psychologist and other material placed before the learned sentencing Judge also indicates there has been genuine remorse on the part of the applicant.

In my view, a sentence of five years' imprisonment adequately takes into account and reflects all of the mitigating factors to which the applicant was entitled.

It follows that the application for leave to appeal against sentence should be dismissed.

DAVIES JA:  I agree.

JERRARD JA:  I agree.

DAVIES JA:  The application is dismissed.