R v VF[2004] QCA 239

SUPREME COURT OF QUEENSLAND

MULLINS J:  The applicant applies for leave to appeal against the sentences imposed on him on 6 April 2004 in the District Court after pleading guilty to five counts of rape, three counts of indecent treatment of a girl under 12 years, one count of indecent treatment of a girl under 17 years and one count of indecent treatment of a girl under 16 years with a circumstance of aggravation that she was a lineal descendant.

The effective sentence that was imposed was eight years' imprisonment as that was the sentence imposed for each of the rape offences.  Apart from the offence of indecent treatment of a child under 16 years where the complainant was a granddaughter of the applicant, the applicant's daughter was the complainant in respect of the offences.

The applicant was born on 17 February 1928.  He was 76 years at the time of sentence.  The offences against his daughter were committed when he was between 45 and 50 years and she was between 11 and 16 years old.  The offence against his granddaughter was committed when he was 67 years old.

It was as a result of the granddaughter's making a complaint to the police that her mother, the applicant's daughter, complained to the police about the applicant's offending against her.  Admissions were made by the applicant about his offending in a pretext telephone call with the daughter.

The detail of the abuse against the daughter were set out in a schedule tendered before the learned sentencing Judge.  Aggravating features included digital penetration when the daughter was about 11 years old, penile penetration from about the same age, internal ejaculation and masturbation of the applicant by the complainant.  The regular abuse ceased when the complainant left home at the age of 16 years.

Shortly after, the complainant returned home to look after her mother after an operation.  At this time the applicant tried to kiss the complainant and rub her breasts and he was caught doing so by his wife who told him to keep his hands off the complainant.  This incident was the subject of count 9 which was the one count of indecent treatment of a girl under 17 years.

Mr Martin of counsel for the respondent conceded that the applicant should not have been charged with count 9 as the complainant was 16 years old at the time of the incident and there was no longer an offence of indecent treatment in respect of a 16 year old girl at the time the applicant was charged with the offence.  The conviction for count 9 should therefore be set aside.  The setting aside of that conviction is immaterial, however, in respect of the consideration of the effective sentence.

The applicant had, throughout the years of offending against his daughter, coerced her by threatening that unless she complied with his requests he would start abusing her younger sister.  The applicant had no previous convictions.  He made admissions when interviewed by the police.  There was a full hand-up committal and his guilty pleas were timely.

There was a medical certificate tendered which stated that the applicant suffered from ischaemic heart disease with angina pectoris and had undergone coronary bypass surgery in 1994.  It also referred to his asthma being well-controlled and that he had osteoarthritis affecting his right hip.

The learned sentencing Judge noted that the applicant's health problems were not unexpected for a person of his age and were able to be controlled or treated whilst the applicant was in custody.  The learned sentencing Judge referred to the breach of trust involved in the applicant taking advantage of his position within the family to offend against his daughter and referred to the significant psychological and emotional problems that the complainant had suffered as a result.

The learned sentencing Judge expressly stated that the applicant's age should not substantially reduce what would otherwise be an appropriate sentence for the corruption of his daughter.  The learned sentencing Judge expressly stated that he took account of the guilty pleas in fixing the head sentences.

On this application the applicant is self-represented.  His application for leave to appeal against sentence was drawn by the solicitors who acted for him on the sentence.  The grounds for the application were shown as (a) the finding that the age and/or health of the applicant was not a basis for mitigation of the sentence, was an error of law, (b) failure to make sufficient allowance to the applicant for his timely pleas of guilty, and (c) the sentence was manifestly excessive in all the circumstances.

There is no principle that advanced age and ill health must result in a reduction of sentence.  See BG (2000) 111 A Crim R 302.  The age and the health of the applicant were expressly considered by the learned sentencing Judge and his conclusion that in all the circumstances there should be no reduction or no substantial reduction of sentence on that account is unexceptional.

The other grounds of appeal were directed at the fixing of the sentence of eight years for each of the rapes.  Both counsel on the sentence made reference to the Schedule of Sentences maintained by the office of the Director of Public Prosecutions for the offence of rape where the complainant is under 17 years.  The comparable sentences would have supported a sentence greater than eight years' imprisonment, if there had been a trial, taking into account the period over which the offending was committed against the daughter, the number of offences and the gross breach of trust on the part of the applicant.

The sentence of eight years for each of the rapes was within the range of sentences that was appropriate in the circumstances.  The application for leave to appeal against sentence should be refused.  The conviction in respect of count 9 should be set aside.

DAVIES JA:  I agree.

MACKENZIE J:  I agree.

DAVIES JA:  The orders are as indicated by Justice Mullins.