R v PAC[2006] QCA 327

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:  The applicant pleaded not guilty to four counts of indecent treatment of a child under 16 years with a circumstance of aggravation and one count of indecent treatment of a child under 16 years.  He was convicted on each count after a two day trial.  He was sentenced on each count to two years' imprisonment.  He has abandoned his appeal against conviction but applies for leave to appeal against sentence contending that it was manifestly excessive.

The offences occurred between 1987 and 1990 when the applicant was aged between 56 and 59 years.  He was 74 years old at sentence.  He had no prior convictions.

The offences occurred as follows.  The complainant on each count was the applicant's stepdaughter.  She was between 11 and 12 years old at the time of the offences.  When she was living with the applicant and her mother at a caravan park and the mother was in hospital the applicant asked her to sit on his lap.  He rubbed her leg, then the inside of her thigh and finally her vagina (count 1).  One night while her mother was in hospital he suggested that she sleep in bed with him.  He again rubbed the inside of her thigh and her vagina (count 2).  After the family moved to a different area, in about August or September 1988, the applicant came into her bedroom, lifted her nightie, rubbed her leg and then rubbed her vaginal area (count 3).  When her mother was at bingo the applicant rubbed the complainant's thigh, spread her legs apart and performed an act of cunnilingus on her (count 4).

The following year, officers of the Children's Services Department spoke to the complainant at school.  The applicant's sexual conduct "seemed to die off" from that point but there was a final occasion when he rubbed her thigh and digitally penetrated her (count 5).  The complainant's victim impact statement records the serious effect of the applicant's offending on her and her close relationships with others.  She has been having counselling which is ongoing.

The maximum penalty for each of counts 1 to 3 was seven years imprisonment, for count 4 five years imprisonment, and for count 5 10 years imprisonment.

The prosecutor at sentence contended that the applicable penalty was two to three years imprisonment relying on the comparable cases of R v S [2002] QCA 300; CA No 69 of 2002, 15 August 2002; R v K [1998] QCA 262; CA No 168 of 1998, 14 August 1998; and R v B [1994] QCA 514; CA No 360 of 1994, 26 October 1994, to support that submission.

Defence counsel at sentence set out the applicant's good work history as an aircraft engineer in the Royal Air Force from 1949 until 1971.  He received a Long Service Medal and a Good Conduct Medal for his service with the RAF.  He developed cancer in a leg muscle after injuring the muscle in an air crash in the course of his employment in 1957.  The cancer went into remission until 1998.  His leg was finally amputated after more conservative treatment was unsuccessful.  He has had a longstanding relationship with the complainant's mother, which was continuing at sentence.  There had been absolutely no recurrence of his offending behaviour.  A medical report from his general practitioner indicated that he was wheelchair-dependent since the amputation; he has considerable difficulty transferring from wheelchair to toilet and bed as his remaining left leg has chronic oedema; he also suffers rheumatoid arthritis requiring Prednisone for control and causing him back, neck and shoulder pain; the side effects of the Prednisone include easy bruising, fluid retention and fatigue.  Defence counsel emphasised that, on the complainant's evidence, there had never been any suggestion of threats, bribes, beatings or bullying or aggressive behaviour towards her.  He submitted that whilst a two-year head sentence was appropriate, an earlier than normal recommendation for post-prison community-based release was warranted because of the mitigating factors.

The learned sentencing judge noted the serious aspects of the offending which still haunted the complainant and spoiled her life as a child, as well as the applicant's prior good history and his age.  His Honour stated he would make no recommendation for early release because this was a trial and the complainant was forced to give evidence.  After passing sentence the judge added that in imposing the two years' imprisonment he had taken into account the applicant's age and ill health and would otherwise have imposed a higher sentence.  The judge directed that a copy of the medical report be provided to the Corrective Services authorities.

The applicant now contends that the sentencing judge failed to give sufficient weight to the applicant's age and ill health, particularly as he has no subsequent offences.  In R v Mrsic; ex parte A-G (Qld) [2005] QCA 349; CA No 185 of 2005, 23 September 2005, Keane JA (Jerrard JA and Cullinane J agreeing) noted:

"... This is not a case where an elderly person comes to be sentenced many years after he or she has committed a crime and has since led a blameless life.  In such a situation, considerations of deterrence and protection of the community are of little moment because of the good character the offender has demonstrated during the time between the commission of the offences and the date of sentence.  See, eg, R v CC [2004] QCA 187; CA No 51 of 2004, 31 May 2004.  ... 

... The respondent's ill health...is not such as to expose him to undue hardship in prison.  It is, therefore, difficult to see how consideration of the respondent's health could warrant the recommendation which his Honour made.  As this Court said in R v Irlam; ex parte A-G [2002] QCA 235; CA No 157 and CA No 173 of 2002, 28 June 2002 at [76]:

   'While an offender's ill health is a mitigating factor in circumstances where imprisonment will

   lead to additional burdens beyond those experienced by others, that feature must not be allowed to

   overwhelm appropriate reflection of the grave nature of offences like these.'"

The applicant contends that a sentence of two years imprisonment suspended after six months with an operational period of three years should be substituted for the original sentence which was manifestly excessive.

Ill health is usually only considered a mitigating factor when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health: R v Smith (1987) 44 SASR 587 at 589; R v Pope; ex parte A-G (Qld) [1996] QCA 318; CA No 271 of 1996, 30 August 1996; and R v B [2000] QCA 42; CA No 345 of 1999, 24 February 2000.

The offences of which the applicant was convicted were serious breaches of trust committed by a mature man on his vulnerable 11- and 12-year old stepdaughter.  They have had a disastrous impact on her life.  He has shown no remorse nor co-operation with the administration of justice.  The appropriate penalty here was in the range of two to three years imprisonment: cf. S, K and B.  The judge took into account the applicant's ill health by imposing a sentence at the lower end of that range.  The material before this Court does not demonstrate that the applicant's ill health will be especially gravely adversely affected by imprisonment.  Although it can readily be inferred that prison life will be harder for him than an able-bodied younger person, the judge recognised that factor in imposing a sentence at the lower end of the range.  The applicant will be eligible to apply for parole after serving 12 months imprisonment.  The applicant's age, ill health and prior and subsequent good character are mitigating factors but do not entirely counterbalance the most serious nature of his offending and its impact on the complainant.

The sentence was not, in my view, excessive.  I would refuse the application for leave to appeal.

JERRARD JA:  I agree.

ATKINSON J:  I agree.

THE PRESIDENT:  That is the order of the Court.