R v Clifford; ex parte Attorney-General
[2006] QCA 492
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- Unreported Judgment
- Appeal Determined (QCA)
- R v Clifford; ex parte Attorney-General[2006] QCA 492
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R v Clifford; ex parte Attorney-General[2006] QCA 492
R v Clifford; ex parte Attorney-General[2006] QCA 492
SUPREME COURT OF QUEENSLAND
PARTIES: | R |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | |
DELIVERED ON: | 24 November 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 November 2006 |
JUDGES: | Williams and Keane JJA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Appeal against sentence dismissed |
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 respondent pleaded guilty to one count of unlawful carnal knowledge of a child under 16 - where at the time of the offence the respondent was 29 and the complainant was a 13 year old girl - where the respondent pleaded guilty at the earliest opportunity, showed genuine remorse and has good prospects of rehabilitation - the respondent was sentenced to nine months imprisonment wholly suspended for an operational period of 12 months - whether the sentence imposed was manifestly inadequate in all the circumstances Criminal Code Act 1899 (Qld) s 215(2), s 669A(1) AB v R [1999] HCA 46; (1999) 198 CLR 111, cited R v AS [2004] QCA 220; CA No 160 of 2004, 2 July 2004, distinguished R v C [2002] QCA 46; CA No 369 of 2001, 22 February 2002, cited R v HZ [2005] QCA 468; CA No 155 of 2005, 14 December 2005, cited R v PW [2005] QCA 177; CA No 102 of 2005, 30 May 2005, cited R v T; ex parte Attorney-General of Queensland [2002] QCA 132, CA No 30 of 2002, 12 April 2002, cited R v Waerea; ex parte Attorney-General of Queensland [2003] QCA 20; CA Nos 287 and 307 of 2002, 7 February 2003, cited |
COUNSEL: | M J Copley for the appellant D C Shepherd for the respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent |
[1] WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Keane JA, and I agree with all that is said therein. There was one further submission made by counsel for the appellant which I will deal with briefly.
[2] The events in question occurred in Townsville. Counsel for the appellant submitted that the intercourse which occurred at the respondent's home should be considered in the light of the fact that the respondent drove the complainant to his home rather than taking her to the nearest police station. As Keane JA has noted, the respondent, accompanied by a friend, was driving at about 12.30 am to the nearest McDonald's to get some food. They came across the complainant who was running down the road apparently in a distressed condition. Once the vehicle stopped the complainant opened the back door and jumped into the car saying, "drive, drive". The respondent enquired what the problem was and where she wanted to go. She initially said she wanted them to take her to a friend's place at Ingham, which was approximately 130 kms away. The respondent indicated that he was not prepared to do that. The respondent then asked the complainant if he could drop her home, but she made it clear that she did not want to be taken home. She also refused to provide her home address.
[3] There is nothing in the evidence to suggest that the complainant would have been agreeable to being taken to a police station. Given her age and her intoxicated condition it would be surprising if she had agreed to be taken to a police station.
[4] In the circumstances the Court should not be too critical of the respondent for taking the complainant to his home. The following morning, at the complainant's request, he drove her to a friend's place.
[5] Given all of the circumstances of the case, the fact that the respondent did not take the complainant to a police station after initially picking her up is not a consideration which indicates that the sentencing judge erred in imposing the sentence which she did.
[6] As previously stated I agree with the reasoning of Keane JA and with the order proposed.
[7] KEANE JA: On 21 August 2006, the respondent pleaded guilty to one count of unlawful carnal knowledge of a child under 16 years of age. The respondent was sentenced to nine months imprisonment, wholly suspended for an operational period of 12 months.
[8] Pursuant to s 669A(1) of the Criminal Code Act 1899 (Qld), the Attorney-General appeals against that sentence on the ground that it is manifestly inadequate having regard to the gravity of the offence and the need for a deterrent sentence.
The circumstances of the offence
[9] On 23 January 2005, the complainant was two weeks short of her 14th birthday. The respondent was 29 years of age. At about 12.30 am, the respondent was driving a motor vehicle with a friend down the street where the complainant lived, when he saw the complainant running down the street, and pulled over. The complainant, who had been drinking with friends and was very drunk, was fleeing from her mother, although the respondent did not know that. He enquired as to what was wrong, and she jumped into his car. She refused to tell him where she lived or where she wanted to go. She went to McDonald's with the respondent and his companion, and then returned to his house where she asked to be allowed to have a shower.
[10] The complainant showered. When the respondent went to bed, she followed the respondent into his bed. Sexual intercourse occurred. Next morning, the respondent drove the complainant to a friend's house where he dropped her off.
[11] When police arrived at the respondent's house later that day, still looking for the complainant, the respondent made what the learned sentencing judge described as "open and honest admissions" of his offending conduct. He told police that he thought the complainant was 15 years old.
The respondent's circumstances
[12] The respondent was 31 years of age when he was sentenced. He had a criminal history involving drug offences and street offences. That history was of little significance in the present case. None of these offences involved similar misconduct, and the last of these offences occurred in 2000. The applicant has not previously served any time in prison.
[13] At the time of the offence, the respondent was the sole carer of his baby son, the child's mother having left him and the child some months before. After the respondent was charged, the Department of Child Safety took the child and gave him into the care of the child's mother.
The sentence
[14] The learned sentencing judge noted that the respondent had taken care to ensure that the complainant consented to intercourse. Her Honour referred to the seriousness of the offence, and observed that the range of sentences for this kind of offence began at 12 months imprisonment.
[15] The learned sentencing judge accepted that the respondent had pleaded guilty at the earliest possible opportunity. Her Honour accepted that the respondent was filled with remorse for his offending.
[16] It was submitted on the respondent's behalf that, had it not been for the respondent's admissions, he might not have been convicted of the offence for which he was being sentenced. That view is supported by the complainant's victim impact statement in which the complainant said of the pain felt at the time of the offence: "I don't know because I don't really remember what happened because I was drunk. I just want it over."
[17] The learned sentencing judge considered the possibilities of an intensive correction order, and a prison sentence which involved four months in custody. In the end, her Honour decided upon a fully suspended sentence because of the "very special circumstances of the present case", which included the respondent's loss of custody of his infant son.
The appeal
[18] Under s 215(2) of the Criminal Code, the maximum penalty for the offence in question is 14 years imprisonment. On behalf of the Attorney-General, it is submitted that a sentence of nine months imprisonment, fully suspended, is manifestly inadequate. I shall return to consider this broad submission after first noting the other submissions advanced on behalf of the Attorney-General.
[19] It is submitted on behalf of the Attorney-General that the learned sentencing judge failed to take into account the marked disparity in age between the respondent and the complainant.[1] This submission cannot be accepted. At the very outset of her Honour's sentencing remarks, she referred to the differences in age between the complainant and the respondent. Her Honour was clearly aware of that disparity, and did not err by failing to take it into account.
[20] It is also submitted that her Honour overlooked the fact that, on the appellant's own admission to the police, he believed that the complainant was only 15 years old because her Honour made no reference to this circumstance. But the absence of reference to this circumstance by the learned sentencing judge in no way suggests that her Honour overlooked the circumstance that the respondent knew that he was committing an offence when he had intercourse with the complainant. It was clear that the respondent knew that he was committing an offence; and at no stage did he suggest otherwise.
[21] Next it is submitted on behalf of the Attorney-General that the learned sentencing judge accorded undue significance to the respondent's cooperation with the authorities in that her Honour remarked that had it not been for the respondent's admissions he "would not have been charged with anything". It is said that the respondent might have been successfully charged with some other offence arising out of the incident had he not made full admissions. It is far from clear that this is so, having regard to the complainant's statement that she did not remember what had happened. But, in any event, the respondent's admissions were a substantial demonstration of genuine remorse which entitled the respondent to consideration over and above that referable to his plea of guilty.[2]
[22] I now return to the broad submission advanced on behalf of the Attorney-General that the sentence is manifestly inadequate having regard to the gravity of the offence.
[23] The circumstances in which this kind of offence may be committed are so various as to make it impossible to sustain a submission that a wholly suspended sentence can never be appropriate in a case of unlawful carnal knowledge. Usually, however, where there is, as here, a marked disparity in age between the victim and the offender, the exploitative character of the offence, and the harm which is caused to the victim, mean that a prison sentence should be imposed. That this is so is illustrated by the decision of this Court in R v AS.[3] In that case, a sentence of 12 months imprisonment was imposed at first instance where there were two offences of unlawful carnal knowledge, separated by about a year. While the second offending in R v AS did not involve intercourse, it was plainly a more serious case than the present. There was an age discrepancy of about 26 years between offender and a degree of exploitation not present in this case. But even in that case, this Court reduced the sentence on appeal by an order suspending the sentence after six months actual imprisonment had been served. In R v AS, there was an early plea to a statement of agreed facts, but it does not appear that offender made immediate and full admissions as occurred in this case.
[24] In the present case, there was no breach of trust, on the respondent's part, of the sort which often occurs in cases of this kind.[4] Nor was there any planning on the part of the respondent whereby he set out to take advantage of the complainant.[5] The respondent's offence was, at worst, opportunistic; it was certainly not predatory.[6]
[25] Neither the complainant's victim impact statement, nor any other evidence, gives rise to a suggestion that the complainant has suffered any enduring adverse effects as a result of the offence. The victim impact statement suggests that the complainant drinks alcohol and argues with her mother. The complainant clearly had problems in this regard prior to the commission of the offence. It would be quite wrong to attribute to the respondent blame for the fact that the complainant drinks alcohol and fights with her mother.
[26] The circumstances of this case were, as the learned sentencing judge said, "very special". They might be said to verge on the bizarre. The respondent's frank acknowledgment of responsibility suggests genuine remorse on his part and good prospects of rehabilitation. Especially is this so when there is no suggestion of further offending in the 18 months between the respondent's arrest and his sentence. In these circumstances, the strong reluctance of the learned sentencing judge to send the respondent to prison for the first time is understandable.
[27] It was, in my respectful opinion, open to the learned sentencing judge to conclude that no good purpose would be served for the complainant, the respondent or the community by ordering the respondent's imprisonment for a short period. It was open to her Honour to conclude that the prospects of rehabilitation outweighed the claims of deterrence in this most unusual case.
Conclusion and order
[28] In my respectful opinion, it has not been demonstrated that the sentence was manifestly inadequate in the special circumstances of this case.
[29] I would dismiss the appeal.
[30] CHESTERMAN J: I agree with Keane JA.
Footnotes
[1] R v Waerea; ex parte Attorney-General of Queensland [2003] QCA 20 at [15].
[2] AB v R (1999) 198 CLR 111 at 131 – 132 [52] – [55], 147 – 148 [97] – [99], 155 – 156 [113] – [114]; R v PW [2005] QCA 177 at 7 – 8.
[3] [2004] QCA 220.
[4] Cf R v C [2002] QCA 46; R v HZ [2005] QCA 468.
[5] Cf R v T; ex parte Attorney-General of Queensland [2002] QCA 132.
[6] Cf R v HZ [2005] QCA 468 at [34].