R v LV[2007] QCA 237

SUPREME COURT OF QUEENSLAND 

THE CHIEF JUSTICE:  The applicant seeks leave to appeal against a sentence of nine years' imprisonment imposed upon him in the District Court on the 23rd of April 2007.  He pleaded guilty to a number of offences, four counts of rape, three digital, one penile; eight counts of indecent treatment of a child under 16 years of age with a circumstance of aggravation; one count of attempted indecent treatment of a child under 16 and one count of sexual assault.

There were four complainants.  Three of them were daughters of a woman with whom the applicant was involved in a de facto relationship.  Those children were aged 9, 11 and 12 to 13 years at the time of the offences.  The fourth complainant was a 23 year old woman who lived in a flat at the same house.  I will refer to the complainants respectively as A, B, C and D. 

The first four counts concern B, the 11 year old daughter.  For count 1, the applicant locked the doors of a house at Blacksoil and took the child to a bedroom, removed her bra and slipped his hands under her shirt touching her on the breasts.  She cried and he stopped. 

Count 2 occurred when he touched her vaginal area while they were out driving.

For count 3, he fondled her breasts as to drove her to a friend's house.

As to count 4, she complained of a sore tooth.  In her bedroom, the applicant put some rum mixture on the tooth and then, "...began to rub her vagina before he placed his fingers inside her vagina". 

A Nolle Prosequi was entered in respect of count 7. 

Counts 5 and 6 and 8 and 9 concerned A, the nine year old child.  For each of counts 5 and 6, the applicant went into the child's bedroom and put his fingers, "inside the vagina without removing her clothing".

In count 8, the applicant stopped the car and fondled the child's breasts, commenting inappropriately that she was starting to wear a trainer bra. 

In count 9, at home, the applicant pulled on the front of the child's pyjama pants and attempted to put his hand down her pants.

Counts 10 to 14 concern C who was then 12 to 13 years of age.  In count 10, the applicant touched the child "on the vagina outside her clothing with his fingers at least twice" while the family were dancing in the lounge room after watching a television show.

Count 11 occurred while the child was accompanying the applicant on a road trip in his truck.  She fell asleep while the truck was stopped at Banana.  When she woke, the applicant made her lie on an "esky-type object", pulled her pants down and penetrated her with his penis for about 20 seconds.  The child was in considerable pain.

Count 12 occurred on the same trip when the applicant exposed his penis to the child while in the truck.

Count 13 concerns his having shown her a pornographic picture asking her to lie back as posed in the picture.

As to count 14, the applicant touched the child "in the vaginal region on top of her clothes" while she was sitting on his lap. 

The complainant in count 15, D, was a 23 year old woman living in a flat at the same house as the family.  One day while she sat in the applicant's truck with her 18 month old child on her lap, the applicant touched her breast.

When interviewed by the police about these things, the applicant said "why would I want to do that I'm sterile".  As it turned out, that should be regarded as a false denial.

Although the applicant pleaded guilty and credit was therefore due, and although he agreed to a full hand-up committal, which was held on the 2nd of August 2006, the matter did not then proceed directly to sentence but was interrupted by a submission from the defence which necessitated a further conference between the prosecutor and one of the complainants.  Then, when the matter was listed for sentence in March this year, the applicant aborted the proceeding, leading to the setting of a date for the pre-recording of the complainant's evidence.

Further conferences were then organised with the complainants.  It was then, however, that the applicant said he would plead guilty and that was secured without delay on the 3rd of April 2007.

He was sentenced before another Judge on the 23rd of April 2007.  As may be seen from that history, the lead up to the pleas was attended by a degree of changing of ground which would have been unsettling for the complainants notwithstanding that in the end they were saved the need to give evidence at the hearing.

The offences were committed over a substantial period, 1st January 2005 to 28 April 2006.  A Victim Impact Statement signed by the mother of the daughters is dated 22nd February 2007.  It reveals that the complainant girls have been traumatised by the applicant's offending.  They have become distrustful of males and fear the applicant's return.

As at the date of the Victim Impact Statement, the girls were receiving counselling twice a week.  The 11 year old complainant, B, apparently contemplated self harm, asking her mother how to slit her wrists.  The girls were taunted by school mates who had learnt of the allegations.

The sentencing Judge was rightly strongly influenced by the circumstance that the applicant was previously convicted in the District Court in December 1994 on four counts of indecent dealing with a child under the age of 12 with circumstances of aggravation.  He was then imprisoned for 12 months with a recommendation that he be considered for parole after serving four months.

The complainants in those instances were again children of a woman with whom the applicant was engaged in a de facto relationship.  There were four complainant girls.  Three of them were aged seven and a fourth was aged only four.  The conduct involved touching the vagina either directly or through clothing.  The sentencing Judge, in incarcerating the applicant, described a serious feature as the involvement of four complainants.

The instant sentencing Judge pointed to the similarity between the circumstances in 1994 and those of the present case - in all of them the circumstance of aggravation being that the complainant children were in the applicant's care - while noting, as the disturbing development, the applicant having progressed from touching to actual digital and penile penetration.

The Crown Prosecutor before her Honour submitted that the sentence should fall within the range of nine to ten years.  Defence counsel submitted that should be reduced to seven to eight years to take account of the pleas of guilty.  The Judge said, "It is the previous history that leads me to impose a higher penalty than that which your counsel has asked for, and, as I said, it is because of the predatory nature of that behaviour; the fact that you had a similar mode of operation in the past - that is that you targeted the children of somebody that you were in a relationship with, and worse, that there is evidence of a progression in seriousness of your offending.  I think that that means that the protection of the community and considerations of general and personal deterrence mean that I should impose a penalty towards the upper end of the range rather than to give you the benefit of leniency."

Mr Devereaux, senior counsel, submitted that her Honour erred in not imposing sentences for the respective offences.  That should have been done and the respondent accepts that.  Were, for argument’s sake, the plea to the count of penile rape, count 11, to be set aside for some reason, the Court may need to know the sentences relevant to the remaining counts.  I am content to adopt the range of penalty which has been put forward by Mr Devereaux in respect of those other counts.

Against a sentence of nine years for the penile rape, which of course Mr Devereaux did not accept as being appropriate, other appropriate sentences would nevertheless have been as follows:

Count 1Two years' imprisonment;

Count 2Three years' imprisonment;

Count 3Two years' imprisonment;

Count 4Five years' imprisonment;

Count 5Five years' imprisonment;

Count 6Five years' imprisonment;

Count 8Three years' imprisonment;

Count 9Two years' imprisonment;

Count 10Three years' imprisonment;

Count 11The rape - nine years' imprisonment;

Count 12Three years' imprisonment;

Count 13Three years' imprisonment;

Count 14Three years' imprisonment; and

Count 15Two years' imprisonment.

Mr Devereaux submitted that because the Judge did not impose sentences in respect of all of the counts, "The sentencing discretion miscarried and this Court must sentence afresh" including, as he would submit, for the rape, but he did not pursue that strongly before us in his oral submissions.

Her Honour plainly intended, as Mr Devereaux accepts, that the sentence of nine years was to apply to the count of penile rape, count 11.  The error was simply in her not proceeding then to assign penalties to all of the other respective counts.  That can now be rectified without necessarily interfering with the nine years imposed clearly in respect of the penile rape.

Mr Devereaux challenged the nine years imposed in respect of the rape on the basis inadequate weight had been given to the applicant's pleas of guilty which saved the need for the four complainants to give evidence; and by reference to the relative seriousness of the offences, in respect of which he submitted that "although there are 14 offences, the majority are not of the more serious type.  Even count 11 was at the lower end of seriousness for such offences - it was committed over a brief period of time and did not involve ejaculation, further serious violence or threats". 

Mr Devereaux submitted before us here orally today that given the Judge’s emphatic reference to the prior offences, her Honour may, in selecting that nine year term, have subconsciously re-sentenced for those earlier offences. But there is no inkling of any basis for that contention. 

He also submitted that her Honour may have ignored, in assessing the weight to be attributed to the pleas of guilty, what he termed the “forfeit factor”:  that is, forgoing the prospect, had the applicant gone to trial, that he may have been acquitted on one or more of the charges to which he pleaded guilty. 

In my view that ignores the feature that the pleas of guilty involved admission of all elements of those charges.  I consider it would be wrong for this Court to speculate what might have occurred had the applicant gone to trial.  What is relevant is co-operation in the administration of justice and there is no question but that her Honour was alive to that.

Obviously, the serious features of the case are the similar offending a decade earlier for which the applicant had been imprisoned; his repetition of similar offending with, in addition, a progression to the undoubtedly very serious offences of penile rape, especially where committed on a 12 to 13 year old girl with the applicant himself being aged 49 to 50, together with the digital rapes of a nine year old and an 11 year old; that there were four complainants; that the conduct continued over a substantial period, about 15 months; that the child complainants trusted the applicant as their mother's de facto partner with whom they lived; the involvement of a mature-aged complainant also suggesting that the applicant simply could not help himself; and the deleterious long term effect on the children.

Mr Devereaux submitted that her Honour must have started from too high a level, probably 12 years' imprisonment or more, he submitted, before discounting for the plea of guilty.  A sentence of that order, he submitted, would be appropriate to a case of more serious offending involving multiple counts of rape or violence, or for a charge of maintaining an unlawful sexual relationship and he referred to the The Queen v. PAD [2006] QCA 398, The Queen v. C [2003] QCA 134, The Queen v. R [2000] QCA 279 and The Queen v. M [1999] QCA 344.

Against that there are here the particularly relevant circumstances of the applicant's prior offending, and that there were as many as four complainants involved in this offending, stretching over a period of about 15 months. 

In the Queen v. C [2003] QCA 134, the respondent to an Attorney's appeal had pleaded guilty to an aggravated charge of maintaining a sexual relationship with a child under 16 years of age and three counts of rape.  The offences occurred over a two and a half year period while the complainant was aged 13 to 16 years and the respondent 30 years of age.  He had no significant prior criminal history.  On appeal he was imprisoned for 10 years carrying with it a serious violent offence declaration.  On appeal this statement was made:

"The cases suggest that for roughly comparable offending and after allowing for a plea of guilty, a range generally commencing at about the level of 10 years' imprisonment would apply.  One must observe, however, that the circumstances of these offences exhibiting infinite variation, one should not be rigidly tied to ranges as such, but flexible enough to give due allowance to significant variations from case to case.  Having said that, however, it is my view difficult to see in a case generally like this, after allowing for the plea, that one could responsibly proceed below 10 years' imprisonment."

Allowing for this applicant's particularly significant prior criminal history, and there being not just one but as many as four complainants, this nine year term of imprisonment for the rape sits sufficiently comfortably with that observation.

Counsel for the respondent referred to two cases. Tronc CA No 359 of 1989 drew a 10 year term of imprisonment in 1990 for three rapes and two counts of indecent dealing involving two stepdaughters aged eight years and 12 years.  Tronc was 41 years old with no prior criminal history.  The offences took place "at about the same period of time".  There was no violence.  Tronc went to trial.  Differences here, apart from this applicant's having pleaded guilty, are that there were here four complainants, the offences extended over a period of 15 months, and the applicant bore the burden of a significant past criminal history.

Climas, CA No 99 of 1988, plied his 12 year old victim with liquor and raped her when she was intoxicated.  She was insensitive to the events.  Climas was given an 11 year term. 

I am not persuaded that the sentence of nine years imposed here for the penile rape was manifestly excessive, or that her Honour erred in her approach to the matter, save for not setting the terms in respect of the other offences.  I would, because of that, nevertheless grant leave to appeal, and allow the appeal to the extent of formally imposing terms of imprisonment as follows:

Count 1Two years' imprisonment;

Count 2Three years' imprisonment;

Count 3Two years' imprisonment;

Count 4Five years' imprisonment;

Count 5Five years' imprisonment;

Count 6Five years' imprisonment;

Count 8Three years' imprisonment;

Count 9Two years' imprisonment;

Count 10Three years' imprisonment;

Count 11Confirmed at nine years' imprisonment;

Count 12Three years' imprisonment;

Count 13Three years' imprisonment;

Count 14Three years' imprisonment;

Count 15Two years' imprisonment;

With all terms to be served concurrently.

JERRARD JA:  I agree with the orders proposed by the learned Chief Justice and with the reasons he has expressed in his careful analysis of the offences, proximate sentences, the reason why those sentences are appropriate and his analysis of the sentences imposed in comparable cases.

MULLINS J:  I also agree.

THE CHIEF JUSTICE:  The orders are as I have indicated.