R v GAI; ex parte Attorney-General
[2009] QCA 298
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- R v GAI; ex parte Attorney-General[2009] QCA 298
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R v GAI; ex parte Attorney-General[2009] QCA 298
R v GAI; ex parte Attorney-General[2009] QCA 298
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | |
DELIVERED ON: | 9 October 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 September 2009 |
JUDGES: | Keane, Holmes and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Appeal dismissed |
CATCHWORDS: | CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES – INCEST – GENERALLY – where respondent convicted on plea of guilty of two counts of incest with his daughter who was intellectually impaired – where respondent previously convicted of numerous sexual offences with children, including his granddaughter – where respondent sentenced to concurrent terms of nine years imprisonment – where Attorney-General appealed against sentence and urged proper sentence was 10 years imprisonment with an automatic serious violent offence declaration – where Attorney-General argued that risk posed to community by respondent warranted longer period in custody – where respondent not charged with offence relating to an intellectually impaired person – whether sentence imposed a proper sentence Child Protection (Offender Reporting) Act 2004 (Qld) Criminal Code 1899 (Qld), s 208, s 669A Penalties and Sentences Act 1992 (Qld), s 9, s 161A R v Aston (No 2) [1991] 1 Qd R 375, considered R v B (2000) 111 A Crim R 302; [2000] QCA 42, considered R v Boney, ex parte Attorney-General [1986] 1 Qd R 190, cited The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31, applied R v NJ [2008] QCA 331, cited R v WN [2005] QCA 359, distinguished Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7, cited Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14, cited |
COUNSEL: | A W Moynihan SC, with L P Brisick, for the appellant C W Heaton for the respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent |
[1] KEANE JA: On 1 December 2008 the respondent was convicted on his own plea of two counts of incest with his daughter. He was also convicted of two offences involving contravention of the Child Protection (Offender Reporting) Act 2004 (Qld) ("the CPORA").
[2] On 25 May 2009 the respondent was sentenced to concurrent terms of nine years imprisonment in respect of the offences of incest. A period of 411 days pre-sentence custody was declared to be time served under the sentences. The respondent was sentenced to concurrent terms of three months imprisonment in respect of the summary offences. The respondent's parole eligibility date was fixed at 9 April 2012.
[3] The learned sentencing judge directed that a pre-sentence report dated 28 January 2009 and a psychiatric pre-sentence report by Dr R J Moyle be made available to the prison authorities and placed with the respondent's confidential prison file.
[4] The Attorney-General appeals to this Court pursuant to s 669A(1) of the Criminal Code 1899 (Qld) on the ground that the sentence for the incest offences is manifestly inadequate.
The circumstances of the offending
[5] In 1979, the respondent, who was then 27 years old, entered into a de facto relationship with EJ. That relationship lasted approximately four years. Within a week of the end of that relationship, the respondent entered into another de facto relationship with EJ's then 17 year old daughter, NJ. The complainant in relation to the offences of incest of present concern, SJ, is the younger daughter of EJ and the respondent.
[6] The complainant SJ was 26 years old at the date of the offences which occurred on 29 and 30 March 2008.
[7] The respondent had been in custody for earlier offences to which I shall refer in due course. He was released on parole in March 2007. Shortly after his release, he moved with the complainant's mother into a caravan park in a country town. The complainant SJ moved into the same caravan park in January or February 2008.
[8] On 29 March the respondent and the complainant watched television and videos together. Afterwards they went to the complainant's unit where he touched her breasts and vagina, pulled down her pyjama pants and had sexual intercourse with her. The complainant has significant intellectual difficulties: she did not recall this incident.
[9] On 30 March 2008 the complainant and the respondent again watched television together. They went back to her unit where he pulled down her pants from behind and pushed his penis into her anus. They had anal intercourse for about 30 minutes. The complainant said she found this painful. He told her that it was their secret and that she should not tell anyone or her aunty would punch her in the head.
[10] The summary offences against the CPORA were committed when the respondent moved to the country town where the offences were committed without advising the authorities of his change of address and by reason of his failure to comply with the annual reporting requirements of the legislation.
[11] The respondent made admissions to police that he had engaged in two acts of vaginal intercourse with the complainant. He denied the sodomy. His admissions formed the basis for the charge relating to the incident of 29 March 2008: as has been noted, the complainant did not recall this incident. The respondent told police that he thought it was okay to have sex with the complainant because she did not say anything. He did acknowledge, however, that it was not right for him to have sex with his own daughter.
The respondent's criminal history
[12] The respondent has a history of sexual abuse of NJ's daughter, JJ. This offending commenced when JJ was nine years old and continued until she was 16 years of age. He committed many sexual offences against JJ. When she was aged between 10 and 14 years of age, he raped her on six occasions. He raped her eight further occasions from the beginning of 1995 to early 1996 when she was between 14 and 15 years of age. The rapes involved prolonged intercourse and were accompanied by threats and the use of force. When JJ was between 15 and 16 years old, the respondent continued to rape her and also forced her to perform oral sex on him. His last act of rape of JJ occurred in June 1997: shortly afterwards, she complained to the police.
[13] In February 1998 the respondent was convicted of these and other offences, including a charge of maintaining a sexual relationship with a child under the age of 16 years from January 1990 to August 1996. On that occasion in 1998, the respondent was also convicted of two counts of rape of another 16 year old girl who was the daughter of EJ's sister.
[14] The respondent had originally denied any misconduct in relation to these complaints but pleaded guilty on the morning of his trial. He was sentenced to 10 years imprisonment. His full-time release date was 19 October 2007. He was released on parole on 8 March 2007.
[15] The respondent was 55 years old when he committed the offences of present concern and 56 years of age when he was sentenced.
[16] While the respondent was in custody, he attended a sexual offenders' treatment program.
The sentence
[17] The maximum penalty for incest is life imprisonment.
[18] Counsel for the Crown contended that the applicable range of sentence in this case was eight to 10 years imprisonment which might be structured in one of three ways:
● 10 years imprisonment with the consequence of an automatic serious violent offence declaration and a period of eight years in custody before the respondent became eligible for parole;
● eight or nine years imprisonment with a serious violent offence declaration under s 161A of the Penalties and Sentences Act 1992 (Qld);
● nine years imprisonment without a serious violent offence declaration and without any further moderation of the penalty by way of the fixing of an early parole eligibility date.
[19] Counsel for the respondent submitted to the learned sentencing judge that the respondent should be sentenced to eight years imprisonment without a serious violent offence declaration. It may be noted that counsel for the respondent did not submit that there should be further moderation of the respondent's sentence by the fixing of an early parole eligibility date.
[20] The learned sentencing judge noted Dr Moyle's opinion that the respondent is a significant danger to any female relative or any female living within his home or who visits a home in which he is living with any female member of his family. Dr Moyle noted that during his lengthy term of imprisonment the respondent had attended a Medium Intensity Sex Offender Program which he completed at a basic level. His intelligence is between mild intellectual disability and low-normal intelligence. He suffers from Parkinson's Disease and a debilitating skin disease.
[21] The learned sentencing judge considered that the respondent has little insight into his offending behaviour and that he is indifferent to the feelings of others. Dr Moyle expressed the opinion that the respondent was at moderate to high risk of re-offending on release in a seriously violent sexual way should he be released with nothing changed. There was scope for change, however, via medicine to lower his sex drive and his motivation to offend sexually. Close supervision may continue to be necessary to minimise the risk of re-offending.
[22] The complainant's victim impact statement shows that she has been seriously adversely affected by the appellant's offending. She now has a full-time carer and she has attempted suicide. There can be no doubt that the complainant has intellectual difficulties and that this circumstance is a matter of serious concern. On the other hand, it must be borne in mind that it was not alleged by the Crown that the sexual acts which occurred between the respondent and the complainant amounted to rape.
[23] The learned sentencing judge described the respondent's plea of guilty as "significant" because it saved the complainant the difficulty of giving evidence. His Honour went on to say:
"In my view, it's important to recognise your plea of guilty, particularly in that sense in which I've just described, by giving you, at least, some hope of release in the future. When cut away to their basics, the submissions from both the experienced barristers are not all that far apart. Having regard to the authorities, and given the fact that I don't intend to impose a 10-year sentence, I don't think this is a case in which I should make a discretionary declaration of conviction for a serious violent offence."
[24] Earlier in his sentencing remarks, his Honour had observed: "I'm sure the parole authorities, in the future, will have regard to my sentencing remarks in considering whether you should be released."
The arguments in this Court
[25] The appellant accepts that an offence of incest ordinarily attracts a sentence of the order of six years imprisonment.[1] But it is submitted that because of the respondent's criminal record, a sentence of 10 years imprisonment (with the consequence that it would automatically be classified as a serious violent offence requiring that eight years be served in actual custody) is necessary to provide personal deterrence to the respondent and to protect the community.[2]
[26] On the respondent's behalf it is submitted that the learned sentencing judge was so inordinately influenced by the respondent's criminal history that the sentence which was imposed was disproportionate to the criminality involved in the circumstances of the offending.
[27] Counsel for the respondent points out that this is not a case involving incest with a young child,[3] and argues that this case is analogous to R v WN[4] where a sentence of four and a half years imprisonment was imposed on an offender for one act of sexual intercourse with his 22 year old daughter. No actual violence was used in that case but the complainant suffered from borderline personality disorder which made her especially vulnerable. The offender in R v WN suffered from "cognitive and substantial intellectual difficulties". He had previously been convicted of incest with his sister for which he had been placed on a two year good behaviour bond.
[28] It is said on the respondent's behalf that the sentence in R v NJ suggests a range in the present case of four and a half to six years imprisonment. Even though the respondent has not applied for leave to appeal against the severity of the sentence imposed on him, he submits that it is open to this Court on the Attorney-General's appeal under s 669A(1) of the Criminal Code to "vary the sentence and impose such sentence as to the Court seems proper."
[29] It may be said immediately in response to the respondent's submission that in R v WN this Court was not concerned to express a view as to the upper end of the appropriate range of sentences. More importantly, the criminal history of the respondent in this case is so much more serious that there can be no real comparison between this case and R v WN. Together with Dr Moyle's report, the respondent's criminal history is such as radically to distinguish this case from R v WN. The protective purpose of punishment looms larger in this case than in R v WN because of the respondent's demonstrated predatory proclivities.[5]
[30] That the respondent poses a real threat to women with whom he comes in contact in a domestic context is clear from Dr Moyle's report and the respondent's criminal history. That having been said, the question on the appeal by the Attorney-General is whether an increase in the sentence imposed here is necessary to secure the protection of the community from the respondent.
[31] In this regard, it is, I think, important to acknowledge that, by virtue of his Honour's orders, the question as to the respondent's fitness for release back into the community will not arise as a matter of immediate concern until 9 April 2012. The extent to which the concerns bearing upon the respondent's release into the community bear upon the decision whether or not to release him can be assessed in light of the pre-sentence report and the report of Dr Moyle and what is then known of him and his response to changes of the kind discussed by Dr Moyle. The respondent may well not be considered to be of sufficiently low risk of re-offending to be released at that point; but that is an assessment which is better made in the light of the information then available about him. It is better to act on what can then be known rather than what might be predicted now.
[32] It may be borne in mind, as well, that the issue of the danger which the respondent might continue to pose to female members of the community can also be addressed under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). There is something to be said for the view that the Dangerous Prisoners (Sexual Offenders) Act provides a framework for the consideration of the extent to which the respondent should continue to be detained because he poses a risk to the safety of the community which is to be preferred to a sentencing necessarily dependent on the predictions of future behaviour.
[33] For these reasons, I consider that the sentence which has been imposed does not fail to give sufficient weight to considerations of personal deterrence and community protection.
[34] In relation to these considerations, as well as the need for proper denunciation of the respondent's offences, I would make the further observation that while the respondent's conduct, in light of his criminal history, is truly appalling, the fact remains that the offences of present concern did not involve any allegation of non-consensual sexual abuse. Nor was there any suggestion that the complainant's intellectual difficulties were such as to deny her the capacity to consent to the sexual contact which occurred. The respondent was not charged or convicted of any offence of which the complainant's intellectual impairment was an element.[6]
[35] To make these observations is in no way to excuse the respondent's conduct or to minimise its criminality, but it is necessary to keep in perspective the nature of the offending for which he was sentenced on this occasion. The criminality of that offending cannot be equated with that involved in the offences for which he was sentenced in 1998, and the respondent cannot be sentenced as if he had pleaded guilty to a charge of rape or sodomy with an intellectually impaired person. In The Queen v De Simoni,[7] Gibbs CJ, with whom Mason and Murphy JJ agreed, said:
"… where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty."
[36] Similarly, in R v Boney, ex parte Attorney-General,[8] McPherson J said:
"I respectfully adopt what was said by Gibbs C.J. on this point, which, it may be added, appears to be consistent with the decision in R. v. Harrison (1909) 2 Cr.App.Rep. 94. There the appellant was indicted for rape but convicted only of indecent assault. The trial judge imposed the maximum sentence, which was reduced on appeal, Jelf J. saying (at p. 96) that:
'… he [the trial judge] was not at liberty to take into consideration that in fact the prisoner might have been guilty of rape. We think that he must have taken that possibility into consideration.'
If the foregoing propositions or principles are applied to the evidence presented and the facts found in this case, it becomes clear that the circumstance that the applicant may have raped his victim is not a matter to which consideration may be given in imposing sentence in this case. It is true that the sentencing judge made findings that were consistent with the conclusion that an act of rape had been committed by the applicant. It does not follow that a jury would have arrived at the same result. Other considerations apart, the standard of proof of facts for sentencing purposes has in Queensland been held to be the balance of probability and not beyond reasonable doubt: R. v. Welsh [1983] 1 Qd.R. 592. More 'fundamental and important' than this is the fact that the applicant was neither charged nor convicted of rape. He cannot therefore be punished for that offence: R. v. de Simoni, supra, at 472 col.1B — per Gibbs C.J.; at 474 col.2C, per Wilson J. Nor is it permissible to attempt to escape or diminish the impact of the rule by describing the applicant’s conduct in less heinous terms, such as a non-consensual sexual intercourse or a forceful invasion of bodily integrity or privacy. Having accepted a plea of guilty to an offence less serious than the facts might warrant, it was not open to the Crown to ask the judge to rely on facts that would have rendered the offender liable to a more serious penalty:
R. v. de Simoni, supra, at 473 col. 1D, per Gibbs C.J."
Order
[37] I am respectfully of the opinion that the sentence which was imposed was a proper sentence.
[38] I would dismiss the appeal.
[39] HOLMES JA: I agree with the reasons of Keane JA and the order he proposes.
[40] CHESTERMAN JA: I agree that the appeal should be dismissed for the reasons given by Keane JA.
Footnotes
[1] R v B (2000) 111 A Crim R 302.
[2] Cf R v Aston (No 2) [1991] 1 Qd R 375 at 381; and s 9(4) of the Penalties and Sentences Act 1992 (Qld).
[3] Cf R v NJ [2008] QCA 331.
[4] [2005] QCA 359.
[5] Penalties and Sentences Act 1992 (Qld) s 9(1)(e) and s 9(4)(b). Cf Veen v The Queen (1979) 143 CLR 458; Veen v The Queen (No 2) (1988) 164 CLR 465 at 476.
[6] Cf s 208(1)(c) of the Criminal Code.
[7] (1981) 147 CLR 383 at 392.
[8] [1986] 1 Qd R 190 at 208 – 209.