R v RAL[2012] QCA 34

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P: Although the penalty now sought by the applicant's counsel (four years imprisonment with parole eligibility after 12 months) would also have been within the range of a sound exercise of the sentencing discretion, the sentence actually imposed (four and a half years imprisonment with parole eligibility after 18 months) was not manifestly excessive.  That is so, even taking into account the applicant's manifold health problems.  I agree with White JA's reasons for refusing the application for leave to appeal against sentence.

[2] FRASER JA: I agree with the reasons for judgment of White JA and the order proposed by her Honour.

[3] WHITE JA: On 21 October 2011 the applicant pleaded guilty to the charge that between 30 April and 14 November 2010 he maintained an unlawful sexual relationship with a child.  The applicant was aged 66 to 67 when he offended.  The child was aged four.  The applicant is the uncle by marriage of the complainant’s mother.  He was sentenced to four and a half years imprisonment with his parole eligibility fixed at 21 April 2013, that is, after serving 18 months.

[4] The applicant seeks leave to appeal against the sentence on the ground that it is manifestly excessive.  He contends that the sentence ought to have been one of imprisonment for four years with parole after serving 12 months.  The prosecutor below had sought a sentence of four to five years but at the upper end of the range.[1]  Defence counsel had submitted for a sentence of four years with a parole eligibility date after 12 months,[2] the latter to address the applicant’s medical condition.

[5] On this hearing, Mr Sushames, for the applicant, submitted that the sentencing judge erred in failing to have proper regard to the applicant’s health deficits and that prison would be more difficult than for the average prisoner.  He contended for the sentence sought below of four years with parole eligibility after serving 12 months.

Circumstances of offending

[6] The complainant and her mother regularly visited the applicant and his wife.  During those visits the applicant would take the child downstairs on the pretext of playing a craft game with her.  He would remove her clothing and his own.  The applicant would place the child on the pool table, touch her vagina and then perform oral sex upon her.  He then masturbated himself in front of her to ejaculation.  She was encouraged to eat the applicant’s ejaculate after which he would do so.  She told interviewing police that she did that by using her finger and scraping the ejaculate off the applicant’s penis.  She told police that it sometimes started to make her vomit.  On each of the approximately six occasions the applicant told the child not to tell her mother about what had occurred. 

[7] On 10 November 2010 the mother found the complainant playing with her own genitalia.  The following day the child disclosed to her mother the nature of the offending.  The complainant’s father told other family members about her disclosure.  Initially the applicant denied the conduct but when his wife confronted him he admitted the offending had occurred over a period of about six months.  He initially said the misconduct was initiated by a request from the child to see his penis, but that was not, eventually, maintained. A complaint was made to police on 13 November 2010. 

[8] The child gave a s 93A interview to police in which details of the offending were described. 

[9] The applicant’s DNA was found near the pool table where the offences had been carried out.  Although initially agreeing to do so, subsequently the applicant refused to take part in an interview with police.  Statements from the mother demonstrated that the consequences of the offending behaviour have been considerable for the child and for the family as a whole, some members of whom have been alienated as a consequence of the disclosure. 

[10] There was a full hand up committal and no pre-recording of evidence by the complainant.  The applicant had no relevant criminal history, it being confined to a single conviction for stealing in 1964 dealt with in the Brisbane Police Court.

Submissions below

[11] Defence counsel contended that the range of four to five years submitted for by the prosecutor was appropriate although he sought a sentence at the lower end of that range.  He submitted that because of the applicant’s “advanced age” being 68, and his medical condition that the applicant should be eligible for parole at 12 months.  Counsel said that his client had attended court with “a large suitcase which is full of medication … [and] machinery that he requires in order to maintain himself.”[3]  Defence counsel tendered a medical report from the applicant’s general practitioner to the applicant’s solicitor bearing the date 9 September 2011 (about six weeks before the sentence) setting out the disorders from which the applicant suffered and his treatment.[4]

[12] The applicant suffers from a number of respiratory disorders which require regular maintenance treatment with medication including puffers, intervention treatment for acute flare ups including (named) stronger drugs and chest physiotherapy.  The applicant was described as being obese for which the treatment was weight loss.  He suffered from obstructive sleep apnoea syndrome which required treatment by a mask and “would benefit from weight loss”.  The applicant suffers from cardiac disease and suffered a myocardial infarction in 1987, mitral incompetence from 2001 and hypercholesterolaemia.  The treatment for his cardiac disease, according to Dr Welsh’s report, focussed on aggressive secondary prevention including medication, regular blood pressure monitoring, a sensible low animal fat diet, regular sensible exercise, weight loss and reduction of abdominal girth.  The applicant suffers from rheumatoid arthritis for which he underwent a total hip replacement in 2001 and total knee replacements in 2005 and 2010 respectively.  He is prescribed analgesia and other drugs.  He was diagnosed with a common variable immunodeficiency syndrome from 2008 which requires regular monitoring; and osteoporosis due in part to chronic prednisone usage for which he has medication and weight bearing exercise.  He had a sinus operation in 2007 for his chronic rhinosinusitis.  He has some prostate based frequency problems.  Dr Welsh concluded:

“[Name]’s overall prognosis will largely be influenced by his lung disorders, cardiovascular disease, obesity and rheumatoid arthritis.  Each of these conditions (including their treatment) has a potential negative impact on the others. 

Despite managing these conditions as optimally as possible, [name] continues to suffer prolonged, repeated chest infections resulting in reduced exercise tolerance, subsequent weight gain and increased “stress” on his cardiovascular system.

I can not place a time frame on [name]’s longevity, other than to say that he will die earlier if this recent cycle of “ill health” continues.”[5]

[13] The prosecutor below submitted that although there can be special leniency or further leniency given to those who plead guilty if there is evidence that imprisonment would be more burdensome for a particular offender than for others, there was no evidence which would require that particular leniency.  That position was maintained on this application.  In R v Pope; ex parte Attorney-General of Queensland[6] the court observed:

“The existence of serious medical conditions are of course not necessarily an answer to the question of imprisonment, and not uncommonly the need for an adequate response calls for a custodial sentence notwithstanding.  It is recognised however, that the ill-health of an offender is a factor tending to mitigate punishment 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 his health.”[7]

In Pope the offence was dangerous driving causing death.  Evidence was placed before the court that the applicant had a diabetic condition which would lead to complete kidney failure with the need for renal dialysis twice weekly; failing eye sight which meant the need for assistance injecting himself with insulin four times a day and other assistance.  He was a young man who was suffering from depression, in part due to the offence and in part to his deteriorating condition, to the extent that he was suicidal. 

[14] There was nothing in Dr Welsh’s report or any other evidence placed before the court to suggest imprisonment would affect the applicant’s health deleteriously or that his many adverse health conditions could not be managed.

[15] Mr Sushames relied on R v Beesley[8] to support his contention of manifest excess.  The offender (aged 51 to 52 at the time of the offences) pleaded guilty to maintaining a sexual relationship with the complainant who was aged between 14 and 15 over a seven month period and other sexual offending.  The sexual acts involved kissing, handling the complainant’s genital area and digital penetration of the complainant’s vagina.  The applicant desisted when told by the complainant that he was hurting her.  She then ran away from home and came to reside with the applicant in his caravan where their sexual relationship continued.  The complainant had instigated this later sexual conduct.  The applicant had no criminal history.  He had a good work history and had indicated remorse.  This court was required to re-sentence the offender because of errors in not imposing separate penalties for each offence.  The court imposed a sentence of four years imprisonment suspended after 12 months for the maintaining charge. 

[16] There are a number of differences with the present offender.  The very young age of the child here compared to the 15 year old complainant in Beesley; the disgusting nature of the misconduct in requiring the complainant to eat his ejaculate; his urging that she not tell her mother together with the significant deception on the mother; and the breach of trust when compared to Beesley suggest that the sentence imposed was not manifestly excessive. 

[17] Other comparable cases referred to by the respondent were R v BBS[9] where that offender was convicted after a trial of one count of maintaining a sexual relationship with one child and four counts of indecent treatment of two children under the age of 12.  The offender subsequently pleaded guilty to additional charges of child abuse computer game offences.  For the maintaining offence he was sentenced to five years, ten months and two weeks imprisonment and other lesser terms of imprisonment for the other offending.  There was a recommendation for eligibility for parole after three years.  The maintaining related to a seven to eight month period over which the offender involved one complainant in a “tasting” game during which the complainant, who was aged six, was blindfolded and the applicant put his penis in her mouth.  The conduct was not disclosed for some years and the child was unable to remember many specified instances of criminal conduct.  The offender was aged 45 to 46 at the time of the maintaining offences and older with respect to the child pornography offences.  He had no prior criminal history and a good work history.  The sentence on the maintaining charge was said to be within an appropriate range bearing in mind the very young age of the complainant; that the applicant went to lengths to avoid detection; the breach of trust and the residual adverse effects on the complainant.  That sentence is of limited value since it was imposed after a trial and infected with other criminal conduct.

[18] In R v CAQ[10] the applicant pleaded guilty to one count of maintaining a sexual relationship with a child under the age of 12 at a time when the child was under his care.  He also pleaded guilty to one count of wilfully exposing a child under the age of 12 to an indecent video tape.  The complainant was aged 10 and 11 over the six to seven month period of the maintaining.  The offender was 51 when he commenced the relationship.  The child was the granddaughter of the offender’s second wife.  The offending conduct consisted of touching the complainant on her breasts and in the vicinity of her vulva.  On some occasions he put his hand under her clothing and on others he touched her clothing.  The first instance occurred in the swimming pool when he put his hands under her costume.  The child struggled and screamed but was subdued with threats that she would get into trouble if she mentioned what had happened.  The offender touched the child on about 15 occasions.  The offences had a serious impact on the complainant.  He had no previous convictions, a good work history and a psychiatrist’s report showed him to suffer from personality disorders.  A sentence of three and a half years with a recommendation for parole after 15 months was not considered manifestly excessive.  The nature of the offending was much less serious than in the present case.

[19] The sentence imposed here was not outside the exercise of a sound sentencing discretion and is consistent with comparable sentences for sexual offending against young children of this kind.  There was no evidence that the court ought to have reduced the sentence further by fixing an even earlier parole eligibility date on the basis that imprisonment would be unduly burdensome.

[20] I would refuse the application for leave to appeal against sentence.