R v EK[2013] QCA 278

SUPREME COURT OF QUEENSLAND

[1] MUIR JA: Introduction The applicant applies for leave to appeal against two sentences of 10 years imprisonment imposed on 20 August 2012 in respect of two counts of maintaining a sexual relationship with his step-daughter (complainant A).  The applicant was also sentenced to various terms of imprisonment for two offences of incest and two offences of indecent treatment of a child under his care in respect of complainant A and for one offence of maintaining a sexual relationship and three offences of indecent treatment of a child under his care, perpetrated against complainant B.  The applicant pleaded guilty to all offences at an early stage.

The applicant’s antecedents

[2] The applicant was aged between 52 and 58 during the period of his offending and was 65 when sentenced.  He had no criminal history.  He had served in the RAAF for 20 years and had seen active service in Vietnam.  As a result of his military service, he suffered from a variety of physical and psychological problems.  They were described at length in a letter from the applicant’s wife dated 9 May 2011 to the medical director of Arthur Gorrie Correctional Centre.  The content of the letter was endorsed by a medical practitioner and its accuracy was undisputed.

[3] The applicant suffers from conditions including: secondary polycythaemia (an increase in the total red cell mass of the blood); a contagious skin condition; hypertension; a history of strokes, including later transient ischaemic attacks; epilepsy; obstructive sleep apnoea; a duodenal ulcer; a fatty liver; shoulder joint degeneration; a 75 per cent loss of nerve function in his left leg and a 25 per cent loss of nerve function in his right leg; chronic neuropathic pain in both feet; dioxin poisoning; non-specific colitis causing extreme pain, diarrhoea and occasional vomiting and requiring dietary management; and a depressed immune system.  The applicant also suffers from post traumatic stress disorder and has a history of cerebrovascular disease.  The symptoms from which the applicant suffers as a result of polycythaemia include headaches, dizziness, transient ischaemic attack symptoms, weakness and bone pain.

The circumstances of the applicant’s offending

[4] The applicant was the step-father of the two complainant females.  He married their mother in 1997.  He maintained a sexual relationship with complainant B from when she was 13 to when she was 16.  His offending commenced with kissing, progressed to the touching of the complainant’s breasts and concluded with incidents of licking and rubbing complainant B’s vaginal area.  On one occasion, he rolled a vibrating massager over her breasts and vagina; on another occasion, the applicant subjected her to oral sex.

[5] The maintaining relationship with complainant A commenced when she was 11 and concluded when she was 19.  However, the applicant was not charged with offending occurring after complainant A turned 16.  When she was 11 or 12, the applicant started touching her sexually on the outside of her clothing and then underneath it.  When she was between 12 and 13 years of age, he would kiss her, touch her breasts, put his fingers down her pyjamas to her genitals and have her touch his erect penis.  When complainant A was 13 and 14, the applicant procured her to masturbate him and to perform oral sex on him.  On occasions, he would ejaculate into her mouth.  He also performed oral sex on her.  The applicant first had intercourse with complainant A after her 13th birthday.  He then had intercourse with her “probably once a month”, but more frequently during holiday periods.  He usually used a condom when having intercourse.

The applicant’s contentions

[6] The applicant contended that the sentences imposed for the maintaining offences in respect of complainant A were manifestly excessive when regard was had to the applicant’s early plea of guilty, comparable sentences and the applicant’s medical conditions.  Counsel for the applicant placed particular reliance on R v K,[1] R v CAM,[2] R v KN,[3] R v D[4] and R v KAI.[5]

[7] In K, the respondent’s sentences of six years imprisonment imposed in respect of two offences of maintaining a sexual relationship with the respondent’s two step-daughters and a sentence of three years imprisonment imposed in respect of one count of maintaining a sexual relationship with his natural son were set aside on an Attorney-General’s appeal.  Sentences of 12 years imprisonment for the maintaining offences in respect of the step-daughters and a sentence of five years imprisonment for the maintaining offence against the respondent’s son were substituted.  It was recommended that the respondent be eligible for parole after serving four years of his sentence.  The maintaining period in respect of one step-daughter was a little under three years and ended on her 16th birthday.  The maintaining period in respect of the other step-daughter was about three years, commencing when she was 11.  The offending against the respondent’s son commenced when he was aged six and endured for about three years.  The respondent regularly engaged in sexual activities of various kinds, including vaginal and oral intercourse, with his step-daughters.  On a number of occasions, he procured his step-daughters to fellate his son.  He also sodomised one of his step-daughters.

[8] The respondent entered an early plea of guilty and had taken himself and his family to counselling.  Fitzgerald P and White J observed that a “particularly deplorable” feature of the case was “the involvement of the children inter se”, which they considered would have “a gravely damaging effect upon their own relationships with each other”.[6]

[9] Counsel for the applicant submitted that K was more serious than the instant case as it involved a third complainant, sodomy, attempted sodomy and the procuring of the children to engage in sexual activity with one another.  It was further submitted that K supported a starting point in the instant case of about 11 years before the applicant’s plea of guilty, remorse and health factors were taken into account and that a sentence of eight to nine years was appropriate.

[10] The sentence in CAM, imposed after a guilty plea, for maintaining a sexual relationship with a child under 16 years was eight years imprisonment.  The offending against the applicant’s step-daughter took place over a four year period commencing when she was 12 years of age.  Penile penetration commenced when the complainant was 12 or 13 years of age and became regular and more frequent in the “last three to four months of the relationship”.[7]

[11] The Chief Justice, with whose reasons the other members of the Court agreed, observed that it was “difficult to conceive how, on the face of things, this sentence of eight years imprisonment could reasonably be regarded as manifestly excessive”.[8]

[12] It was submitted that CAM supported a sentence of eight to nine years imprisonment.  It was argued that although this applicant’s offending was over a longer period and involved two victims, the applicant in CAM had attempted to impregnate his victim, did not have the mitigating feature of ill health and had a minor criminal history.

[13] In KN, a sentence of eight years imprisonment for maintaining a sexual relationship with a child, sentences of four years imprisonment for each of seven counts of incest and two years of imprisonment for each of two indecent dealing offences were held not to be manifestly excessive.  Regular sexual intercourse with the applicant’s step-daughter occurred during the maintaining period.

[14] Although KN involved only one complainant, counsel for the applicant submitted that it served to indicate that the 10 year sentence imposed in the present case was manifestly excessive as the offending in KN commenced when the complainant was younger and lacked the additional mitigating feature of poor health.

[15] In D, sentences of 11 years imprisonment imposed after pleas of guilty for maintaining a sexual relationship with the applicant’s step-daughter; two offences of incest committed against the applicant’s natural daughter; three offences of incest committed against another natural daughter; maintaining a sexual relationship with that daughter; and an offence of rape of one of his daughter’s friends were held not to be manifestly excessive.  The offending against one victim commenced when she was 12.  The other victims were 13 or 14 when the offending either commenced or was committed.  Davies JA remarked that “[t]he comparable cases show that this sentence imposed was comfortably within the appropriate range”.[9]  His Honour referred in that regard to a sentence of 15 years imprisonment imposed in R v Krieger[10] for offences which included maintaining a sexual relationship with the applicant’s relation and a sentence of 17 years imprisonment imposed in R v H[11] for an offence of maintaining a sexual relationship with the applicant’s daughter.  Reference was also made to R v R,[12] in which the applicant failed to have set aside a sentence of 11 years imprisonment for maintaining a sexual relationship with one child over a two and a half year period.  The applicant in R v R had a previous criminal history which included rape and indecent assault and the offences included indecent dealing, masturbating in front of the complainant, rape and oral sex.

[16] Counsel for the applicant in this matter sought to distinguish D as a “much more serious case” due to the involvement of four complainants, the charges of rape and the absence of the mitigating feature of ill health.

[17] The applicant in KAI was sentenced to 10 years imprisonment after pleading guilty to one count of maintaining a sexual relationship with a child over a period of six years, commencing when the child, the applicant’s step-daughter, was nine years of age; eight counts of incest; two counts of unlawful carnal knowledge; and three counts of indecent dealing.  A serious aggravating circumstance of the offending was that the applicant fathered the complainant’s child.  In concluding that the sentence of 10 years was not manifestly excessive, Williams JA remarked that “there is a broad range for offences of this type from seven to 13 years with some exceptional cases justifying sentences in excess of 13 years”.[13]  It was submitted that the more serious nature of the offending conduct in KAI suggested that the sentence of 10 years imprisonment imposed in the present case was manifestly excessive.

[18] Counsel for the applicant submitted that the medical evidence supported the conclusion that the applicant’s time in custody had been, and would continue to be, more onerous than that of most other inmates.  It was submitted that he was entitled to some reduction in his sentence in accordance with the following principle expressed in R v Pope; ex parte Attorney-General (Qld):[14]

“… 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 (R v. Smith (1987) 44 SASR 587, 589; Bailey v. DPP (1988) 62 ALJR 319).”

[19] Counsel did, however, accept that such a “feature must not be allowed to overwhelm appropriate reflection of the grave nature of offences like these”.[15]

The respondent’s contentions

[20] Counsel for the respondent placed particular reliance on R v BBM,[16] R v HAA[17] and R v GQ.[18]

[21] In BBM, the applicant was sentenced, after a plea of guilty, to 10 years imprisonment for one count of maintaining an unlawful relationship of a sexual nature with his adopted daughter, then a child under 16 years, and eight counts of incest of that daughter.  The offender was aged between 48 and 59 during the offending period and was 63 when sentenced.  He had no prior criminal history and was diagnosed with Parkinson’s disease before being sentenced.  It was accepted that the applicant was remorseful and had cooperated with the administration of justice in making admissions.  The maintaining period commenced when the complainant was eight.  The applicant then engaged in nightly tongue kissing.  He started touching her breasts when she was 10 and, from time to time, would put the complainant’s hand on his penis and would masturbate himself.  When the complainant was in about grade seven or grade eight, he repeatedly forced the complainant to touch his penis, masturbated in front her, kissed her and touched her breasts.  He had protected sexual intercourse with the complainant on three occasions when she was aged 14 and performed cunnilingus on her on three occasions before she turned 16.  The 10 year sentence with its accompanying “serious violent offence” declaration was considered to be appropriate and was reimposed.

[22] The applicant in HAA was convicted, after a trial, of maintaining an unlawful sexual relationship, one count of rape and 15 counts of unlawful carnal knowledge in the course of that relationship and sentenced to 12 years imprisonment in respect of the maintaining count.  The maintaining period commenced when the complainant, the granddaughter of the applicant’s de facto partner, was nine and continued for about four years.  During that period, there was regular sexual intercourse.  The rape offence was committed by the applicant placing his penis in the complainant’s mouth.  The relationship was maintained by the applicant’s threats that if the complainant told anyone about his conduct he would give up work and leave her grandmother who was ill and in need of the applicant’s support.  The applicant was aged between 50 and 55 years and had a previous conviction for indecent dealing with a child under 16 years.  The application for leave to appeal was dismissed.

[23] The applicant in GQ was sentenced, after a plea of guilty, to a head sentence of 10 years imprisonment for maintaining a sexual relationship with circumstances of aggravation, namely rape and unlawful carnal knowledge during the period of the relationship, between January 1994 and April 2000.  The applicant also pleaded guilty to two counts of indecent dealing with a child under the age of 12, two counts of rape and one count of indecent assault.  The applicant was 34 when sentenced and between 23 and 30 years of age during the period of his offending.  The complainant, who was the applicant’s niece, was aged between 10 and 16 at relevant times.

[24] Commencing with indecent touching, the offending escalated to oral sex and sexual intercourse when the complainant was aged 11.  Towards the end of the offending period, unprotected intercourse, accompanied on occasions by oral sex, occurred about three or four times a week.  The applicant reported his conduct to police before any complaint had been made to them.  The evidence did not suggest that the complainant was proposing to complain to the authorities.  The head sentence was found not to be manifestly excessive.

[25] Counsel for the respondent submitted that the sentences imposed were justified having regard to: the fact that the offending was against two children over a protracted period; the fact that sexual intercourse, which was not infrequent, took place over an extended period in the course of the relationship; the existence of a parental relationship; the applicant’s use of emotional coercion and blackmail; and the psychological harm occasioned to the complainants.  It was submitted that the sentencing judge had appropriately taken into account the absence of prior offending, the early pleas of guilty and the applicant’s ill health, which would render his imprisonment more onerous than usual.  Having regard to those matters, the notional starting point of 13 years before taking into account the mitigating factors was not outside an appropriate sentencing range.

Consideration

[26] The issue for the Court in R v CAM, R v KN, R v D and R v KAI was whether the sentence was manifestly excessive.  That was also true of R v HAA and R v GQ.  These decisions are thus of limited use for present purposes.

[27] Putting aside the state of the applicant’s health, it is my view that the comparable sentences relied on by the respondent, as well as R v K, provide support for the sentences imposed on the applicant, although these sentences are at the higher end of the established range.  The offending in BBM commenced when the complainant, who was born with disabilities, was only eight years of age.  The applicant in HAA was sentenced after a trial.  His offending commenced when the complainant was nine years of age.  The offending in GQ included two rapes.

[28] As the sentencing judge remarked, both complainants were sexually abused over a lengthy period and suffered substantial psychological harm.  Complainant A was subjected to sexual intercourse, cunnilingus and fellatio, the applicant having persuaded the complainant that the desired sexual acts provided “pain relief” and assisted his medical condition.  The applicant grossly betrayed the trust which the children should have been able to repose in him.  Although he pleaded guilty at an early stage, damning evidence had been obtained through pretext telephone calls.

[29] The material before the sentencing judge showed that the applicant had been experiencing psychiatric difficulties, at least since 1988.  A psychiatric review by a consultant psychiatrist at a repatriation general hospital in Western Australia on 10 February 1988 concluded that the applicant was “totally incapacitated by his nervous condition which [included] his reaction to his hypertension and the problems evident in controlling that disorder”.  The report recommended that the applicant be considered “permanently incapacitated”.  That recommendation, or a later one, was accepted and the Department of Veterans Affairs declared the applicant totally and permanently incapacitated.  There is, however, nothing in the psychiatric evidence which tends to diminish the applicant’s culpability.

[30] It is obvious from the nature and extent of the applicant’s physical ailments that imprisonment will be a far greater burden on him than it would be on most inmates and that there exists a substantial possibility that imprisonment may have a materially adverse effect on the applicant’s health and well being.  It is unnecessary to recite all of the applicant’s conditions and their consequences to arrive at those conclusions.  Referring to the applicant’s secondary polycythaemia, the applicant’s wife wrote, in her letter of 9 May 2011:

“Right now the bone pain [the applicant] is experiencing is excruciating and he can barely stand.  This pain is treatable by removing excess blood from [the applicant’s] system.  At this point Arthur Gorrie has been unable to successfully control the Polycythaemia.  If the lack of treatment continues [the applicant] is in the high risk category of having a major stroke.”

[31] The applicant’s wife complained that when the applicant entered the remand prison in February 2011, he was able to use his left hand, but, following a transient ischaemic attack, it “clawed up”.  She asserted that “… without immediate Physiotherapy and medical aids like a hand splint, the ‘window of opportunity’ [would] be lost and [the applicant would] permanently lose the use of his left hand”.  The letter then dealt with the diet that the applicant required to maintain his health because of his many ailments.  The applicant’s wife offered, on behalf of his family, to purchase a specified liquid food supplement for the prison to provide to him.  The letter complained that Arthur Gorrie had run out of the drug the applicant was using to control his blood pressure and remarked that the constant rehabilitation which the applicant had received at home following his major strokes enabled him to overcome the initial prognosis that he would be wheelchair bound for the rest of his life.  It was noted that, at the date of the letter, the applicant was able to walk slowly with the aid of a cane, although at times he dragged his left foot and slurred his speech.  It was remarked that he was “still experiencing extreme bone pain” such that he could barely walk.  Increased head pain was also noted.

[32] In a letter dated 16 November 2011 addressed “To whom it may concern”, Dr Frost, a clinical haematologist, wrote:

“Because of his history of cerebrovascular disease, it is quite crucial that this man have his haematocrit as assessed by regular blood tests, kept at a reasonable level.  Otherwise his health will be seriously endangered.  He has been asked to have blood tests taken each eight weeks and to have a venesection if the haematocrit is 0.45 (45%) or greater.  Failure to follow this protocol … may well endanger his wellbeing and even his life …”

[33] In a letter dated 6 May 2011, Dr McCray stated his concerns that the applicant’s polycythaemia would contribute to his risk of a stroke.  He cautioned that the applicant’s neuropathic pain required that he continue taking Neurontin, which would also assist in controlling the seizures to which he was prone.  The letter also stated that treatment for sleep apnoea should continue.

[34] In R v LS,[19] Douglas J, with whose reasons the other members of this Court agreed, endorsed the following statement of principle in R v Smith,[20] applied by this Court in R v Pope; ex parte Attorney-General (Qld):[21]

“The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender.  The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process.  Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health.  It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners.  Generally speaking ill health will be a factor tending to mitigate punishment only 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.”

[35] In R v Maniadis,[22] it was held that s 668E(3) of the Criminal Code, which enabled an appellate court to quash a sentence if satisfied that “some other sentence, whether more or less severe, is warranted in law”, gave a court hearing an application for leave to appeal against sentence power to admit evidence not adduced below which was at least as wide as the court’s power in that regard in an appeal against conviction.

[36] Davies JA and Helman J, with whose reasons Fitzgerald P agreed, said:[23]

“But a court of appeal will admit new evidence on such an appeal, notwithstanding that it is not fresh in the above sense,[24] if its admission shows that some other sentence, whether more or less severe, is warranted in law; in this case, that the sentence in fact imposed was unwarranted in the sense that it was manifestly excessive. Evidence of events occurring after the date of sentence is generally unlikely to show this unless it shows what the state of affairs was at the time the sentence was imposed.”

[37] In R v Cornale,[25] it was held that this Court’s power to resentence under s 668E(3) was limited to “substituting for the sentence under appeal a sentence that ‘should have been passed’ in the circumstances that prevailed when it was imposed”.  That construction of s 668E(3) was confirmed by McMurdo J, Holmes J agreeing, in R v Hughes.[26]

[38] In reliance on principles discussed in LS, the applicant applied for leave to read and file an affidavit sworn by a law clerk, Mr Owens, and one sworn by Dr Frost.  Mr Owens’ affidavit exhibited a statement of the applicant which addressed his medical treatment and concerns whilst in prison.  The statement does not distinguish between matters which predated the sentencing hearing and those which arose later.  It is apparent, however, that the great bulk of the matters addressed concern medical conditions which were the subject of evidence at the sentencing hearing.

[39] Dr Frost’s evidence is to the effect that the health, and even the life, of the applicant is being jeopardised by the level of medical care he is receiving in prison.  Dr Frost’s concern appears to be that the prison system does not have the flexibility to perform and respond to the results of regular blood tests so as to permit prompt decisions to be made by a managing haematologist concerning treatment.  Dr Frost’s opinion is that such “inadequacies may well affect [the applicant] in a serious manner especially with a view to cerebral function and could possibly lead to also other vascular incidents affecting other areas of the body, in particular cardiac circulation and peripheral limb circulation”.

[40] Counsel for the applicant made it plain that the further evidence was relevant and relied on only in so far as it bore on and explained the state of the applicant’s health at the time of sentence.  Nevertheless, I would refuse leave to admit the affidavits sought to be filed by the applicant and the affidavits sought to be filed by the respondent in response to those affidavits.  The applicant’s statement contains a mixture of arguably admissible and plainly inadmissible materials and is of limited utility.  Dr Frost’s evidence is also of limited utility and is essentially confirmatory of evidence before the sentencing judge.

[41] It was already apparent from the evidence before the sentencing judge that the applicant’s many ailments would render his imprisonment unusually onerous and create continuing health management difficulties.  His mobility is dependent on the assistance of others.  He has an approved “buddy” but the level of care and assistance such a person can provide in the prison environment is likely to be a poor substitute for that which would have been provided at home by a devoted spouse.  It is also unrealistic to think that the high level of general care and supervision, including the administration of physiotherapy, which contributed to the maintenance and improvement of the applicant’s physical state and well being, can be provided in prison.  His continuing severe pain is also likely to be more bearable in the domestic setting where distractions, not to mention advice and assistance, will tend to be more readily available.  The applicant, through his incarceration, has also been deprived of the health management provided to him by medical practitioners who are intimately acquainted with the applicant’s conditions and needs.  In my respectful opinion, the sentencing judge failed to have due regard to these considerations and the exercise of the sentencing discretion miscarried.

[42] Balancing the considerations just discussed against the need for appropriate punishment and denunciation, I would:

1. Grant leave to appeal.

2. Allow the appeal.

3. Set aside the sentences imposed in respect of counts 1 and 5 on indictment 1043 of 2012 at first instance and substitute sentences of nine years imprisonment to be served concurrently with each other and with the other sentences imposed on 20 August 2012.

[43] PHILIPPIDES J:  I agree with the reasons of Muir JA and the orders proposed.

[44] HENRY J:  I have read the reasons of Muir JA.  I agree with those reasons and the orders proposed.