R v MCB; ex parte Attorney-General
[2014] QCA 151
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- R v MCB; ex parte Attorney-General[2014] QCA 151
- Add to List
R v MCB; ex parte Attorney-General[2014] QCA 151
R v MCB; ex parte Attorney-General[2014] QCA 151
SUPREME COURT OF QUEENSLAND
CITATION: | R v MCB; Ex parte Attorney-General (Qld) [2014] QCA 151 |
PARTIES: | R |
FILE NO/S: | CA No 22 of 2014 DC No 266 of 2013 |
DIVISION: | Court of Appeal |
PROCEEDING: | Sentence Appeal by Attorney-General (Qld) |
ORIGINATING COURT: | District Court at Maroochydore |
DELIVERED ON: | 24 June 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 28 May 2014 |
JUDGES: | Margaret McMurdo P and Muir JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Appeal dismissed. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent was convicted on his own plea of guilty of one count of rape and seven counts of indecent treatment of a child under 16, under 12, under care – where the respondent was sentenced on the count of rape to three years’ imprisonment to be suspended after nine months with an operational period of five years – where the respondent was sentenced on each count of indecent treatment to nine months’ imprisonment and three years’ probation with conditions – where the appellant contended the sentence was manifestly inadequate – where mitigating factors for the respondent included remorse, cooperation with authorities, suffering from psychiatric conditions, an early plea of guilty and reasonable prospects of rehabilitation – where aggravating factors included a criminal history, filming of the offences and that the offending occurred while the respondent was subject to an intensive correction order – whether the sentence was manifestly inadequate Child Protection (Offender Reporting) Act 2000 (Qld), s 36(1) Criminal Code 1899 (Qld), s 669A AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, applied Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10, applied R v AAD [2008] QCA 4, considered R v BBE [2006] QCA 532, considered R v Bolton; Ex parte Attorney-General (Qld) [2014] QCA 128, cited R v Bull [2012] QCA 74, considered R v DBC; ex parte A-G (Qld) [2012] QCA 203, cited R v GAP [2013] 1 Qd R 427; [2012] QCA 193, considered R v KU; Ex parte Attorney-General (Qld) (No 2) [2011] 1 Qd R 439; [2008] QCA 154, cited R v Lee [2012] QCA 313, considered R v M [2003] QCA 443, considered R v Price; ex parte A-G (Qld) [2011] QCA 87, cited R v SAH [2004] QCA 329, considered R v Vincent, ex parte Attorney-General (Qld) [2001] 2 Qd R 327; [2000] QCA 250, cited Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, applied |
COUNSEL: | A W Moynihan QC for the appellant J J Allen for the respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent |
- MARGARET McMURDO P: I agree with Atkinson J's reasons for dismissing this appeal but I have some additional observations.
- The 20 year old respondent committed the serious offences of one count of rape and seven counts of indecent treatment on a vulnerable eight year old boy. He was sentenced to three years imprisonment suspended after nine months with a five year operational period for the rape and on each count of indecent treatment to nine months imprisonment and three years probation with the special condition that he undergoes medical, psychological and psychiatric examination and treatment. The appellant, the Attorney-General of Queensland, contends the sentence was manifestly inadequate.
- The offences all occurred on 27 January 2013 and it was not submitted at sentence that the respondent had groomed the boy or that this offending was anything other than a single isolated episode. This appeal must be conducted on that same basis. The respondent was in a position of trust as he was like a big brother to the boy. No force or threats were used and the boy was not physically harmed. The boy's mother, however, provided a victim impact statement[1] in which she outlined the dreadful detrimental impact of this offending on the boy, the family and her. The respondent had a troubled and dysfunctional background and had some prior convictions; indeed, he was serving an intensive correction order at the time of this offending. But he had committed no prior or subsequent sexual offences. He cooperated with police, immediately expressed great remorse and made admissions without which it would have been difficult to convict him of all the eight counts to which he entered early pleas of guilty. The young boy was saved the additional trauma and humiliation of giving evidence and being cross-examined. An unchallenged psychiatric report[2] outlined the respondent's numerous psychiatric and developmental problems which apparently contributed to his offending; noted the absence of any long standing history of paedophilic tendencies; and opined that his risk of re-offending could be reduced by consistent psychological and psychiatric care.
- Atkinson J's thorough analysis of the cases relied on by the appellant in support of the contention that the sentence was manifestly inadequate demonstrates that, in the circumstances pertaining to the present case, a sentence of three years imprisonment with parole eligibility after 12 months would have been unexceptional. So much was accepted by the experienced prosecutor at sentence. In oral argument, counsel for the appellant clarified that he was not submitting that this Court should not follow those decisions. This concession makes the appellant's task difficult.
- In determining whether the respondent's sentence is manifestly inadequate, this Court should consider the combined effect of the sentences. The five year operational period for the rape offence means that the respondent will be liable to be returned to prison to serve the remaining two years and three months of his three year term of imprisonment if he re-offends in any way during the next five years. In addition to his three years imprisonment, he was placed on three years probation so that the community can expect he will be subject to thorough and thoughtful supervision for the two years and three months following his release from prison. Importantly, it is a condition of that probation, consistent with the psychiatric report, that he receives treatment with particular emphasis on sex offending. This carefully structured sentence is clearly designed to bolster the young, disadvantaged and remorseful respondent's prospects of rehabilitation, which is unquestionably in the community interest. If he breaches a term of his probation, he will be at risk of committing the offence of breach of probation and could be returned to custody. An equally significant concern in sentencing is the protection of the young victim and of the public generally. That concern is met by the five year operational period on the rape count combined with the carefully structured three year probation order. Further, although not part of the sentence, the respondent as a reporting offender under the Child Protection (Offender Reporting) Act 2004 (Qld) is required to regularly report his name and keep updated other details on a register for 15 years.[3] The sentence is sufficiently onerous to meet the sentencing requirement of personal and general deterrence.
- The review of the cases relied on by the appellant does not demonstrate that this sentence is manifestly inadequate. It is true that the respondent will serve nine, not 12, months imprisonment but unlike in the cases relied on by the appellant he will be liable to be returned to prison for the next five, not three, years. And as Atkinson J explains, the judge did not err in construing the effect of R v BBE;[4] his Honour appreciated the significant distinctions between that case and this. The appellant has not demonstrated any error in the exercise of the sentencing discretion.
- I agree with the order proposed by Atkinson J.
- MUIR JA: I agree that the appeal should be dismissed for the reasons given by Atkinson J and the President.
- ATKINSON J: On 13 January 2014 the respondent, MCB, was convicted on his own plea of guilty on one count of rape and seven counts of indecent treatment of a child under 16, under 12, under care. He was sentenced to three years’ imprisonment on count 3 (the count of rape) which was ordered to be suspended after he had served a period of nine months’ imprisonment. That sentence has an operational period of five years. On each of the counts of indecent treatment he was sentenced to nine months’ imprisonment and three years’ probation. A special condition of that probation was that the respondent undergo such medical, psychological, psychiatric and other examination, treatment, counselling and advice in particular with regard to sex offending as may reasonably be required by an authorised Corrective Services Officer.
- The Attorney-General appealed on the ground that the sentence is manifestly inadequate.
- The circumstances of the offending are set out in a schedule of facts which was tendered before the learned sentencing judge. The offending was all committed on one day, 27 January 2013. The complainant child was eight years old and the respondent was 20 years of age. The respondent was living with his mother and younger brother and the complainant child lived nearby with his family. The respondent knew the complainant through his friendship with the complainant's older brother. He behaved, as the complainant's mother described, like a "good big brother" to the complainant child, taking him fishing, to the movies and for scooter rides.
- The child had slept over at the respondent's house on many occasions. The last occasion on which he stayed at the respondent's house was on 26 January 2013 when he spent the night and the next day with the respondent.
- The respondent's offending was brought to the attention of the police when the respondent's mother told them that her younger son had located a video of the respondent performing oral sex on the child on the respondent's mobile phone. She told the police that she could verify the identity of the respondent and the complainant child. She told the police that she confronted the respondent and he admitted that what he did was wrong and that he needed help. She ordered him to leave the house. Later that evening he sent his mother a text message indicating that he was contemplating suicide.
- The police conducted an interview with the child who spoke in very general terms disclosing that he and the respondent had touched each other on the genitals. He did not disclose any further sexual offending.
- The respondent was arrested. He was found with a black mobile telephone which was so badly damaged that it was unable to be immediately examined. He participated in an interview with police where he made all of the admissions which form the counts on the indictment. He told the police that the child stayed the night with him on 26 January 2013 and when he woke at around 1.00 pm the next day he started to talk to the child about "girls and penises". He then played what he described as the “doddle” game with the child while still in bed together. This involved fondling the child's penis and permitting the child to touch his penis (counts 1 and 2); permitting the child to perform oral sex on his erect penis for about one to two minutes (count 3); performing oral sex on the child's erect penis for about 30 to 60 seconds (count 4); filming the offences using his mobile phone (count 5); taking five to six photographs of the child posing in sexualised positions showing their genitals but not their faces (counts 6 and 7); masturbating himself and permitting himself to be masturbated by the child for a couple of seconds while the child also masturbated himself (count 8). He felt very bad about what had happened and later that day took the phone to a local park and destroyed it by setting fire to it. He described his offending as "disgusting".
- His level of co-operation was described as very high. Without the admissions made in his interview the prosecutor conceded that there would only have been enough evidence to charge him with one or perhaps two offences.
- It appears that the movies and photographs were destroyed and a forensic examination of the phone located in the respondent's vehicle did not contain any relevant evidence. The experienced prosecutor informed the learned sentencing judge that the offending did not entail any level of threats or violence. However the offences involved the betrayal of the trust reposed in him by a boy who was only eight years old.
- The prosecutor tendered a victim impact statement written by the child's mother on behalf of herself, the complainant child and her five other children. She spoke of her feelings of anger, guilt and consequent lack of trust in other people and the extremely adverse effects on her child's character and the consequent effect on her other children.
- As previously mentioned the respondent was only 20 years old at the time of the offending. He did however have a criminal history for offences dealt with in the Magistrates Court. In March and April 2009 he had been dealt with for two counts of assaulting or obstructing a police officer and one count of committing a public nuisance. No convictions were recorded. In August 2009, he was convicted of two counts of wilful damage and one penalty unit was imposed. He was dealt with for minor drug offences with no conviction recorded in November 2011. More seriously he was convicted on 8 June 2012 of assault occasioning bodily harm whilst armed in company and was sentenced to nine months’ imprisonment to be served by way of intensive correction order. The offending was therefore committed while he was subject to, but towards the end of, that intensive correction order. He had no previous convictions for any sexual offending.
- A report from psychiatrist, Dr Barkla, was tendered by the defence. It refers to the respondent's childhood where he and his mother had been subject to extreme verbal and physical abuse by his father who was imprisoned on several occasions for offences of violence or theft. As a teenager the respondent had abused drugs and suffered from depression and anxiety for which he had been treated from the age of eight or nine. Since the offending he had become more socially isolated, hypervigilant and suicidal. He is on a Disability Support Pension. He told the psychiatrist that he had never entertained any sexual thoughts about the child before the offences took place.
- Dr Barkla diagnosed the respondent as suffering from a number of psychiatric conditions particularly Chronic Post Traumatic Stress Disorder, Attention Deficit Hyperactivity Disorder and that he had a history of Major Depressive Disorder. Dr Barkla was of the opinion that his risk in the future could be reduced, particularly in light of an absence of a long standing history of any paedophilic tendencies. He required consistent psychological and psychiatric care which would include a combination of psychological techniques to address the issues raised in the psychiatrist's report and ongoing pharmacological management to manage his ongoing anxiety and depressive symptoms and to monitor his psychotic symptoms.
- Taking all of those factors into account, the seriousness of the offending and the various mitigating features, the experienced prosecutor submitted that a head sentence of about three years was appropriate. The appellant referred to the fact that the prosecutor appeared to be labouring under the misapprehension that the sentence in R v BBE[5] was to be suspended after 12 months. However this mistake does not appear to have affected the sentencing judge as he had a copy of the appeal decision and defence counsel referred to the correct details of the sentence imposed on BBE on appeal. Furthermore the prosecutor correctly submitted that the head sentence imposed in R v BBE was three years.
- The learned sentencing judge gave measured and comprehensive reasons for the sentences he imposed. He referred to the circumstances and seriousness of the offending, the way in which it was discovered, and that the offences and the respondent’s plea of guilty were based on his comprehensive admissions to the police which caused him to have regard to the judgment of the High Court in AB v The Queen.[6] He referred to the respondent’s personal circumstances, his age, his criminal history, the psychiatric report which referred to his mental illness and drug usage, and to the severe and constant violence he had suffered as a child. He also referred to the catastrophic effect on the complainant and his family. His Honour then referred to a number of comparable decisions provided to him by the Crown prosecutor. He referred to R v BBE and the similarities and differences between the present case and that case which had been exposed in argument. He then imposed the sentences referred to at the beginning of these reasons.
The appellant's submissions
- The appellant submitted that the sentence was manifestly inadequate in that it was plainly unreasonable and unjust. The case involved very serious sexual abuse of a young boy. It was submitted that it was not opportunistic, that over a period of time the respondent groomed the boy and gained his mother's trust. It must immediately be said that no such submission was made before the sentencing judge. The allegation of "grooming" was not found in the schedule of facts on which the respondent was sentenced and it is not appropriate to make such an allegation for the first time on appeal.
- The appellant referred to a number of decisions of the Court of Appeal which he submitted stood as a "yardstick" against which to measure the sentence in this case: R v M [2003] QCA 443; R v SAH [2004] QCA 329; R v BBE [2006] QCA 532; R v AAD [2008] QCA 4; R v Bull [2012] QCA 74; R v GAP [2012] QCA 193 and R v Lee [2012] QCA 313. Before the learned sentencing judge, counsel for both the prosecution and defence had referred to and relied upon the first three of those decisions. The appellant submitted that it was unreasonable for the judge to regard the decision in R v BBE as comparable in determining the proper sentence because the appropriate sentence took into account the most unusual factors present in that case, being the offender's intellectual impairment which reduced his culpability, his stopping his offending and confessing to his sister before any complaint was made, and the offences would not have been detected but for his admissions.
- The appellant did not argue that the sentences referred to in those decisions on appeal were inadequate or that this court should reconsider the appropriate range of sentences to be imposed for offending of this type.
The respondent's submissions
- The respondent submitted that the comparable cases referred to by the appellant did not support a conclusion that the sentence was manifestly inadequate.
- The submissions of the appellant on appeal were contrary to the clear and reasoned submissions made by the learned Crown Prosecutor to the learned sentencing judge. The unfairness of inconsistent approaches by the Crown at sentence and on appeal is obvious and the restraint exercised by the court in acceding to appeals in such circumstances has been identified on many occasions.[7]
- There were no exceptional circumstances in this matter which would justify the court acting upon an argument advanced on appeal on behalf of the Crown, that a sentence imposed in accordance with the prosecution submissions was not a proper sentence.[8]
- The principles favouring finality in litigation and against double jeopardy favoured the dismissal of this appeal.[9]
- There was nothing in the reasons of the learned sentencing judge to indicate House v The King[10] error. Disagreement as to the result that is reached in weighing up relevant factors amounts merely to a different conclusion as to the appropriate sentence that should have been pronounced and disagreement about the adequacy of a sentence is not, of itself, sufficient ground for allowing an appeal against sentence.[11] It could not be said that the primary sentencing judge erred in any of the ways that ordinarily justify appellate intervention.[12]
- The respondent submitted that the learned sentencing judge made no error of law in sentencing the respondent. The sentence imposed was not one that was manifestly inadequate. The sentence imposed was not "unreasonable or plainly unjust".[13]
Consideration
- The appeal is brought pursuant to s 669A of the Criminal Code which relevantly provides:
"The Attorney-General may appeal to the Court against any sentence pronounced by the court of trial and the Court may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper."
- The appellant must show an error in the exercise of the sentencing discretion made by the sentencing judge before the jurisdiction given by s 669A is enlivened. As the High Court held in Lacey v Attorney-General (Qld):[14]
"In our opinion, the appellate jurisdiction conferred upon the Court of Appeal by s 669A(1) requires that error on the part of the sentencing judge be demonstrated before the Court's 'unfettered discretion' to vary the sentence is enlivened. The unfettered discretion may be taken to confer upon the Court of Appeal in such a case the power to substitute the sentence it thinks appropriate where error has been demonstrated. The appeal should be allowed. The question that then arises is whether the matter should be remitted to the Court of Appeal on the basis that it did not determine whether the trial judge erred in principle or imposed a manifestly inadequate sentence indicative of such error."
- In order to determine whether or not the sentence was manifestly excessive it is necessary to examine decisions of this court that deal with similar offending. The need to ensure systemic fairness was set out by Gleeson CJ in Wong v The Queen:[15]
“The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.”
- It must be emphasised of course that no two cases are exactly alike but the cases will show features which tend to exacerbate or mitigate in terms of the penalty to be imposed. These authorities all demonstrate the necessity to have regard both to the nature of the crime committed including its effect on the victim and to the personal circumstances of the offender in determining the appropriate sentence.
- R v M[16] was an appeal against conviction and an application for an extension of time within which to appeal against sentence. The conduct was committed not long after a change of the law which meant that conduct which would previously have been a charge of indecent treatment of a child under 12 years punishable by 10 years’ imprisonment had become conduct then amounting to rape punishable by life imprisonment. The facts of that case were that the appellant was convicted of one count of rape and two counts of indecent treatment of a child under 12 who was a lineal descendant. The offences occurred on one evening when a six year old boy, whose father lived separately from his mother, was left with his father overnight while she attended a wedding. The rape involved the appellant putting his penis into the complainant's mouth and the counts of indecent treatment were the appellant sucking the child's penis and rubbing his own penis on the child's back with water and rubbing ejaculate on the complainant's back.
- The case went to trial and the child's evidence was given in the course of three video taped interviews as well as oral evidence and cross-examination at the trial. M was sentenced to three years’ imprisonment for the rape and two years’ imprisonment on each count of indecent treatment, all sentences to be served concurrently. With regard to the application for leave to appeal against sentence, the President, with whom Dutney and Philippides JJ agreed, referred to the change to the criminal law and said that the clear intention of the legislature was to increase significantly the penalties imposed by the courts for such conduct. Her Honour referred to the fact that the offences were a serious breach of a father's trust with potentially devastating consequences for his six year old son and also for the boy's mother. She referred to the fact that physical force was used beyond the emotional force of the father and child relationship. The applicant had no prior convictions but was a mature man who showed no remorse and therefore did not have the mitigating benefit of an early plea of guilty. In holding that the sentence imposed of three years’ imprisonment was by no means manifestly excessive for his combined offences, her Honour observed that it was lenient.
- In R v SAH[17] a sentence of five years’ imprisonment with a recommendation for post-prison community based release after 18 months following a plea of guilty to a count of rape was held to be manifestly excessive. The Court of Appeal instead imposed a sentence of three years’ imprisonment suspended after 12 months with an operational period of three years.
- The applicant in that case was the partner of the mother of a three year old boy who was left in his care while the mother was in hospital. The applicant had inserted his finger in the boy's anus on a couple of occasions until the boy started screaming. The boy complained to his mother. The applicant blamed the boy's mother for not letting the boy bond with him. He told her he had himself been abused as a child.
- The applicant was 19 years old at the time of the offending and had a "not insignificant criminal history".[18] He had been convicted of stealing, burglary and entering premises with intent to commit an indictable offence. Additionally he had been convicted of one count of common assault, two counts of assault occasioning bodily harm and two counts of assault occasioning bodily harm whilst armed, each committed on separate occasions. He had served time in prison and was subject to probation at the time the offence of rape was committed. He pleaded guilty but it was not an early plea.
- Williams JA, with whom the other members of the court agreed, held at [14]:
"Notwithstanding the criminal history of the present applicant a head sentence of five years imprisonment is in my view outside of the range established by previous decisions after making due allowance for the new regime. A single offence of the type in question, where a youthful offender who allegedly had himself been sexually abused as a child was involved, would call for a head sentence of three years imprisonment. Given the early plea of guilty, the youth of the applicant, and the fact that references submitted to the sentencing court indicate reasonable prospects of rehabilitation, that head sentence should be suspended after serving 12 months with an operational period of three years."
- R v BBE[19] is another example of a sentence imposed by this court after allowing an appeal against a sentence held to be manifestly excessive. The applicant had been sentenced to four years’ imprisonment on each of three counts of rape and two years’ imprisonment on one count of indecent dealing with a circumstance of aggravation with the complainant, a child under 12. Each sentence was to be served concurrently with a parole eligibility date 12 months from the date of sentence.
- The offending occurred over the period of one year when the applicant was aged between 21 and 22. The child was his five year old niece. The offences occurred on occasions when he visited the complainant's home and when she visited him with her family. On the first occasion, he lay her across her bed on her back and twice inserted his finger into her vagina for about 20 seconds, penetrating her to a depth of about two centimetres. On the next occasion she told him not to and resisted when he spread her legs open, pushed aside her underpants and licked and sucked her vagina. He told police that she was "screeching a little", looked as if she wanted to cry and as if he was hurting her. On another occasion he inserted his finger into her vagina. On the last occasion, he pushed her skirt up, pulled her underpants to the side, exposed her vagina and got onto his knees and licked her vagina while he described her as not being comfortable or co-operative.
- The offending only came to light when the applicant made admissions to his 17 year old sister who told the complainant's family who then complained to the police. The complainant child made only generalised complaints to the police so that the charges brought turned on his confession to the police. Indeed he told the police that the offences were premeditated in that he "had his eye on the complainant" for about three months before committing the first offence.
- He was a young man who was intellectually impaired and had no prior convictions. However the offences were persistent and he had used a degree of force to overcome her reluctance. The offences had ripped the applicant's family apart and caused significant distress to the complainant child's immediate and extended family unit. He was extremely remorseful.
- The factors which persuaded this court to allow the appeal included his extreme remorse, his outstanding co-operation with the administration of justice, that he stopped his offending and confessed to his sister before any complaint was made and his intellectual deficits which made him considerably less culpable for his offending than otherwise.
- This court imposed a sentence of three years’ imprisonment suspended after six months with an operational period of five years on each of the counts of rape, together with a sentence of six months’ imprisonment followed by three years’ probation on the count of indecent dealing.
- R v AAD[20] was a successful appeal against the sentence imposed on one count of rape committed by a 30 year old man on a six year old girl who was the informally adopted daughter of his partner. The rape consisted of the applicant inserting his finger into the child's vagina. The sentencing judge took into account the aggravating features that prior to digital penetration, the applicant had put his hands down the front of her shorts, touched her vagina and had subsequently taken her hand and placed it on his penis and then forced her head onto his penis so that her mouth touched it.
- At the time of the offending, the applicant had a serious criminal history for sexual and other offending. They included convictions for indecent assault and for rape. He had been sentenced to eight years’ imprisonment for rape. Whilst on bail for that rape he had stabbed his de facto wife and received a further two years’ cumulative imprisonment for that offence.
- The sentence imposed of five years’ imprisonment was reduced on appeal to four years’ imprisonment in view of the fact that the subject offence concerned one incident only and significantly, in terms of gravity, the penetration was digital, not penile. The complainant was however young and the applicant was in a position of trust. He had a serious criminal history; but had the benefit of a plea of guilty and had experienced sexual molestation in his youth.
- In R v Bull[21] a sentence of five years’ imprisonment on a count of rape was reduced on appeal to three and a half years’ imprisonment with a parole eligibility date half way through the sentence. The applicant was convicted after a trial.
- The circumstances of the offending were that the child, who was then 11 or 12 years old, was sick and could not go to school. The applicant, whom the complainant's mother had been dating, offered to look after her at his house. He held her hand and made her rub his penis and then pushed her head down and held her mouth on his penis while he pushed her head down faster and faster. He ejaculated in her mouth and she "chucked it all up in the sink in the kitchen".
- The applicant was 45 years old, a disability pensioner without a criminal history. The rape was opportunistic and the applicant had taken advantage of the child misusing his position as her temporary guardian for his own sexual gratification. The offence involved a degree of force and he showed no remorse. However it was held that a comparison with other like cases, including those referred to in this judgment, showed the sentence was manifestly excessive.
- In R v GAP[22] this court upheld a sentence of four years’ imprisonment on one count of rape (count 5), 12 months’ imprisonment on one count of wilful exposure of the complainant to an indecent videotape (count 4) and six months’ imprisonment on one count of indecent treatment (count 2). The applicant was convicted after a trial on which he was found not guilty of attempting to procure an indecent act (count 3). In an earlier trial he was found not guilty of indecent treatment (count 1).
- The complainant was the applicant's daughter. He was between 28 and 31 years of age when he committed the offences. He had been the victim of sexual abuse himself. His daughter was aged between six and nine years old. He had been convicted after a trial and had shown no remorse.
- Count 5 was committed when the applicant followed the complainant when she went to the toilet. While she was sitting on the toilet, he wanted her to "suck on his doodle". She told him to go away. He grabbed her head and put his penis in her mouth. He ejaculated in her mouth and she "nearly spewed … nearly choked". Count 3 was committed when she was having a bath and he came into the bathroom trying to touch her. He took his erect penis out and tried to get her to touch it. Count 4 was committed when the applicant put on a movie in which there were naked people, a man and a woman having sexual intercourse and oral sex. The applicant masturbated while watching the film with the child.
- An application for leave to appeal against sentence was refused in R v Lee.[23] The applicant was convicted after a three day trial of raping a seven year old girl. He was sentenced to imprisonment for three and a half years’ with his parole eligibility date fixed after serving half the sentence. The applicant had been invited into the home where the complainant lived with her mother and older sister. He had never met the complainant before. He lay down in her room as he said he was feeling sick. When the complainant went to bed he grabbed her from her bunk, kissed her on the lips and put his hand down her pants and under her underpants. He put his finger inside her vagina and hurt her. She was left with a linear abrasion, 2.5 centimetres in length with blood at the base, and a red, swollen and tender vulval area. The experienced forensic paediatric specialist said it was a most unusual injury and that quite significant force would have been required to cause such an abrasion.
- The applicant was 35 years old at the time of the offence and had a lengthy criminal history. He had been convicted of stealing and drug offences and offences of violence. He had been convicted and sentenced to three and a half years’ imprisonment for doing grievous bodily harm and assault occasioning bodily harm. He was subsequently sentenced for trafficking in a dangerous drug and imprisoned for six years and seven months. On his release he was dealt with for stealing and street offences.
- The sentence imposed was held to be appropriate given the seriousness of the offending, the lack of remorse, the injury suffered by the complainant and his criminal history.
Application to the current appeal
- The factors which tend to show that a head sentence of three years’ imprisonment was not manifestly inadequate in the present case include the youth of the respondent, unlike the offender in R v M, R v AAD, R v Bull, R v GAP and R v Lee; that whilst he had a criminal history and was subject to an intensive corrections order at the time, it was less serious than the criminal history in R v SAH and did not include previous sexual offending as in R v AAD or serious offending leading to lengthy terms of imprisonment as in R v Lee. While the respondent was not intellectually impaired in R v BBE, he suffered from psychiatric conditions. The child, whilst young, was not as young as the child in R v SAH; the child was not the source of the initial complaint and even when questioned did not disclose much in the way of offending, meaning, as in R v BBE, the offences charged were substantially based on the respondent's frank admissions to the police.
- Unlike R v BBE and R v GAP, the offences were only committed on one occasion and whilst the respondent occupied a position of trust, he was not the child's father or parental figure as in R v M, R v SAH, R v AAD, R v Bull and R v GAP. Unlike R v M, R v BBE and R v Bull there was no evidence of threats, violence or the use of force and no evidence of the child's resistance or of physical injury to the child as in R v Lee.
- The aggravating factor of the filming of the offences was unlike the other cases but the results were destroyed which is equally consistent with the extreme remorse the respondent showed as it was with the desire to destroy evidence. The sentencing judge was not asked to and did not make any findings that the destruction of the photos and video was done to destroy evidence.
- There was substantial evidence of extreme remorse shown by the respondent's statements to his mother, the police, the psychiatrist, and demonstrated in this case by an early plea of guilty. In R v M and R v Bull, the offenders had been convicted after trial and the plea of guilty in R v M was not an early one. In addition, the psychiatric report suggested that with the appropriate treatment, the respondent's prospects of rehabilitation could be enhanced, particularly in light of an absence of any long standing history of paedophilic tendencies. Further, there is nothing in this case to suggest an exception to the rule that in the ordinary course, the Crown will be held to the position that it has taken at first instance.[24]
- There may be room to doubt whether the sentence should have been suspended after nine months rather than 12 months as advocated by the prosecutor at first instance; but that difference would not be sufficient to describe the sentence imposed as manifestly inadequate. Combining imprisonment partially suspended on the most serious offence with imprisonment followed by probation orders on the less serious offences, enhanced the prospects that the treatment that the respondent clearly needs to improve his prospects of rehabilitation may be provided while he is subject to those orders.
- I would therefore dismiss the appeal against sentence.
Orders
- Appeal dismissed.
Footnotes
[1] Ex 3.
[2] Ex 4.
[3] Child Protection (Offender Reporting) Act, s 36(1).
[4] [2006] QCA 532.
[5] [2006] QCA 532.
[6] (1999) 198 CLR 111 at 155-156.
[7] R v Vincent, Ex parte Attorney-General (Qld) [2001] 2 Qd R 327 at 329 [9], fn 1.
[8] R v KU; Ex parte Attorney-General (Qld) (No 2) [2011] 1 Qd R 439 at 463-464 [95].
[9] R v Price; ex parte A-G (Qld) [2011] QCA 87 at [47]-[50], [57]; R v DBC; ex parte A-G (Qld) [2012] QCA 203.
[10] (1936) 55 CLR 499.
[11] Everett v The Queen (1994) 181 CLR 295 at 306-307.
[12] Dinsdale v The Queen (2000) 202 CLR 321 at 343 [69].
[13] Dinsdale v The Queen (2000) 202 CLR 321 of 325 [6].
[14] (2011) 242 CLR 573 at 598 [62] allowing an appeal against a decision of this court.
[15] (2001) 207 CLR 584 at 591.
[16] [2003] QCA 443.
[17] [2004] QCA 329.
[18] R v SAH [2004] QCA 329 at [7].
[19] [2006] QCA 532.
[20] [2008] QCA 4.
[21] [2012] QCA 74.
[22] [2012] QCA 193.
[23] [2012] QCA 313.
[24] R v Bolton; Ex parte Attorney-General (Qld) [2014] QCA 128 at [20] citing R v DBC; ex parte A-G (Qld) [2012] QCA 203.