R v MBZ[2014] QCA 18

SUPREME COURT OF QUEENSLAND

[1] CHIEF JUSTICE:  I have had the advantage of reading the reasons for judgment of Gotterson JA.  I agree that the application should be refused, for those reasons.

[2] GOTTERSON JA:  The applicant, MBZ, who represents himself in this application, was convicted on six counts of indecent treatment of a child under 16 years of age (Counts 2 to 7 inclusive) at the District Court at Maroochydore on 14 August 2013.  The applicant had first pleaded not guilty to these counts and to an additional count of maintaining an unlawful sexual relationship with a child under 16 years of age (Count 1).  Once the pleas of guilty had been made, the prosecutor indicated to the court that the Crown would not proceed with Count 1.  A two hour adjournment then ensued prior to the taking of submissions on sentence.

[3] The offending on each count for which the applicant was convicted was attended with circumstances of aggravation.  The complainant was, to the applicant’s knowledge, his daughter and was under his care at the time:  Criminal Code s 210(4).  For five of the counts, the offending occurred when the complainant was under 12 years of age:  s 210(3).  For the other count (Count 7), she was 12 years of age.

[4] The applicant was sentenced on each of Counts 2, 4, 5 and 6 to four years imprisonment and to two years imprisonment on each of Counts 3 and 7.  All terms of imprisonment are to be served concurrently.  No parole eligibility date was set.

[5] By an application filed on 10 September 2013, the applicant has applied for leave to appeal against the sentence.  The sole ground on which the application is made is that the sentence is manifestly excessive in all the circumstances.

The circumstances of the offending

[6] Count 2 occurred on a family camping trip in December 1989 when the complainant was about three and a half years old.  She and the applicant went for a walk to get some firewood.  The applicant sat her on a branch or log.  He took her clothes off, lay over the top of her and rubbed his naked penis on the outside of her vagina.  He then turned away and ejaculated into his hand.

[7] Count 3 occurred when the complainant was five or six years old.  She and a friend were in the applicant’s bedroom.  He had the girls take off their clothes and pose on the bed.  He then used a Polaroid camera to photograph them.

[8] The offending for Count 4 occurred when the complainant was 10 or 11 years old.  The complainant went to visit the applicant for the weekend.  At that time he was living apart from the complainant’s mother.  The applicant took the complainant to his bedroom and then rubbed his penis on her vagina.  Neither of them was clothed.  The applicant had told the complainant that if she participated, he would take her to a swimming pool, which he thereafter did.

[9] For Count 5, the offending consisted of the applicant’s taking the complainant to a vacant lot near where she was then living.  This occurred sometime before her twelfth birthday.  She recalled it as being on a Father’s Day.  The two of them took items from the kitchen, the complainant believing that they were going for a picnic or to make a tree house.  At the vacant lot, the applicant put the complainant’s hand on his penis and taught her to masturbate him.

[10] Counts 6 occurred when the complainant was aged six or seven years.  She was lying on the bed in the applicant’s bedroom.  He licked her vagina.

[11] The offending for Count 7 involved conduct in which the applicant asked the complainant to come upstairs.  He said that he would show her a video of what he would like her to do and that if she did it, he would give her $50.  He then showed the complainant a pornographic video of people engaged in sexual intercourse which included a close-up image of a penis penetrating a vagina.

[12] The complainant told her mother of the offending when she was 12 years old.  They immediately left the family home and moved interstate.  A formal complaint was made to police in June 2011, approximately 12 years after the last of the offending.  At the time of the offending, the applicant was aged between 43 and 52 years.

[13] The offending caused the complainant some physical discomfort in terms of soreness in the vaginal region and pain while urinating.  In a victim impact statement tendered at the sentence hearing, she spoke of her anxiety towards having children for fear that they might be subjected to abuse similar to that to which she was subjected.

The applicant’s personal circumstances

[14] The applicant had an extensive criminal history in New South Wales which was taken into account by the learned sentencing judge.  There were numerous property offences during his youth.  Significantly, in June 1981, he was convicted on pleas of guilty of committing an act of indecency upon a girl under 10 years of age, two offences of buggery and two offences of unlawful carnal knowledge.  He was sentenced to seven years imprisonment for the buggery offences, five years for the unlawful carnal knowledge offences and two years for the indecent act offence.  For each of these offences, the victim was another daughter of the applicant from a different relationship.  The act of indecency involved use of a time delay camera to photograph his putting his erect penis into the victim’s mouth.

[15] At the hearing of this application, evidence was tendered which revealed that the applicant was again sentenced at the District Court at Maroochydore on 1 October 2013, on pleas of guilty to two further counts of indecent treatment of a child under 16 years of age between 30 June 1991 and 1 January 1993.  For each offence, the sentence imposed was 18 months imprisonment.  The imprisonment for the first offence is to be served concurrently with the applicant’s current sentence.  The imprisonment on the second offence is to be served cumulatively.  A parole eligibility date of 14 February 2016 was set.  With respect to each of these offences, the complainant was not a child of the applicant.  His offending involved use of photography and an aspect of digital penetration of a female child.

[16] When the applicant was sentenced in August 2013, he was a full-time carer of his brother who is a Vietnam war veteran and a carer of his current partner who has an acquired brain injury.  He had enjoyed an apparently good work history until about 2009 when he undertook care of his brother.

Matters taken into account upon sentence

[17] In addition to the matters to which I have referred, the learned sentencing judge took into account the following:

(a) that the applicant’s offending involved a gross breach of trust with continuing consequences for the complainant;

(b) that neither penetrative conduct nor particular violence was involved; and

(c) the applicant’s pleas of guilty, tempered by the facts that there had been a previous trial and committal at which witnesses, including the complainant, had given evidence.

[18] His Honour concluded:

“It seems to me that moderating, as far as is appropriate, the approach of this Court, having regard to those features of this case which can be said to act in your favour and taking what guidance can be taken from the cases that have been referred and the different circumstances which applied in those cases, that your counsel’s submission should be accepted and that what I propose to do is impose a total sentence of four years imprisonment upon you.  I will not otherwise make any order about fixing a parole eligibility date.  That will follow as a matter of statutory consequence.”[1]

The ground of appeal

[19] The applicant has filed a handwritten outline of submissions in which he complains that the prosecutor misled the learned sentencing judge on certain factual matters.  He says that the extent of his 1981 offending in New South Wales was overstated; that his true remorse for his offending was ignored; and that a call for a personal deterrence in the sentence was misplaced given the applicant’s current lack of sexual activity because of prostate problems.  The applicant has not sought leave to adduce evidence which might lay a factual foundation for any of these complaints.  Moreover, a perusal of his Honour’s sentencing remarks indicate that he did not proceed on a misapprehension of fact in any substantial respect.

[20] The applicant also complains that he and his legal representatives were not given enough time to prepare submissions on comparative sentences prior to the sentence hearing.  There is good reason to doubt the soundness of this complaint.  The transcript of the sentence hearing reveals that his counsel made detailed submissions on his behalf.  Furthermore, those submissions did include reference to two decisions of this Court.[2]

[21] Neither of those decisions concern offending comparable with that of the applicant.  In YD, the offender was convicted on one count of indecent dealing with his five year old granddaughter.  He had no criminal history.  In R v B, two acts of indecent dealing with a young stepdaughter were involved.  There were regarded by the court as being “towards the lower end of the scale of offences of this nature”.  The offender had no relevant criminal history.

[22] By contrast, the circumstances in R v R[3] do compare with the present case.  There, the offender was convicted after a trial on two counts of indecent dealing with a child under 16 years of age.  The complainant was his daughter, then 10 or 11.  Significantly for present purposes, the offender had previously been convicted of indecent dealing with her when she was six or seven years old.  He had been sentenced to two and a half years imprisonment for that.  The later offending for which he was sentenced involved making the complainant play with his penis and testicles and suck them.  He rubbed his penis around her vagina.  The offender was sentenced to five years imprisonment.

[23] It is unsurprising then that in light of this decision, the applicant’s counsel submitted at the sentence hearing that “without factoring in the New South Wales criminal history, the range (for the applicant’s offending) would be between three and four years”.[4]  That submission was an appropriate one to make.

[24] In my view, the learned sentencing judge acted with some restraint.  He imposed a sentence which fairly reflected the criminality of the applicant’s appalling repeat offending.  I reject any criticism of the sentence as being manifestly excessive in all the circumstances.

Order

[25] I would propose the following order:

1. Application for leave to appeal against sentence refused.

[26] MULLINS J:  I agree with Gotterson JA.