R v EL[2017] QCA 135

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  I agree with the orders proposed by McMurdo JA and with the reasons given by his Honour.
2. McMURDO JA:  After a three day trial by a jury in the District Court, the appellant was convicted of two offences of having carnal knowledge of his daughter.  On each count he was sentenced to a term of five and a half years’ imprisonment, those terms to be served concurrently.  He appeals against his convictions and applies for leave to appeal against his sentences.
3. He was tried and sentenced in April 2016.  The offences were alleged to have been committed more than 40 years earlier, in 1972 and 1973.  At that time he was 37 or 38 years old.  At the time of his trial he was aged 81.
4. He was represented by counsel at his trial but was unrepresented in this Court.  This explains the way in which his grounds of appeal against his convictions are expressed, which are to the effect that the complainant is a liar and that at his trial, he “could not say anything [to contradict her evidence] as [he] was told not to say anything”.
5. In essence, he argues that there was a miscarriage of justice because relevant evidence, including his own evidence, was not adduced at the trial.  In that respect, he is critical of the advice which he received from his counsel.
6. The respondent’s outline of submissions anticipated also an argument that the verdicts were unreasonable, that is to say that upon the evidence it was not open to the jury to be satisfied beyond reasonable doubt that he was guilty.^[1]  That argument is not discernible in the appellant’s notice of appeal and written submissions.  Nor was it made in the appellant’s relatively brief oral submissions.  Having read the evidence at the trial, it is my view that the verdicts were open.

The evidence at the trial

7. There were two witnesses at the trial: the complainant and an investigating police officer.  The appellant did not give or call evidence.  The prosecution case depended entirely upon the evidence of the complainant who was examined and extensively cross-examined.
8. At relevant times in 1972 and early 1973, the appellant had the care of his five children.  The appellant’s wife, who was the children’s mother, had formed a relationship with another man and was living in another state.
9. The complainant was the oldest of the children.  She was born in January 1957 so that she was 15 and 16 at the time of the offences.  A brother was born in 1959, another brother in 1961, another brother in 1967 and a sister in 1968.  Before the appellant and his wife separated, the family lived in a Melbourne suburb.  In late 1971, they moved to Lightning Ridge, so that the parents could look for opals.  According to the complainant, the family returned to Melbourne for a short time in 1972 before the appellant and the children moved to Anakie in Queensland.  By this stage their mother had left the household.
10. In Anakie, the appellant was searching for sapphires.  At one stage the family was living in a campsite and at certain times it was living in what the complainant described as a Commer van which was described as a type of mobile home.
11. The complainant said that some of the children, including the complainant, were then moved to or near Brisbane to stay with others for their welfare.  However they each moved back to Anakie to re-join the family.  The complainant said that she did so probably in August or September 1972.  The family then moved to Emerald, where they lived in the Commer van in a caravan park.
12. The complainant said that the first of the offences occurred towards the end of 1972.  She said that in the days preceding that event, the appellant had been saying to her that “men actually needed special needs, and they needed women to help them out.”  The complainant said that the appellant had been “grooming me for a while”.  One night, when the family had gone to sleep for the night in the van, she said that the appellant tapped on her shoulder and told her to be quiet and not to make a noise.  She was then lying on the bench where she normally slept.  She said to the appellant that she “didn’t want to do this,” but that he was insistent.  In her evidence in chief she then described the event as follows:

“All right.  And what happened after you saw the glare? --- I ended up just getting up off the bench, climbed over.  He walked up to the back of the bed, dodging the kids that were on the floor.  I don’t remember who slept where at the time, but I had to cross over two children over the floor.  I’ve sat on the edge of the bed, and dad was on the right-hand side, and it’s whispered to me that I’d have to insert a tablet.  I again said that I didn’t want to do any of this, he’d have to do something else, and again, he glared at me.  I had to insert the tablet into my vagina, and ---

Could you ---? --- I’d have to wait.

Sorry.  Do you know what the tablet was? --- It was called Arendal.

Do you know what it was? --- I didn’t know what it was, I just know that I had to insert this tablet.  But I had to wait:  apparently, it foamed up.

And how did you insert the tablet – well, did you see where the tablet came from? --- No.  Dad had it.  It was – it was a waxy-feeling tablet.  I don’t know where he got it.  I’d never sighted anything in any packet form or anything.  He’d have this tablet in his hand, and he’d give it to me.

And --- ? --- So I inserted this tablet and waited, and then he said I’d have to lay down.  I tried delaying by saying I didn’t want to, and I would sit there and wait, and he’d say come on, come on, and ---

And these conversations, do you know how loudly or softly you were speaking? --- Whispering, because we had all the kids in the car, and they were on the floor and on the bench, so it had to be really quiet.  I couldn’t afford for the kids to hear anything.  I had to make sure they didn’t see anything.  I couldn’t live with myself knowing that the kids would be sitting there watching dad doing what he’s doing.

And what happened after you --- ? --- I – I lay – I took my undies off, and I inserted the tablet, and [I lay] on the bed.  He asked me to move.  I sort of slid up the bed, rather than having my leg on the side of the floor, dangling.

And what happened next? – He crawled on top of me, and he inserted his penis.  I just turned my head to the side, and I just cried and thought this is wrong, this is my father.  He’s supposed to honour me and treasure me.  I couldn’t help but think it was an eternity of ---

Well --- ? --- just laying there.

Sorry.  Where did he insert his penis? --- After the tablet had sort of foamed up after a couple of minutes.  Well, it wasn’t even a couple of minutes.  It had to be there for 30 seconds or something like that.”

13. Shortly afterwards, the family moved to a fossicking area called Reward, where they lived in the van and a small tent.  The complainant said there were episodes of sexual intercourse with the appellant in the van whilst the family was there.
14. After a short time, most of the family moved to Rockhampton where they lived in what the complainant described as “half a house”.  Two of the children had gone elsewhere to be under the care of others.  In Rockhampton the appellant and the complainant each found work.  He worked for a printing company and she worked at a local newspaper.
15. In Rockhampton, the household consisted of the appellant, the complainant and two of her brothers.  There were two bedrooms, one occupied by the appellant, the complainant and a brother in the other room, with the remaining brother sleeping on a couch.  At first in her evidence, the complainant said that at this address, intercourse with the appellant occurred “a couple of times”.  She said that on the first of these occasions, the appellant came into her bedroom and tapped her on the shoulder saying that “he needed me”.  She said that her brother, who was asleep in the same room, began to stir.  The complainant followed the appellant to his room where intercourse occurred after, again, she had used a tablet which he provided.  She said that he kept these tablets in the refrigerator.
16. The complainant said after “other occasions of sexual contact” in the house, she told the appellant that she would not have sex with him again.  She said she then left the house and that he followed her telling her to get into his car.  She refused, saying that she was going to the police.
17. By this stage, the complainant was in a relationship with a young man with whom she worked at the newspaper.  She had told him what the appellant had been doing.  She said that after discussing the matter further with him, they decided to go to the Rockhampton Police Station where she made a complaint and provided a statement on 14 January 1973.  She was asked who was present when that statement was provided and answered that her father was there, along with her boyfriend.  She said that her father “was already sitting in the room when Detective Amps took us up to the room.”
18. Although at first, she said that she had provided a statement to police, she added (again in examination in chief) that the statement was not completed before she and her boyfriend left the police station.  She never returned to live with the appellant.  She and that young man later married and they had two children before his death in 1987.
19. She said that her next contact with the appellant was in Christmas 1974.  She subsequently moved to Melbourne in 1976.
20. In examination in chief, she was asked to describe her relationship with the appellant, between 1973 and 2011, and answered that it was “fair”.  There was no further sexual contact between the two after she left the house in Rockhampton in 1973.  In 2011, she went to police in Victoria to complain of the events the subject of the offences.  The Victorian police referred the matter to the Queensland police for investigation.
21. The examination-in-chief occupied about 45 minutes.  The cross-examination, which I will now discuss, occupied more than two and a half hours.
22. The cross-examiner explored facts and circumstances, both in Emerald and in Rockhampton, which could have explained why the complainant would have falsely alleged in 1973 that these events had occurred.  In Emerald, the complainant had had some work and received wages.  She was unhappy about the amount of those wages which her father was requiring that she pay to him.  She agreed that her sense of grievance on that subject made her go to a police officer in Emerald to complain about that matter.  She also agreed that she said nothing to that police officer, or any other officer in Emerald, about the sexual activity.  She agreed that she then knew she could complain to police about that conduct.  She was then asked why she had not told the police officer in Emerald about the conduct and answered:

“I didn’t know where my legal right was at the time.  I didn’t know if I was going to be put back into the convent and I didn’t know what the repercussions was going to be with dad.  And I didn’t even know if I could actually leave home and go somewhere else.”

23. She was asked whether the police officer had told her that “if you had a good family to go to, you could do so?” She answered “yes”.  She agreed that she did “end up doing that for a short time”.  She said that for a short time she lived with another family nearby.  She added that she was worried about the “repercussions of telling the police” about the sexual conduct.
24. She was asked about the number of times in which she claimed that intercourse with the appellant had occurred in Rockhampton and gave answers which varied from “three”, “a couple of times a week”, “a lot” and “several times”.^[2]  She was asked whether, in a statement she had provided to police, she had said that the appellant’s bedroom door was always open during the episodes in Rockhampton, and answered that that was the case.  She agreed that at the same time, one of her brothers was sleeping outside on the couch.^[3]
25. She was then cross-examined about the events leading to her being at the Rockhampton Police Station.  She agreed that she and her boyfriend had gone to a wedding and that when she had not returned home until the next morning, there was an argument with the appellant.  After then, the boyfriend was not allowed to visit the house although he did so when the appellant was not there.^[4]
26. It was suggested that there was a point in time in Rockhampton where the appellant lost his job and told the family that they would have to move back to Melbourne.  She answered: “Not that I know of.  I don’t know”.^[5]  It was suggested that the complainant was upset by this development, because she wanted to continue her relationship with her boyfriend and that when the appellant packed up the van to return to Melbourne, she ran away from the home with the boyfriend.^[6]  She rejected those suggestions, as she did the further suggestion that it was because she had run away from home that she found herself at the police station because she had been reported as a missing person.^[7]  It was in that circumstance, it was suggested but denied, that her father was at the police station.^[8]
27. She was then asked about a five page document which she had typed and emailed to police in 2011 or 2012.  She agreed that in that document, she had recalled that she had been at the wedding in Rockhampton, and after not returning overnight, was in trouble with the appellant who had said she would be allowed out only to go to work.^[9]  She also agreed that, in this document, she had recalled that “Dad was now talking about going back to Melbourne”, but said that this had only been a “general conversation” and that he had not packed up to leave.^[10]  But she also agreed that in this document, she had recalled that “I did not want to go.  I ran off” and that this occurred on 14 January 1973.^[11]  And she agreed that she had not written in that document that she ran off because she did not want to have sex with her father on that night.^[12]
28. The complainant was asked about who was at the police station in Rockhampton.  After being referred to that document which she had typed, she ultimately agreed that the appellant had not been in the room when she told the police officer of the sexual episodes.  She agreed that at one point, when she was being interviewed by police, she went to the toilet and used that opportunity to flee the police station, accompanied by her boyfriend.  She did not return to the station, or the house where the family had lived, and next saw her father in 1974.^[13]
29. She was then cross examined about her contact with her father over the years until she went to the Victorian police.  She agreed that she had been to his house in Victoria on a number of occasions and that he had been to her house in Wodonga twice.  She also agreed that in 1986, she and her father had travelled to Holland together, where they spent about six weeks travelling on an extended holiday.^[14]  That she then offered this explanation:^[15]

“The holiday was a forced issue.  We’d only just purchased our house, and he came after that year when he went to Europe.  And he turned around and he said that – he promised his family he would take me with him …

He made me go.”

30. She recalled that she had visited his house in Victoria where she “had to weed his garden for 12 months for five dollars an hour”.^[16]  When she was asked about other contact with him over the years she said^[17]:

“I tried to establish a relationship with my father for my children’s sake for normal … I didn’t have grandparents.  I didn’t have uncles, and  didn’t have aunties. … I at least wanted my children to know that they had grandparents on both sides of the family.”

She agreed that she had had a “fair relationship” with him from 1974 onwards.

31. She agreed that after the appellant’s long term partner had died in January 2009, she and her husband moved to a self-contained unit beside the appellant’s property in Victoria.  She said that this “was also a forced issue.”^[18]  For some time, she said, she was travelling back and forward between this unit and her house in Wodonga, as well as spending some time in Canada and a couple of months in hospital.  Her evidence was she had gone to the unit next door to the appellant’s house reluctantly and only because he had forced her “with words” to do so.  She said that she then felt sorry for him.  In December 2009 she and her husband moved to live full time in the unit.^[19]
32. She agreed that “things were fine” with the appellant during 2010.  She said that friction occurred between them in February 2011.  She denied that this was because of changes that she and her husband were making to the unit without his permission.  From that point, the rental had to be paid by them to the appellant through a real estate agent and the appellant told the complainant and her husband “he didn’t want to be a landlord or father anymore.”^[20]  The complainant said that she believed that the appellant was sick and had dementia.
33. She said that it was only after this discord that her memory of the alleged offences became more detailed and she began to have flashbacks to the relevant events.^[21]
34. She agreed that she commenced a civil claim for damages from the events, the subject of the offences, in a court in Victoria, which was filed after this improvement in her memory.^[22]
35. After extensively questioning her about the details of the alleged offences, the cross-examiner concluded by suggesting that “none of this has ever happened”, the incident with the Rockhampton Police in 1973 “was to do with you not wanting to go to Melbourne” and that her complaint to police in 2012 was because she was “getting back at her father … for another grudge”.  Each of those suggestions was rejected.^[23]
36. On the second day of the trial, there was evidence from Detective Senior Constable Nash, who had been involved in the investigation of the complaint made in 2011.  She said that she had made inquiries about the whereabouts of Detective Amps, but was unable to locate him.  She was cross-examined only briefly and that evidence need not be discussed.
37. The prosecutor then closed her case and the appellant, through his counsel, elected not to give or call evidence.  The two counsel addressed the jury before the trial judge began his summing up at about midday, concluding in the early afternoon.  There is no apparent basis for criticising any part of the summing up and nor is any criticism made.  The jury retired at about 2.20 pm.  About two hours later they sent a note saying that they were “currently undecided” and “unable to reach an unanimous decision at this time”.  They were instructed to continue their deliberations on the following morning.  On that day, the third day of the trial, they returned with their verdicts at about 10.30 am.

Reasonable verdicts

38. Although there is no ground of appeal that the verdicts were unreasonable, I have considered that question, not only because the appellant is unrepresented, but also because there are features of this case which give some cause for concern.
39. The first of those features is the length of time between the events and the trial: more than 40 years.  The trial judge well explained the difficulty in defending the case because of that delay.
40. The second matter is the history of the relationship between the appellant and the complainant, over a period of at least 25 years, before she went to the Victorian Police.  They were on good enough terms for her to accompany him on an extended overseas holiday.  Her evidence that she was forced to accompany him is not, on the face of the transcript, convincing.  By then, she was a woman in her late 20s who had married and had had children.
41. Thirdly, there was the fact that she went to the Victorian Police only after the relationship between the appellant and the complainant had soured.  Again on the face of the transcript, her explanation that, coincidently, her memory had become more detailed at this time, is unpersuasive.
42. She had, of course, complained to the Rockhampton Police at or very soon after the events in question.  However, that was at a time when she was wanting to stay in Rockhampton with her boyfriend and to live apart from her father.  Moreover, that evidence emerged only in her cross-examination and after she was confronted with what she had written about that subject in 2011.
43. All of these matters, in combination, provided a substantial basis for the appellant’s counsel to argue to the jury, as the transcript of the summing up records that he did, that for those reasons and others the complainant’s evidence was not to be accepted.
44. However, in R v Baden-Clay,^[24] the High Court said that:

“The setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”

(footnote omitted)

45. Despite the matters of concern which I have identified, I would not be persuaded that the verdicts should be set aside as unreasonable, where those verdicts have resulted from the jury’s assessment of the complainant, after watching and listening to her testimony throughout most of the first day of the trial.

The appellant’s arguments against his convictions

46. The appellant argues that his case was not conducted as it should have been.  He says that he should have given evidence, not only to state that he was innocent but also to impugn the character of the complainant.  In that respect, he seeks to have this Court act upon evidence of the complainant’s behavioural problems as a child, when she was often in institutions because of her sexual conduct with men and boys.
47. In no respect is this evidence said to be fresh evidence.  The appellant says that all of this information was available at the time of his trial and his argument is that there was a miscarriage of justice because his trial counsel did not use it.
48. The distinction between fresh evidence and new evidence, Margaret McMurdo P said in R v Spina^[25] is important for two reasons:

“The first is because the community has an interest in ensuring that defendants charged with criminal offences ordinarily have only one trial at which they have an opportunity to put forward all the available evidence upon which they rely.  It is not in the public interest for defendants to hold back evidence so that, if they are unsuccessful at trial, they can use the withheld evidence to appeal and obtain a new trial.  The second reason is that, where there is admissible fresh evidence, it is equally against the public interest for a conviction to stand as the conviction would not be based on all the available relevant evidence.”

49. But as McMurdo P added:^[26]

“Appellate courts recognise, however, that there remains a residual discretion in exceptional cases to receive new or further evidence which is not fresh in the legal sense where to refuse to do so would result in a miscarriage of justice … In determining an appeal which turns on new or further evidence, there are strictly two questions.  The first is whether the court should receive the evidence.  The second is whether that evidence, if received, when combined with the evidence at trial, requires that the conviction be set aside to avoid a miscarriage of justice.  Frequently those two questions can be conveniently dealt with together.”

(footnotes omitted)

50. This is a case of the kind described at the end of that passage.  I would admit the evidence so that it can be seen whether, read with the evidence of the trial, there was a miscarriage of justice.  But as I will now explain, there was no miscarriage of justice in this case.
51. A number of documents from government agencies, both in Victoria and Queensland, and from courts as well as other documents have been tendered.  They are all relevant to the behaviour of the complainant as a child, for the most part, prior to the alleged offences.  The appellant says that these documents had been obtained by his then solicitor in Melbourne “over a four year period” but that his barrister “did not use any of the documents”.  The appellant said that he had produced also a list of potential witnesses and complains that his counsel did not “call any person [on] my List.”  However, the bundle of documents which he has put before this Court does not include a list of witnesses, although it does include a handwritten list of documents.
52. These new documents show that prior to the events in question, the complainant had come to the attention of police and welfare agencies for incidents of sexual conduct with men and teenage boys.  For example, in 1969, the Children’s Court at Dandenong had ordered that she be placed in the care and protection of an institution upon the basis that she was “exposed to moral danger.”  That order was made upon evidence which included a statement by a policewoman which said, amongst other things, that the complainant was the “worst [child] I have interviewed” and that she had been involved in sexual activity with “married men in the locality”.  The policewoman added that the complainant’s parents were “partly to blame” for her behaviour.  The statement records that the policewoman had been told by the complainant that this behaviour had occurred.  It also records that a medical examination of the complainant had been consistent with what she had been told.
53. It is unnecessary to discuss further the numerous documents within this new evidence produced to this Court.  It is sufficient to say that had this evidence been admitted at the trial, it would have made the jury believe that at the time of the events in question, the complainant was sexually experienced and that, as some of the evidence at the trial had indicated, the complainant had been placed under the care of institutions because of her behaviour.
54. The admission of this evidence would have required the trial judge’s leave under s 4 of the Criminal Law (Sexual Offences) Act 1978 (Qld).  The evidence could not have been admitted without the judge being satisfied that it had a “potential relevance to the facts in issue” or was a “proper matter for cross-examination as to credit.”  In that latter respect, it could not have been admitted unless the judge had considered that the evidence would be “likely to materially impair confidence in the reliability of the complainant’s evidence”, the purpose of that rule, within s 4, being “to ensure that a complainant is not regarded as less worthy of belief as a witness only because the complainant has engaged in sexual activity.”
55. The appellant’s argument seeks to make this material relevant to the complainant’s credibility, rather than indicating any way in which it was relevant to an issue.
56. Nor would this evidence have been relevant to her motive for making her complaint in 1973.  The appellant’s case was that she falsely claimed that these things had occurred in order to justify to police her decision to leave the house and live elsewhere.  That was a motive which had some evidentiary support.  But its likelihood would not have been enhanced by evidence of her previous sexual experience.
57. The relevance of this evidence to the complainant’s credibility is far from clear.  The appellant’s argument seems to be that her sexual conduct with a number of men, including married men, showed that she was a person of poor character so that her evidence should not have been accepted.  But the evidence could not have had that impact upon the minds of a properly instructed jury.  After all the complainant was no more than a young teenager at the time and came from a household which, according to the same documents, was likely to have contributed to her behaviour.  On the other hand, this evidence, if admitted, could well have made the jury sympathetic towards the complainant, as they learnt how she had been a victim of sexual misconduct by other men when she was a child.
58. More generally, the appellant’s counsel, if in possession of this material, could well have considered that it would be disadvantageous to the appellant’s defence, because it had the potential to distract the jury from the core arguments which his cross-examination had yielded.
59. In response to this new evidence, the Crown tendered an affidavit by the appellant’s trial counsel.  In that affidavit, counsel said that he explained to the appellant, before the trial, his right to give and call evidence.  He says that during a conference shortly prior to the trial, it was apparent to him that the appellant had a poor memory of relevant events.  The advantages and disadvantages of giving and calling evidence were explained to the appellant and it was the appellant’s decision not to do so.  The appellant, he says, was adamant that he would not do so.  The appellant signed a document, dated the day before the commencement of the trial, confirming instructions.
60. Upon the unchallenged evidence of his trial counsel, it is clear that it was the appellant’s decision not to give or call evidence.  Moreover the evidence which the appellant has been allowed to tender in this Court, had it been admitted at the trial, was unlikely to have been influential, at least in the appellant’s favour.  It was at least as likely to have been unfavourable to the appellant’s case.
61. The appellant’s submissions also include a list of the parts of the complainant’s testimony which he says were lies.  In no case, is that established by evidence or argument.  Rather, this is merely a series of assertions.  The appellant has not demonstrated that his case was conducted in some way which could not be reasonably explained.  It is well established that counsel has a wide discretion in the conduct of a criminal trial.  As Gleeson CJ said in TKWJ v The Queen:^[27]

“[U]nfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused.”^[28]

And in this case, it does not appear even that a course was taken by his counsel which was to his possible disadvantage.

Conclusion on the appeal against convictions

62. The appellant has demonstrated no miscarriage of justice.  If the reasonableness of the verdict is challenged, that challenge should be rejected.  There was no irregularity at the trial or defect in the judge’s directions.  I would order that the appeal against the convictions be dismissed.

Application for leave to appeal against sentence

63. It is argued that the sentence in each case was manifestly excessive.
64. The appellant came to Australia in his twenties with his wife and their then children.  He had training as a printer, which he used for most of his working life until his retirement at the age of 55.  He had no criminal history.  By the time of the trial, he had moved to Cairns where, as the judge accepted, he had been involved in charitable work.  But his Honour added that that was not uncommon for someone who was awaiting his trial on a serious offence.
65. The judge found that the offences had had a “significant impact” upon the complainant who was “plainly socially damaged” and distrustful of authority.  He accepted her evidence that she felt still “dirty, horrible, degraded and always … sick.”  The judge accepted that there had been an adverse impact upon her sex life with her first husband and that she required ongoing counselling.
66. The judge described the offending as egregious.  He said that it involved “a significant element of manipulation” by the appellant as a parent.  In particular he had provided her with gifts which the other children did not receive.  But the judge took into account that there had been no threats of violence which accompanied the offending.
67. The judge said that in this case, the consideration of personal deterrence was not a major one, especially having regard to the appellant’s age and the absence of any other criminal history.  He said that for the same reasons, the consideration of rehabilitation was not significant, although he had not demonstrated any insight into his offending and there had been no evidence of remorse.  He said that the most relevant considerations were those of denunciation and general deterrence.  He then pronounced the sentence.
68. Neither of the arguments in this Court suggested that there were comparable cases which particularly indicated the excess or otherwise of these sentences.  As I will explain, the appellant’s age means that other cases would have relatively little benefit as comparable decisions.
69. His age was relevant in two ways.  The first was that he had lived for over 40 years following these offences with no further offending.  On one view of the judge’s sentencing remarks, the relevance of his age in this respect, as indicating his rehabilitation, was recognised.
70. But his age was also relevant because the imposition of a term of five and a half years for a person already in his eighties resulted in a greater burden than the same term imposed on a younger man.  In R v S,^[29] the applicant was convicted of a number of offences (against children), including one of rape.  He was sentenced to various terms the longest of which was 12 years.  The applicant was then 67 years of age with no relevant previous convictions.  By a majority (Pincus JA and Muir J, de Jersey CJ dissenting) that term was reduced to nine years because of the applicant’s age.  Pincus JA there said:^[30]

“One complaint made by counsel for the applicant … was that the judge did not make sufficient allowance for the applicant’s age; he will serve until he is nearly 80, if he obtains no remission or parole.  When this was discussed before us, Mr Ridgway, for the respondent, appeared to invite us to consider the matter on the basis that the applicant was likely to spend only six years in custody.  That does not appear to me to be a safe assumption.  The length of time the applicant will spend in custody depends on factors which are rather unpredictable:  how successful he may be in providing evidence of the likelihood that he will not re-offend, the current policy with respect to the grant of parole or remission, and other matters.  Of course, there must be a substantial chance that these will turn out to be, for the applicant, life sentences. …  [I]t appears to me that this applicant’s age (67) is a mitigating factor.”^[31]

71. The judge does not appear to have considered the relevance of the appellant’s age in that way.  As Pincus JA said in the above passage, whether and when the appellant would be granted parole remains an unknown.  For a man already in his 80s, a term of five and a half years is onerous and could well be a life sentence.
72. In this way, the exercise of the sentencing discretion miscarried and in my view, the appellant should be re-sentenced.  It is obvious to say that these were very serious offences according to the standards of all right-minded persons in the community (although the judge’s comment that the offending “strikes at the heart of our Judeo-Christian heritage” was inappropriate).
73. I would not be prepared to depart from the judge’s findings about the nature and extent of the impact of the offences upon the complainant.  I agree with the judge that the considerations of personal deterrence and rehabilitation are hardly relevant in this case.  His age is a mitigating factor in the way which I have discussed and in that way, he should receive a lesser sentence than would be appropriate for a younger man.  Further, because he has no need for the benefit of a supervised release from prison, it is preferable, given his age, to fix a date on which he would be released from custody.  In my view, the appropriate sentence, upon each count, is one of five years’ imprisonment, to be suspended after two and a half years with an operational period of five years.  It should be noted that his release at the halfway mark of his sentence would correspond with the point at which he would be eligible for parole under a five year sentence.

Orders on the application for leave to appeal against sentence

74. I would order as follows:
    1. Grant leave to appeal.
    2. Allow the appeal against sentence on each count.
    3. Order that the appellant be sentenced to a term of five years’ imprisonment on each count, to be suspended after two and a half years with an operational period of five years.
    4. Order that a conviction be recorded for each offence and that it be declared to be a conviction for a domestic violence offence.
75. FLANAGAN J:  I agree with the orders proposed by McMurdo JA and with his Honour’s reasons.