R v FVN[2021] QCA 88

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  Between about May 1978 and September 1999, the applicant committed 23 sexual offences.  Each was an offence against a child under his care.  Three of the complainants were his daughters and the fourth was his stepdaughter.
2. [2]
   He raped the first complainant at age 6 or 7 and again at age 14 or 15 and committed eight other offences against her over that period.  Five offences were against the second complainant between October 1987, when she was 7 years of age, and February 1991, when she was 11.  These included raping her when she was aged 10.  He committed six offences against the third complainant between December 1997, when she was 12 years old, and February 1991, when she was 15.  The last two offences were committed against the fourth complainant between March and September 1999, when she was 13.^[1]
3. [3]
   On 22 October 2020, the applicant was sentenced to 13 years imprisonment for each of the three rapes.  Lesser concurrent sentences between three and ten years were imposed for the other 20 sexual offences.
4. [4]
   No order was made about his parole eligibility.  He will be eligible to apply for parole in February 2023, when he will have served half the 13-year head sentence in custody.^[2]
5. [5]
   The applicant seeks leave to appeal against the sentence in order to pursue two challenges to the decision of the learned sentencing judge not to fix an earlier parole eligibility date.

The plea and the sentence

6. [6]
   The 23 offences were among others on an indictment presented in 2017.  The applicant maintained a plea of not guilty to all counts, including the 23 offences, for several years, including after the date the matter was first listed for trial in June 2019.  On 17 June 2019, the Crown Prosecutor signed a new indictment with 31 counts, again including the 23 offences.  The trial did not proceed, due to circumstances beyond the applicant’s control.
7. [7]
   On 9 August 2019, after a change of legal representation, the applicant applied for a separate trial of the counts concerning each of the then six complainants.  The Crown accepted that six counts of assault causing bodily harm to the applicant’s son should be tried separately from all the other counts, as they did not allege a sexual offence.
8. [8]
   On 10 October 2019, the application for six separate trials was heard, and the new indictment was presented.
9. [9]
   On 7 November 2019, the court ruled on the pre-trial application.  It ordered a separate trial for one count alleging indecent dealing against a boy under 16 years, who was not a child of the applicant, and ordered the six counts concerning the applicant’s son be tried together, but separately from the other 24 counts.  The applicant otherwise failed and the 24 counts concerning his daughters were to be tried together.^[3]
10. [10]
    At a mention on 13 July 2020, the court directed that the matter be listed for sentence.  On 20 July 2020, the applicant was arraigned and pleaded guilty to each of the 23 counts.  It was a timely plea.  The Crown entered a nolle prosequi on the other eight counts.^[4]

Proposed grounds of appeal

11. [11]
    There are two proposed grounds of appeal.  The first is that the applicant was denied procedural fairness at the sentencing hearing. The second is that the sentence is manifestly excessive.

Ground 1: Denial of procedural fairness

12. [12]
    The applicant submitted that, before imposing the sentence, the learned sentencing judge should have adverted to the possibility that no earlier parole eligibility date would be fixed.  The applicant contended the failure to do so denied him procedural fairness.
13. [13]
    The applicant relies on the following passage from the reasons of Fraser JA in R v Kitson [2008] QCA 86 at [20]-[21]:

“… the applicant also contends for error in that the possibility of postponement of the parole release date beyond the mid-point of the sentence was not mentioned in submissions or by the learned sentencing judge at the sentence hearing.

In my opinion, that contention must be accepted.  Because that aspect of the sentence was unusual and was not sought or contemplated in the submissions of either party, in my respectful opinion it should not have been imposed without the learned judge adverting to it and giving the parties an opportunity to be heard.”^[5]

14. [14]
    In Kitson, the Court was considering an appeal against three concurrent 12-month sentences imposed for possession of two different dangerous drugs and possession of a mobile phone for use in connection with the supply of a dangerous drug.  The learned sentencing judge was required to fix a parole release date because each sentence was less than three years.  See: s 160B(3) of the Penalties and Sentences Act 1992 (Qld) (PSA).  The date was fixed at the point in time when Mr Kitson would have served nine months in custody, being three-quarters of the head sentence.
15. [15]
    The applicant here was in a very different position to Mr Kitson.  The learned sentencing judge could not fix a parole release date for the applicant, as the head sentence was more than three years.  His Honour had a discretion to fix a parole eligibility date, but was not required to do so.^[6]  And, of course, his Honour did not postpone parole eligibility to a date later than the midpoint of the head sentence.
16. [16]
    The applicant also cited the decisions in R v Hoad [2005] QCA 92, R v Norton [2007] QCA 320 and R v Blanch [2008] QCA 253.
17. [17]
    Ms Hoad was sentenced to five years’ imprisonment with parole eligibility after 18 months.  Her offence was dangerous operation of a motor vehicle causing death while affected by an intoxicating substance.  Jerrard JA found Ms Hoad’s mitigating factors (an early guilty plea, genuine remorse, and remarkable honesty in providing full and frank admissions to the investigating police) would ordinarily have resulted in either a recommendation for consideration for early post-prison community based release, or a suspension of her sentence after about one third had been served.  His Honour observed this “would accord with common sentencing practice in Queensland.”^[7]
18. [18]
    In Norton, Douglas J noted:

“It is common experience for a parole eligibility date to be fixed at a period significantly less than half the head sentence when mitigating factors such as those applicable to this applicant are taken into account.”^[8]

19. [19]
    Mr Norton’s mitigating factors were his youth,^[9] minor criminal history and good work history, his admissions and other cooperation with investigating authorities by identifying co-offenders, and his early plea of guilty on the day the indictment was presented.
20. [20]
    In Blanch, the sentence was six years imprisonment with parole eligibility after two and a half years.  The offence was dangerous driving causing death and grievous bodily harm while affected by an intoxicating substance. Keane JA noted:

“It is the common practice of sentencing courts in Queensland to recognise the value of an early plea of guilty and other circumstances in mitigation by ordering that the offender be eligible for parole after serving one-third of the term of imprisonment imposed as the head sentence.  This practice does not represent a hard and fast rule; but, in this case, there seems to be no reason why it should not have been applied; and the learned sentencing judge did not suggest any such reason.  There are, in my respectful opinion, strong reasons why it should have been applied, in particular to the applicant's youth, his deep and genuine remorse, and the unusually long delay attending his conviction and sentence.”^[10]

21. [21]
    As the reasons reflect, Mr Blanch was young,^[11] entered an early guilty plea, and a psychologist’s report attested to his remorse.  There had been considerable delay by the authorities.^[12]  The Court allowed Mr Blanch’s appeal to the extent of fixing a parole eligibility date after two years in custody.
22. [22]
    There are obvious and important differences between the applicant’s position and that of the appellants in each of Hoad, Norton and Blanch.
23. [23]
    The applicant did not enter an early plea of guilty.  His plea was regarded as timely, because it was indicated about 10 months after presentation of the new indictment, about 9 months after obtaining an order for separate trials of two groups of offences, and before the commencement of a trial. Like an early plea, a sentencing court must take a timely plea into account and may reduce the sentence because of it.^[13]
24. [24]
    A guilty plea may evidence remorse, repentance or contrition on the part of an offender and a willingness to facilitate the course of justice.^[14]  There is no challenge to his Honour’s finding that the applicant “neither expressed nor indicated any remorse whatsoever.”  He made no admissions to the investigating police.
25. [25]
    The applicant was aged from 29 to 51 over the period when he offended against his four children.  He was approaching his 72nd birthday at the date of sentence.  Mr Norton and Mr Blanch were youthful offenders and Ms Hoad might be considered relatively young.^[15]  The difference between youthful genuine remorse and mature lack of remorse affects the rehabilitation, specific deterrence and community protection purposes of sentencing.^[16]
26. [26]
    In R v MCW [2018] QCA 241 the Court considered a similar submission to that in the applicant’s proposed first ground of appeal.  Mullins J, as her Honour then was, explained:

“[28] The starting point for considering the applicant’s and respondent’s submissions on this ground is the nature of the sentencing process as one of instinctive synthesis where the sentencing judge takes account of all the relevant factors to arrive at a single sentence: Markarian v The Queen (2005) 228 CLR 357 at [27] and [37]; Barbaro v The Queen (2014) 253 CLR 58 at [34].  The head sentence and the date which is fixed for court ordered parole or eligibility to apply for parole are elements that make up that single sentence.

[29] The observations by Atkinson J (which whom the other members of the court agreed) in Robertson at [55] are also relevant:

‘A sentencing judge is not obliged to set out each and every alternative available to that judge in sentencing a defendant who appears before the judge.  Counsel who appear before judges on sentences are expected to know the provisions of Queensland’s sentencing law and to make relevant submissions.’

[30] In Kitson, Fraser JA (with whom the other members of the court agreed) accepted the contention that where the offender had a claim upon the discretion of the sentencing judge for an order that he be released after serving less than half the head sentence, in view of his plea of guilty and personal circumstances, a parole release date significantly beyond the midpoint of the head sentence is “very unusual”.  The appeal was allowed and a sentence of 15 months’ imprisonment with a parole release date after six months was substituted. Fraser JA stated at [21]:

‘Because that aspect of the sentence was unusual and was not sought or contemplated in the submissions of either party, in my respectful opinion it should not have been imposed without the learned judge adverting to it and giving the parties an opportunity to be heard.’

[31] It is not “unusual” in the sense that expression was used in Kitson for a head sentence to be imposed that was selected after allowing for the guilty plea, leaving the eligibility for parole date as determined by s 184(2) of the Corrective Services Act 2006 after 50 per cent of the sentence had been served in custody.

[32] It does not follow from the fact that the sentencing judge did not foreshadow to the prosecutor and counsel for the applicant on the sentence that he was considering reflecting the guilty plea in a reduction of the head sentence without any further mitigation that he failed to afford procedural fairness to the applicant.  The structure of the sentence that the sentencing judge imposed was within the alternative sentences that may have applied in the circumstances and must be taken as being within the contemplation of the prosecutor and the applicant’s counsel.  The applicant cannot succeed on the ground for leave to appeal based on denial of procedural fairness.”

27. [27]
    At the applicant’s sentencing hearing, he had experienced defence counsel, who in oral submissions adverted to there being “no rule” that a parole eligibility date has to be fixed at one-third, although it is commonly used “to recognise pleas of guilty.”
28. [28]
    In pronouncing the sentence, the learned sentencing judge explained that the 13-year head sentence was reduced from “15 years or more” to take account of the timing of the applicant’s guilty plea and 53 days the applicant had spent in custody in the Philippines awaiting deportation to Australia.  His Honour took into account the applicant’s timely guilty plea as a mitigating factor, on the basis that it meant the four complainants would not have to give evidence at a trial, saved substantial court time, and amounted to cooperation with the overall administration of justice.

Conclusion on proposed ground 1

29. [29]
    As the Court explained in R v Randall [2019] QCA 25 at [38]:

“In the absence of a statute that prescribes the way in which an offender should be punished, sentencing judges have always regarded all of the elements of a sentence to be flexible.  They will continue to do so in order to arrive at a just sentence in all the circumstances.”

30. [30]
    The applicant’s plea was not early by any measure.  It did not evidence any remorse. It did not justify a large reduction in sentence.  It did not call for a further allowance by way of an early parole eligibility date.  The applicant had no “claim” for a parole eligibility date earlier than the statutory midpoint.
31. [31]
    The possibility that the learned sentencing judge would reduce the head sentence and not fix an early parole eligibility date could not have been regarded as unexpected or unusual.  Such a sentence was a reasonable means of giving effect to the mitigating circumstances, including the applicant’s timely plea.  It did not vary the effect of the statutory provisions as to parole eligibility to further punish the applicant.  It simply allowed them to operate according to their terms.
32. [32]
    We reject the contention that his Honour erred by not specifically raising this element of the sentence as a possibility before pronouncing it.  There was no denial of procedural fairness in this respect.  The first proposed ground of appeal is without merit.

Proposed ground 2: Manifestly excessive

33. [33]
    The applicant’s second proposed ground of appeal is that the sentence was manifestly excessive to the extent that the non-parole period should have been set at a third of the 13-year head sentence, to reflect the mitigating factors.
34. [34]
    At the hearing of this application, the applicant’s counsel relied on R v AAG & AAH [2009] QCA 158, where the two offenders entered early guilty pleas to nine counts of rape and one of deprivation of liberty committed against a single adult complainant.  They identified two co-offenders against whom they were prepared to give evidence at a trial.  DNA samples implicated the co-offenders in the rape of another complainant.
35. [35]
    It was not contended that AAG & AAH involved even broadly comparable offending. However, the applicant relied on the following passage at [20] of the reasons of McMurdo P in explaining the Court’s decision:

“Although there is no mathematical formula and every case will turn on its own circumstances, courts give very significant discounts to sex offenders who plead guilty and save the complainant from giving evidence at committal and trial, usually in the range of one-quarter to one-third of the head sentence applicable after a trial.  Where apposite, a parole eligibility date may also be fixed somewhat earlier than the usual half way point.  Of course, the overall sentence must still be within the appropriate range to reflect the criminality of the offence.”

36. [36]
    With respect, her Honour’s observations are undoubtedly correct.  As are the following of Fraser JA in R v Robertson (2008) 185 A Crim R 441 at [6]:

“To the extent that decisions establish ranges within which sentences are regularly imposed for similar offending, it is of course right to take them into account, but in the end the proportion which the period to be served in prison bears to the whole term is to be fixed by taking into account all of the circumstances rather than by some rule of thumb.  The authorities do not condone, in any aspect of sentencing, some arithmetical approach under which a deduction is made from a pre-determined range of sentences: the sentencing judge is obliged ‘to take into account of all of the relevant factors and to arrive at a single result which takes due account of them all.’” (citations omitted)^[17]

37. [37]
    In sentencing the applicant, the learned sentencing judge was required to have regard primarily to the following factors in s 9(6) of the PSA:

1. “(a)
   the effect of the offence on the child; and

2. (b)
   the age of the child; and

3. (c)
   the nature of the offence, including, for example, any physical harm or the threat of physical harm to the child or another; and

4. (d)
   the need to protect the child, or other children, from the risk of the offender reoffending; and

5. (e)
   any relationship between the offender and the child; and

6. (f)
   the need to deter similar behaviour by other offenders to protect children; and

7. (g)
   the prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community; and

8. (h)
   the offender’s antecedents, age and character; and

1. (i)
   any remorse or lack of remorse of the offender; and

10. (j)
    any medical, psychiatric, prison or other relevant report relating to the offender; and

11. (k)
    anything else about the safety of children under 16 the sentencing court considers relevant.”

38. [38]
    His Honour’s findings about the relevant primary factors were the following.
39. [39]
    Impact statements from three of the complainants, recounted the “devastating impact” of the applicant’s abuse.  His Honour did not doubt the other complainant “has also been affected in similar ways.”  The offences “caused profound trauma which has pervaded many aspects of [the complainants’] lives and continues to do so.”
40. [40]
    The applicant committed the offences against very young children.  They were variously six, seven, twelve and thirteen years of age when he began offending against them.
41. [41]
    The sentence was for multiple offences against four complainants.  The offending was serious and aggressive, including vaginal, anal and oral penetration of children.  It was “deliberate, disgusting and repeated over many years.”  These were “extraordinary, corrupt and protracted sexual depredations”.
42. [42]
    Each of the four complainants was a child under the applicant’s care.  He “grossly breached that trust and [his] proper role as a father.”  The applicant “used that position, in many cases under the guise of purportedly educating [his] daughters to subject them to vile sexual acts for [his] own sexual gratification.”  The offences were “at the zenith of violation of trust and abuse of power.”
43. [43]
    His Honour noted:

“Your advanced age tends against you being a risk to children on the one hand, but your untreated deviant sexual tendencies on which you acted in such a predatory manner over many years tends toward you continuing to be a risk.  In the circumstances, I cannot be satisfied that you have rehabilitated and that there is no or a low risk of you reoffending.”

44. [44]
    The applicant had no prior criminal convictions.  Between 8 and 11 years of age, the applicant had endured serious sexual assaults.  He left school at year 10 and worked as a jackaroo.  He enlisted in the defence forces and served two years in Papua New Guinea, reaching the rank of sergeant.  At age 21 he served abroad for 367 days in the Vietnam War.  He then spent some time in a variety of civilian occupations until he obtained a disability pension.  By April 1994, aged 45, he was diagnosed with post-traumatic stress disorder and assessed as “very badly impaired by a combination of psychiatric and psychophysiological symptoms” that “impair his work performance and threaten his relationships in a way that makes him socially incredibly dysfunctional.”  Later in 1994, he was diagnosed with irritable bowel syndrome; and, in 2007, with lupus.  More recently, he had bowel surgery.  He has substantial hearing loss.
45. [45]
    He was aged between 29 and 51 at the times he offended.  He was 71 at sentence.
46. [46]
    In references, his three sisters and a brother-in-law disavowed witnessing any conduct in the nature of the offences. Two sisters described it as completely alien or out of character.  However, his Honour found:

“Your treatment of those [complainant] children, to my mind, demonstrates your true character, which you have hidden from other members of your family over many years.

Your predatory conduct towards those four young girls over some 22 years for your own sexual gratification suggests that you have a serious sexual deviancy.”

47. [47]
    As noted above, the learned sentencing judge found there was “a clear lack of any remorse whatsoever” on the part of the applicant.
48. [48]
    His Honour also noted:

“No psychiatric report has been placed before me to enable me to undertake a proper consideration of your risk of reoffending after your release from prison.  Also, no submissions have been directed to any treatment that you may have received or may wish to receive or intend to receive in relation to whatever deviancy or paraphilia that you have.  In the absence of any such evidence and given the proliferation of your offending, I cannot be satisfied that you have rehabilitated or that you are not a danger of reoffending in the future.”

49. [49]
    The learned sentencing judge concluded these factors indicated “a most severe penalty is appropriate” in the applicant’s case.  His Honour took into account the applicant’s timely guilty plea as a mitigating factor, on the basis that it meant the four complainants would not have to give evidence at a trial, saved substantial court time, and amounted to cooperation with the overall administration of justice. The 13-year head sentence was reduced from “15 years or more” because of the mitigating factors.  His Honour explained the challenged component of the applicant’s sentence in this way:

“I do not consider that I should follow what is often considered a convention and order your early release on parole.  I consider that punishment, denunciation, deterrence and community protection and particularly your clear lack of any remorse whatsoever warrants your being required to serve half of that sentence before becoming eligible for parole.  Therefore, I will make no order with respect to parole.”

50. [50]
    As the learned sentencing judge observed, the decisions identified by counsel at the sentencing hearing were of limited assistance.
51. [51]
    The crown prosecutor took the learned sentencing judge to the decisions of this Court in R v H [2001] QCA 167,^[18] R v SAG [2004] QCA 286,^[19] R v PAN [2011] QCA 192^[20] and R v BBY [2011] QCA 69.^[21]  The applicant’s counsel below took his Honour to R v DAF [2004] QCA 368^[22] and R v RDD [2004] QCA 403.^[23]
52. [52]
    R v H predates the enactment and commencement of what are now ss 9(4), (5) and (6) of the PSA.  These changes, as his Honour noted, reflect changes in community attitudes to sexual offending against children and have brought about a strengthening of the penalties to be imposed.  The sentences in R v H and earlier decisions do not provide useful yardsticks for the applicant’s sentence, as more severe penalties might now be appropriate.
53. [53]
    In each of R v H, SAG, DAF, BBY and PAN the head sentence was imposed for one or more counts of maintaining a sexual relationship with a child, although in each instance there were other sexual offences.  As the learned sentencing judge noted, the maintaining offence did not exist in the period when the applicant committed most of his offences and he was not charged or convicted of that offence.  The sentencing practice for maintaining, amongst other things, diminishes the usefulness of the sentences in DAF, SAG, BBY, and PAN as yardsticks to inform the applicant’s sentence.
54. [54]
    In R v RDD, no maintaining offence was involved.  The 73 year old prisoner was genuinely remorseful.  He made admissions to the police when interviewed and volunteered some offences that had not been the subject of complaint.  He pleaded guilty after a full hand-up committal.  McPherson JA refused leave to appeal, finding a 14-year sentence with parole eligibility after six years was not manifestly excessive.  Davies JA and Fryberg J agreed.

Conclusion on proposed ground 2

55. [55]
    Whether the absence of an order bringing forward parole eligibility renders the applicant’s sentence manifestly excessive falls to be considered in the context of the sentence as a whole and by reference to the principles for such a challenge.  To find this sentence manifestly excessive, the Court must be satisfied, having considered “all of the matters that are relevant to fixing the sentence”, that there was “a failure properly to exercise the discretion which the law reposes in the court of first instance”.^[24]  It is manifestly excessive if it is so unreasonable or unjust that the Court must conclude that a substantial wrong has occurred in fixing the sentence.^[25]
56. [56]
    The applicant’s sentence of 13 years without any order fixing an early parole eligibility date is broadly consistent with the sentence imposed in R v RDD, considering the differences in the offending conduct, the genuine remorse and significant cooperation by RDD and the applicant’s complete absence of remorse.  Allowing for the changes in the statutes over the past 20 years, the applicant’s sentence is not at variance to the sentences for other serious sexual offences against children to which the Court was taken.
57. [57]
    The applicant’s guilty plea was not an early plea by any measure.  It did not evidence any remorse.  With respect, the learned sentencing judge correctly identified its merits.  The mitigating factors (including the plea) did not justify a large reduction in sentence.  They did not call for a further allowance by way of an earlier parole eligibility date than the default fixed by the CSA.  Having regard to the applicant’s overall criminality, the sentence is neither plainly unreasonable nor unjust.  It was within a sound and proper exercise of the sentencing discretion.

Final disposition

58. [58]
    The application for leave to appeal against sentence is refused.

TABLE OF OFFENCES