R v DAB[2022] QCA 268

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  Argument was heard in respect of the applicant’s application for leave to appeal on 16 September 2022.  At the conclusion of the hearing the Court reserved its decision.
2. [2]
   On 20 September 2022 the following orders were made by the Court:

   1. Application for leave to appeal granted.
   2. Appeal allowed.
   3. Vary the sentence imposed on the applicant by the primary judge on 7 April 2022 by substituting “2 years” for “2 years and 6 months” as the period for which the applicant is imprisoned for each count.
   4. The orders otherwise made by the primary judge on 7 April 2022 are confirmed.
   5. Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) it is stated that the applicant has spent 643 days spent in presentence custody between 16 December 2020 and 19 September 2022 and it is declared that no time is taken to be imprisonment already served under the sentences.
   6. Reasons for the orders to be published at a later date.
3. [3]
   The following are our reasons for the orders made by the Court.

Introduction

4. [4]
   On 7 April 2022 in the District Court at Ipswich the applicant pleaded guilty to three counts of incest.  On each count he was sentenced to a term of imprisonment of two and a half years which were ordered to be served concurrently with each other.  However they were ordered to be served cumulatively upon the sentences of imprisonment that had been imposed earlier on 19 October 2020 for offending against the same complainant.
5. [5]
   The grounds in support of the application are:

   1. The sentence imposed is manifestly excessive because of the learned sentencing judge’s error in failing to declare the 477 days pre-sentence custody, between 16 December 2020 and the date of sentence, as time served under the sentence.
   2. The sentencing judge erred in failing to make a statement about the presentence custody not to be declared subject to s 159A(3B) of the Penalties and Sentences Act 1992 (Qld) (PSA).
6. [6]
   In making the orders on 20 September 2022, we considered that there was error in terms of the first of these grounds of appeal, but not the second.
7. [7]
   By the second ground of appeal the appellant contended that a trial judge who fails to make a statement as to the dates between which an offender had been held in custody and who fails to calculate the time an offender had been held in custody before the sentence makes an error of law which required resentencing in terms of Kentwell v The Queen.^[1]The requirements of s 159A(3B) of the PSA are mandatory.  If a trial judge fails to state those dates and calculate the relevant time, but nonetheless goes on to state what part of the time is in fact declared as time served under the sentence, it seems to us that the omission to comply with s 159A(3B)(a) and (b) would not of itself be an error which would compel this Court to resentence in accordance with the principles in Kentwell.
8. [8]
   We now go on to explain our reasons in relation to the first ground of appeal.
9. [9]
   In order to understand the arguments advanced in support of the application and the sentence imposed which is the subject of the application it is necessary to identify some uncontroversial facts and say something of the offending subject of the earlier convictions and sentences.
10. [10]
    At the time of all of the offending being the subject of the earlier convictions on 19 October 2020, and the offending the subject of the sentences concerning this application, the applicant was 34 years of age (38 years at the time of his sentencing on 7 April 2022).  The complainant was his biological daughter who was 14 years old at the time of the offending.
11. [11]
    On 19 October 2020 the applicant was sentenced following pleas of guilty to one count of grooming a child under 16 years, six counts of indecent treatment of a child under 16 years, one count of using electronic communication to procure a child under 16 years and one count of rape the circumstances being that the applicant forced his penis into the complainant’s mouth notwithstanding her protests.  This offending occurred between 30 September 2018 and 11 February 2019.  He was sentenced to a term of imprisonment on the rape of five years, two years on the grooming count and the count of using electronic communication to procure and 18 months on each of the indecent treatment counts.  The sentences were ordered to be served concurrently.  Some 604 days of pre-sentence custody were declared as time served and a parole eligibility date was fixed at the date of sentencing on 19 October 2020.
12. [12]
    Shortly after the applicant’s convictions and the sentencing, the complainant made further revelations which resulted in the applicant being charged with the three counts of incest subject of this application.  The offending was detailed in an agreed statement of facts.^[2]Count 1 occurred in November 2018 whilst the applicant’s wife was in hospital giving birth to their child.  When the applicant returned from hospital he told the complainant that she would be sleeping in the master bed that night, he picked her up and laid her down on the bed.  Once they were in the bed the applicant grabbed the complainant and pulled her on top of him and he inserted his penis into her vagina.  A short time later the offending ceased and the complainant ran to her bedroom.  Count 2 occurred in December 2018 after a family Christmas lunch at his in-law’s family home.  The applicant and the complainant left the lunch as the applicant told the group that he had to go to work.  Once they arrived home the applicant pushed the complainant inside and down to a lounge room couch where upon he got on top of her and penetrated her vagina with his penis whilst the complainant lay quietly on the couch.  The penetration ceased a short time later, the applicant saying he did not want to get the complainant pregnant.  The complainant fled to her bedroom.  Count 3 occurred on an occasion in January 2019 when the applicant’s wife and youngest child were in hospital.  The complainant and the applicant had been watching a movie when he told her to go and wait in the master bedroom.  The applicant came into the bedroom a short time later and pushed the complainant back onto the bed.  He removed her pants and then his, before penetrating her vagina with his penis.  The penetration ceased a short time later and the applicant got off her “in a hurry” and ran to the bathroom.  The complainant fled to her bedroom.  The complainant did not disclose this offending to anyone until after the sentencing on 19 October 2020.
13. [13]
    Relevantly the incest offences occurred on three different dates within the period during which the appellant committed the offences for which he was sentenced on 19 October 2020.
14. [14]
    The sentencing judge imposed a sentence of two years and six months upon each of the three counts of incest.  The sentences were ordered to be served concurrently with each other but cumulatively upon the sentences imposed on 19 October 2020.  A parole eligibility date was fixed at 7 April 2022 and convictions were recorded.  The effective sentence therefore to which the applicant was sentenced on 19 October 2020 and then on 7 April 2022 was seven years and six months.

Failure to consider making any pre-sentence custody declaration – an error

15. [15]
    By the day of sentence (7 April 2022) the applicant had been held in custody on remand for some 477 days from 16 December 2020.^[3]He was also serving the sentence imposed on 19 October 2020.  His Honour did not make a declaration with respect to the pre-sentence custody of 477 days contemplated by s 159A of the PSA observing in the sentencing remarks that he was constrained from making such a declaration in respect of the cumulative sentence he was imposing by the decision of R v Braeckmans.^[4]
16. [16]
    With respect, Braeckmans did not constrain the sentencing judge from making such a declaration.  Section 159A mandates that a declaration, whether it be one in terms complying with s 159A(3) or one in terms of s 159A(3B) must be made.^[5]The offences which were appealed in Braeckmans were committed by the offender when on parole.  Thus s 156A of the PSA was engaged requiring that the sentence of imprisonment be served cumulatively.^[6]It was in this context that the discretion conferred by s 159A was modified as explained by McMurdo JA (with whom Sofronoff P and Kelly J agreed) in Braeckmans:^[7]

3. “[30]
   Section 156A leaves the sentencing court with no discretion: in circumstances which engage the section, the sentencing court must impose a cumulative sentence. On the other hand, s 159A provides a discretion to the sentencing court. Where s 159A is engaged, the sentencing court may declare the whole of the time on remand for the subject offence as time spent in custody in serving the sentence, or it may declare some or none of it as time served. Because s 159A does not mandate an allowance of pre-sentence custody, but instead leaves that to the sentencing court’s discretion, the two sections can be construed so that they give effect to harmonious goals. The discretionary power under s 159A is an element of the court’s sentencing power, so that it must be exercised consistently with the requirements of the Act, including the specific requirement of s 156A. Neither the terms of s 159A nor the explanatory note provide any indication of an intention that the amendment to s 159A was to allow sentencing courts to qualify the mandatory terms of s 156A.

3. [31]
   Consequently, in a case such as the present one, a sentencing judge must exercise the power under s 159A to avoid the consequence that a cumulative term of imprisonment will become in part a concurrent term. A declaration of pre-sentence custody in the prisoner’s favour should not have been made in the present case. Instead it should have been declared, pursuant to s 159A(3B)(c), that no time is taken to be imprisonment already served.”

3. (Footnotes omitted)

17. [17]
    Section 156A of the PSA is not engaged in this case, as the offences of incest were not committed when the applicant was on parole or in any of the other circumstances contemplated by that section.
18. [18]
    Mr Cook of counsel for the respondent endeavoured to persuade the Court that the reasoning in Braeckmans applies whenever the proposed sentence is cumulative, whether it is imposed as a mandatory cumulative sentence pursuant to s 156A or a discretionary cumulative sentence pursuant to s 156 of the PSA.  The answer to this submission is found in the policy reasons identified in Braeckmans for giving s 156A priority over s 159A by requiring the sentencing judge to refuse to make a declaration of presentence custody in respect of a mandatory cumulative sentence that would otherwise have had the effect of bringing forward the commencement date of the cumulative sentence, so that it started before the end of the period of imprisonment on which the sentence would be cumulative.  The policy reason for not making the declaration in those circumstances is that it defeats the punitive aspect of the mandatory cumulative sentence imposed under s 156A of the PSA.  That imperative position does not apply to a cumulative sentence imposed in the exercise of the sentencing court’s discretion under s 156 of the PSA and effect can be given to the purposes of both s 156 and s 159A of the PSA by imposing a sentence which has a partly cumulative effect.
19. [19]
    In the applicant’s case, where there was not any statutory provision which mandated a wholly cumulative sentence, the sentencing judge was obliged to consider whether a declaration under s 159A(3) or s 159A(3B) should be made and, if the latter, what, if any, time should be declared.  The sentencing judge’s misapprehension as to the effect of the decision in Braeckmans caused the sentencing discretion to miscarry because the sentencing judge failed to consider whether or not to declare some part of the 477 days as time served.  It was therefore necessary for this Court to resentence the applicant, unless, independently we came to the same conclusion about the appropriate sentence as the primary judge.^[8]

Sentencing – submissions and discussion

20. [20]
    The respondent submitted that the same sentence of imprisonment for seven years six months (two years six months cumulative upon the sentence imposed on 19 October 2020) should be imposed.  The applicant ultimately submitted that the effective sentence should be imprisonment for six or seven years (one or two years cumulative upon the sentence imposed on 19 October 2020).
21. [21]
    There can be no doubt that the applicant’s conduct was very serious.  Over a period of almost four and a half months from 30 September 2018 to 11 February 2019 he engaged in a course of conduct of sexual offending against his biological daughter, aged 14.  The conduct is summarised above,^[9]and included an oral rape, three acts of incest involving unprotected vaginal intercourse, six counts of indecent treatment and one of grooming.  Relevant factors include the age difference and the circumstance that at relevant times she was subject to his parental authority.  That the incest involved unprotected vaginal intercourse is a serious feature.  Aspects of general deterrence and the need to denounce such serious misconduct are relevant.  In favour of the applicant are that until the convictions of 19 October 2020 he had no conviction for offending.  Further the plea (7 April 2022) was an early plea, and the plea of 19 October 2020 was described as a timely plea.  Thus, the applicant spared the complainant the ordeal of a trial and there were indications of remorse.
22. [22]
    Turning to the sentence and its structure in the particular circumstances, it has been correctly observed that because the circumstances of incest are diverse it is difficult to speak of the “normal range”.^[10]
23. [23]
    As the presentence custody for the incest offences was also imprisonment served on account of the sentence imposed on 19 October 2020, it was appropriate not to make a presentence custody declaration in respect of the presentence custody for the incest offences.
24. [24]
    Because the applicant was not being resentenced for all of his offending, having been sentenced on 19 October 2020 for some of the offending, a cumulative sentence structure was appropriate, so that the sentence imposed, together with the sentence of 19 October 2020 resulted in a total sentence that reflected the seriousness of all the offending.
25. [25]
    There was an additional complication that by the time the applicant came to be sentenced on 7 April 2022, he had been in custody since 23 February 2019 and so had served three years, one month and 15 days.  That was a period greater than one-third of any total sentence for all the offending in contemplation on 7 April 2022.  For this reason, this Court reduced the sentence for the incest charges, so that in total, with the sentence of 19 October 2020, the head sentence was seven years.
26. [26]
    Turning to the requirements of s 159A(3B)(a) and (b) of the PSA, we stated time served since arrest for the offending which was the subject of this sentencing to the date the orders were made to dispose of the appeal,^[11]and declared that none of that time was to be taken to be imprisonment already served under the sentence.  The sentence and orders made on 7 April 2022 were varied accordingly. The parole eligibility date fixed at 7 April 2022 by the sentencing judge was otherwise confirmed.