R v DMP[2006] QDC 331

[2006] QDC 331

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE ROBIN QC

THE QUEEN

v.

DMP

BRISBANE

DATE 03/08/2006

SENTENCE

HIS HONOUR: This is an unusual sentencing occasion. It starts out as the all too common situation of a stepfather seeking sexual gratification at the expense of his stepdaughter. It becomes unusual in light of Exhibit 3 which is a report about you from the psychiatrist Dr Shelley Keane. It indicates that apart from some physical difficulties about which perhaps something can be done such as your deafness, which is obviously embarrassing you today, you suffer the disadvantage of an extremely low IQ on the doctor's assessment. That was likely to cause difficulties with Court proceedings which were mentioned and it may well have some bearing on the amount of blameworthiness there may be in your dreadful offending against your stepdaughter which occurred from when she was about seven until she was about 16. The most serious count is one of maintaining an unlawful sexual relationship with her. Then there are five separate counts relating to individual incidents which she could describe in enough detail to justify charging them separately.

The background, the Court hears, is that that separately charged conduct was actually representative of many other instances of which particular detail couldn't be given.

You have been insistent that, although charged with rape at One stage on a basis that was never made clear to the Court, You never raped the girl and, indeed, on the facts as presented by the Prosecutor there never was penetration of her vagina either by a finger or anything. There were occasions of simulated sex which involved rubbing your penis close to her, many occasions of masturbation by you in the girl's presence, often after you had sought stimulation by merely getting her to expose her vagina to you. You frequently ejaculated in her presence, but never in or on her, always on to tissues which you had by you or the toilet if the offending behaviour occurred in a bathroom.

It seemed to me the most serious of the offences separately charged was count 3 which involved your getting the child to fellate you.

You have made a point, it seems to me, of stressing that the child was not forced and that whenever she asked you to stop some particular activity, you would do it.

It is rather unlikely, I would think, that a girl so young was intending to indicate consent or was even capable of indicating consent with the understanding which the law requires. From the point of view of the law, a child under 16 is not able to consent to sexual activity and anything of that kind perpetrated on or with her by an adult person constitutes an offence. This unfortunate child whose victim impact statement I have was under 12 for a good deal of the offending, including count 3 which I mentioned.

Further than that, she was in your care. You grievously abused your role as her father. You were cunning enough to seek gratification at her expense on occasions when your wife was not around; for example, when she was obliged to attend hospital overnight with your son Wayne who was born with Down Syndrome and has other health disabilities. It has been truly said by Mr Briggs that you and your wife ought to receive acknowledgement for the way in which you have assisted him through his difficulties.

There is no suggestion that your wife had any idea of what was going on with her daughter. It typically happened after taking the daughter to places like the shed in the backyard, some place in the bush, getting there on a motorbike, or in a motor vehicle or on occasions when your wife was not about. These matters came to light only in the very early part of 2005 when your stepdaughter complained. Your wife confronted you then. You made some modest admissions to her, but once again seem to have been fairly cagey about it.

You said to her, and maybe truly, I do not know, that you could not recollect much because you tried to forget about these things yourself. You adopted a similar attitude in a so-called pretext phone call which she made to you, but there were some admissions in a two part record of interview with police. You became increasingly inclined to acknowledge your wrongdoing which you did know was wrongdoing.

You are entitled to a considerable amount of credit for this guilty plea. At the stage of the committal, which was a full hand-up one, you still faced charges as serious as rape. A course of negotiation by your representatives with the DPP has led to the charges being ones the Court hears of today. Despite your difficulties mentioned by Dr Shelley Keane, you have been able to function effectively in the community, holding down employment and the like. That is disrupted at the moment. Your family has disintegrated and you are with your elderly parents for the moment and understandably for the moment not working. You still have contacts with your wife and Wayne and other son who the Court is pleased to see in Court along with the others supporting you today. I hope you are grateful for that support.

Your criminal history relevantly contains a single count of unlawful carnal knowledge at a time when you were 17. That was dealt with by a fine accompanied by a surprisingly heavy default imprisonment which you did not have to serve as things turned out. You are now 50 years old. The period ascribed to the unlawful sexual relationship runs from the beginning of 1990 to the 18th of September 1998 when your stepdaughter turned 16.

Dr Shelley Keane has some concerns that there might be further sexual offending by you. It would seem to me that is likely to happen only if you find yourself in similar circumstances to those that existed while you were with your wife and family, namely that there is a young girl readily available to you. It is rather sad that our community does not seem to have any systems in place to ensure that people who present that risk can be prevented in some way from taking steps which make it any easier for them to bring that risk to fruition to the great harm of children who might be involved.

Dr Shelley Keane in her report indicates that in her understanding there are no sexual offender programs of the kind made available to persons in custody which are designed or appropriate for people suffering the mental challenges which you do. That raises the possibility at least that you will not have any opportunity to participate in such a program, a consequence of which in turn may be that you do not become eligible given the guidelines as they are understood from outside the system for post imprisonment community based release.

I note the doctor's view that you would be unusually vulnerable in custody. The sad reality is that not much can be done about a lot of those circumstances.

The Prosecutor has submitted that the head sentence for count 1 will come in the range of five to six years, relying on Snow [2000] QCA 238 and C [2000] QCA 145. You are not entitled to the same amount of consideration as the offender who turned himself in to police at a time when he was under no suspicion in police quarters, although in his church he had made a full breast of his wrongdoing. There the sentence was four and a half years with a recommendation after 18 months.

Mr Briggs has accepted what was said about the sentence range, urging the Court to come down at the lower end of it. I did not understand Mr Byrne to be objecting to that approach. The significance of the five year term, of course, is that it permits the Court to suspend the sentence. Mr Briggs' suggestion was that that might occur at the two year point which seems to me a conservative and realistic submission. I would not have been surprised to hear him go lower.

The Crown's position is that, having regard to Dr Shelley Keane's views, it would be preferable if you were returned to the community after some assessment of your fitness and also on the basis of supervision being provided in both the interests of you and the interests of the community and girls in particular. That would occur under post-prison community based release, or as it used to be called, parole.

Too little is known by those involved in the sentencing process, in which I include Judges, about the actual operation of that system. Apocryphally it is taken to be the case that it is very difficult for sexual offenders to obtain early release on that basis and perhaps it is well nigh impossible for those who have not acknowledged their guilt, which you have done, and also completed successfully the sexual offender program which you may not be able to do and through no fault of your own. That is an unknown.

There are plenty of cases in the Court of Appeal where a sentencing Judge's expectations that the offender would return to the community pursuant to a recommendation have been frustrated for administrative-type reasons when the Court of Appeal has acted to substitute a suspension as the only available means of securing an offender's return into the community. In other cases, head sentences have been adjusted and the like.

The possibility was adverted to before lunch of a combination of recommendation for post-prison community based release and suspension - creating the possibility of earlier release if the authorities responsible for considering whether the recommendation should be implemented agreed to that, but also offering a fixed date when incarceration would come to an end.

It's certainly not an orthodox sentencing outcome but it's one which has happened before, and without any indication from the Court of Appeal, when given the opportunity to say so, that it's not permissible. The first occasion was The Queen v. Kenneth Jack Davidson, CA number 7 and number 8 of 1999, BC 902145. More recently came Daly, [2004] QCA 385.

The explanation for the unusual order in Davidson was taken to be that section 157 of the Penalties and Sentences Act required the sentencing Judge to make a recommendation given that the offender, or offenders, previously had one in place. The parole recommendation was for a time three months before the date for suspension.

At paragraph 15 McPherson JA said that:

The question now being considered is whether a suspended sentence being imposed for the first time is capable of coexisting with a recommendation for eligibility for release on parole."

In the following paragraph his Honour said:

"I am reluctant to hold that an order partly suspending the sentence and coupling with it a recommendation for parole, as was done in the present case, is something that is necessarily beyond the power of the sentencing Judge to make."

Paragraph 17 commences:

"What at first sight does appear rather inappropriate is to make a recommendation that the offender be considered eligible for parole on a date some months earlier than the date on which the sentence of imprisonment is to be suspended."

Those comments were made against the background of a strong view in the Court of Appeal that the sentences were inadequate for a number of reasons, including an effort to achieve parity with an offender who had been sentenced on a separate occasion. The outcome was that the dates when there might be early release were brought into line.

In Daly the sentencing Judge imposed separate sentences, one suspended after 12 months with a view to leaving a considerable period of imprisonment hanging over the offender's head as a threat for the future, the other the subject of a recommendation for post-prison community based release.

Jerrard JA said at paragraph 31 that:

"The object which the learned Judge sought to achieve by the sentences imposed, namely the deterrent effect of a suspended sentence and the beneficial effect of counselling for the appellant while on parole, were sensible, but have been frustrated by the delay the Judge did not foresee." The problem was unanticipated delay in the offender's

completing the requirements of the Corrections Board for parole.

Mr Daly had complained in a submission, which gained the express endorsement of two Court of Appeal Judges, that:

"The learned sentencing Judge's unconventional imposition of concurrent terms of imprisonment, one partially suspended and one a recommendation for consideration for early release, had produced a combination of orders that in this particular case was inconsistent or unjust."

There is nothing in that judgment to preclude the making of the order which is under consideration, however unusual it might be. The point of it is to offer you, as the offender, and the authorities responsible for considering if and when you get post-prison community based release the opportunity for them to make a favourable decision and set appropriate conditions with the consequence, ideally, that for the balance of the sentence you would be under supervision.

It's a difficult question, perhaps, but my hope, if not expectation, would be that if post-prison community based release were established before the sentence came to be suspended, it would survive the suspension date. That may be a problem for the future.

I think it would be unjust if you were incarcerated for longer than the two year period suggested by your counsel. I wish to do everything I can to promote the possibility that when you are released, that will be on the basis of parole or its current equivalent, which is typically made available to offenders who plead guilty a third of the way through this sentence.

The sentences will be as follows: on count 1, five years imprisonment; on counts 2, 4, 5 and 6, one year's imprisonment; on count 3, imprisonment for two years and one day.

All of that imprisonment is concurrent.

It's to be suspended for five years after you have served two years.

The Court recommends that you be eligible for post-prison community based release after 20 months.

The Court declares that you are entitled to credit for two days presentence custody, being the 7th to the 9th of May. That ought to be drawn to the attention of the authorities.