Re R v "J" [1982] FCA 229 (10 November 1982)

FEDERAL COURT OF AUSTRALIA

Re: THE QUEEN
And: "J"
No. G.22 of 1982

COURT

FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Toohey
Gallop
Davies JJ.

HEARING

CANBERRA
10:11:1982

DECISION

This is a Crown appeal against sentence. The principles to be applied in such an appeal were discussed in R v Tait and Bartley, 24 ALR 473, and I need not discuss them in detail. In brief, they are those applied on an appeal against sentence by a defendant. Brennan, Deane and Gallop JJ stated the effect of these principles as follows, at p.476,

'An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v R [1913] HCA 32; (1913) 16 CLR 336 at 339-40; R v Withers (1925) 25 SR(NSW) 382 at 394; Whittaker v R [1928] HCA 28; (1928) 41 CLR 230 at 249; Griffiths v R [1977] HCA 44; (1977) 15 ALR 1 at 15-17).'

A similar approach was enunciated by the Full Court of the Supreme Court of Victoria in R v Butler (1971) VR 892, R v Williscroft and Others (1975) VR 292 at 297, and R v Dole (1975) VR 754 at 761 and 764, by the Court of Criminal Appeal in New South Wales in R v H, (1980) 3 A.Crim.R.53, and by the Full Court of the Supreme Court of South Australia in R v Wilton, 28 SA SR 362.

The facts of this matter have been fully canvassed in the reasons for judgment of Mr Justice Toohey and I need not repeat them. The crimes to which the respondent pleaded guilty were serious crimes indeed. They involved the sexual abuse of the respondent's step-daughter when she was 15 years of age. These were not isolated incidents. The respondent had interfered sexually with his step-daughter from the time she was 10 years of age. Moreover, it was not the respondent but his step-daughter who, by her complaints to other people, brought the conduct to an end.

Had the offences been committed on a girl who was not his step-daughter, I am sure that the respondent would have been required to serve a substantial term of imprisonment. Section 71 of the Crimes Act 1900 provides:

'71. Whosoever unlawfully and carnally knows any girl of or above the age of ten years, and under the age of sixteen years, shall be liable to penal servitude for ten years.'

In R v Butler, cited above, in relation to offences involving girls above the age of ten and under the age of sixteen years, the Full Court of the Supreme Court of Victoria increased a sentence of two years' imprisonment to a totally effective sentence of seven years' imprisonment. In R v Dole, cited above, in relation to offences of indecently assaulting a girl aged nine, a Full Court of the Supreme Court of Victoria substituted a custodial sentence for an order which had released the prisoner on a bond to be of good behaviour and to come up for sentence when called upon to do so.

In the present case, however, the respondent's sentence was suspended notwithstanding that the offences were committed upon his step-daughter.

Section 73 of the Crimes Act 1900 reads :

'73. Whosoever, being a schoolmaster or other teacher, or a father, or step-father, unlawfully and carnally knows any girl of or above the age of ten years, and under the age of seventeen years, being his pupil, or daughter, or step-daughter, shall be liable to penal servitude for fourteen years."

Thus, it is Parliament's view that the carnal knowledge by a father of a step-daughter is a more serious crime than the carnal knowledge of a girl to whom the offender is not related. In R v H, cited above, in relation to an offence of incest with a 16 year old daughter, the Court of Criminal Appeal New South Wales substituted a sentence of three years' imprisonment, with a non-parole period of twelve months for an order releasing the respondent upon his entering into a good behaviour bond and undertaking to appear for sentence if called upon to do so. Moffitt P said, at p.66,

'It must be accepted that the community regards incest particularly with a young daughter with great abhorrence which is reflected by the provision for imposition of sentences of imprisonment of up to fourteen years.'

And in R v Butler, cited above, at p.896, Winneke CJ, Starke and Crockett JJ said,

'So long as the social policy evidenced by those maximum sentences remains embodied in the relevant legislation, the Court must pay due regard to it.'

The suspension of the respondent's sentence resulted from the weight which the learned trial Judge gave to the circumstances of the step-daughter and of the family. His Honour said :

'The family is very much dependent on the prisoner. ... The evidence is that with goodwill, perseverence and the expert attentions of psychiatrists and social workers there is a reasonable prospect that this family may be restored to normality. It would however probably be impossible to achieve this goal if the prisoner were given a custodial sentence. ... In my opinion the factors which lead to the appropriate sentence in this case are these. On the one hand, the sentence has to be severe enough to represent a fitting punishment for what is, as I have said, an abominable crime and a mark of the community's disapproval. And secondly, there is strong argument for the suspension of that sentence to enable the prisoner to begin the work of restoring his family's integrity which he has so grievously harmed.'

The learned trial Judge suspended the sentence principally because of the harm which he considered the sentence would cause to the innocent victims of the respondent's crimes, namely, his step-daughter, his wife and the children. That it was proper to take their interests into account is not disputed. Plainly that was a proper consideration. The issue in this appeal is whether, by giving undue weight to that factor or, to put it another way, by giving insufficient weight to the maximum sentence fixed by Parliament, his Honour's discretion miscarried to an extent such as to justify intervention by an appellate court.

As the learned trial Judge hoped would happen, the step-daughter has been restored to her home. If the respondent is called upon to serve a term of imprisonment, the step-daughter may suffer greater harm than already has occurred. In the first instance, the family will lose the financial support of the respondent and the step-daughter's schooling and advancement may be interrupted at what is a very important stage of her life. Moreover, if the respondent serves his sentence of imprisonment, the step-daughter will inevitably lose the benefit of the order as to confidentiality which was made by the learned trial Judge and which has been made by this Court. If the respondent is sent to prison, the nature of the offences will be bruited abroad. Not only will the family have financial problems, which may affect their residence and schooling, but the step-daughter will suffer personal embarrassment which again may cause her to leave her home and her school. These are very weighty considerations.

There are other matters of a similar nature which influenced the learned trial Judge. The respondent's wife had given evidence that she did not know whether the daughter would come home if her father were imprisoned. The respondent's wife said that she did not know if she could cope with her daughter if the respondent were gaoled and she did not know how the other children would respond. There was also evidence that the respondent's wife at one time had suffered from epilepsy and thereafter had had a breakdown. A welfare report before the learned trial Judge said,

'Her mental state is fragile however, and she has had psychiatric treatment in ... and ... The children's health is good, apart from ... who has a back condition requiring regular physiotherapy and other treatment. Their son ... has had behaviour problems, and received treatment from a child psychiatrist in ...'.

That report said,

'...the prime need in this family is for skilled therapy to deal with the problems listed above.'

A subsequent welfare report stated :

'Mrs. ... presents as a dependent and insecure woman whose pattern has been to lean heavily on her husband. If he is removed from the family, the risk is that she will be completely unable to cope.'

The matters which were put to his Honour were not, however, matters which were of an exceptional nature in a case involving incest with or sexual interference with a young girl. In Feldman on 'Criminal Behaviour : A Psychological Analysis", at p.186, the author states, in relation to paedophiliacs, that, 'The central aspect of the behaviour seems to be the attraction of an adult to sexually immature persons, whether of the same sex or his own sex. Moreover, the attachment is frequently more than a solely sexual one.' Feldman states that studies suggest that paedophiliacs tend to be rather more neurotic and introverted than the population at large. Feldman states at p.185 that paedophiliacs are more likely to be 'living in small towns than rural areas' and 'to be married'. There does not appear to be any feature of the respondent's offences which was unusual for offences of this type.

Moreover, it is not unusual that one or more persons in the family should have psychiatric or personality problems. Offences of this type tend to result from personality deficiencies and to give rise to personality problems. Thus, in the present case, the sexual interference continued over a long period and whether or not the respondent's wife knew anything about the matter, the conduct must have affected the atmosphere in the house and the respondent's attitude to other persons in the family. By way of example, one may take the daughter's statement that 'Mum was normally out of the house at work when these things happened and on some occasions dad would lock the other three kids outside.' Necessarily, if a father engages in unlawful conduct with his daughter over a long period of time, the other members of the family, whether they actually understand what is happening or not, will be affected thereby. The fact that the family will benefit from psychiatric assistance is not a matter which is uncommon in cases where offences of this nature have occurred. As Moffitt P said in R v H at p.64 :

'With respect, it was wrong to regard the respondent's admitted offence as other than a deliberate act of incest without mitigating circumstances except so far as there was some psychological explanation for the respondent's abberation. However, it is difficult to think that incest is committed except by a father with some psychological frustrations such as referred to by the psychiatrist in this case. As already stated the fact is that heavy penalties are provided for by the Crimes Act for incest. The basis of this law is that the father is in a position of trust and the child is given the protection of the law which is intended to act as a sanction against a father giving way to psychological and emotional pressures and abusing his trust to exploit his position of advantage. If a frigid wife is an excuse for incest, it is difficult to see why a widower bringing up his infant daughter should not be similarly excused. On analysis there is little more in this case than explaining one of the situations usually necessary to exist before the crime of incest is committed. If the decision in this case is correct, it would follow that in almost every case no imprisonment should be imposed, despite the fourteen year period prescribed.'

Furthermore, it is an effect though an unfortunate one of the system of criminal justice that a criminal's family though innocent of his crimes may be harmed by the sentence of imprisonment which he is called upon to serve. In R v H, Moffitt P said, at p.66 :

'The question then arises whether, being of the view that there was error at first instance in not imposing a custodial sentence, this Court should intervene to do so now. I have been deeply concerned with the consequence to some members of the family namely the respondent's wife and two sons by now sentencing the respondent to imprisonment. However, this would have been the consequence if the appropriate sentence had been passed originally. As in other cases, regrettably, it is often the family that suffers for a parent's crime and the necessary punishment that must follow.'

The principles to be applied in sentencing were considered at length by Adam and Crockett JJ in R v Williscroft and Others, cited above, and I need not repeat what their Honours had to say. Their Honours laid emphasis upon the necessity to take into account and give due weight to all the circumstances of the particular case. Their Honours said, at p.300,

'...ultimately every sentence imposed represents the sentencing judge's instinctive synthesis of all the various aspects involved in the punitive process.'

Their Honours said, at p.299,

'The purposes of punishment are manifold and each element will assume a different significance not only in different crimes but in the individual commission of each crime.'

Their Honours referred to the remark by Sir Frederick Jordan, CJ, in R v Geddes (1936) 36 SR(NSW) 554 at 555 that '...the only golden rule is that there is no golden rule'. Nevertheless, their Honours referred to 'the moral sense of the community' and to '...knowledge of sentences for the same or similar offences which is derived from personal experience or any other source'. Their Honours said, at p.299,

'We should have thought that in any case where an offender is released upon probation or granted a good behaviour bond for an indictable offence, ex hypothesi, it is implicit that in the circumstances the offence is sufficiently lacking in heinousness as to permit all other considerations to be treated as subsidiary to the prospect of the offender's rehabilitation."

In the present case, the respondent had engaged in sexual interference with his step-daughter from the time she was aged 10 and ultimately had carnal knowledge of her when she was 15. The prior conduct has the relevance attached to it in R v H, cited above, by Street CJ, at p.59, by Moffitt P at pp.61-2 and by Begg J at pp.70-71. See also R v Cooksley, 1982 QR 405. In my opinion, the moral standards of the community would be outraged if, in the absence of special circumstances, the respondent was not required to serve a custodial sentence. Moreover, the Parliament has indicated its view of the offence by stipulating a maximum sentence of fourteen years' imprisonment. This is not an exceptional case and it has no such unusual features or combination of features as justify the suspension of the custodial sentence. In my view, the sentence imposed was so inadequate as to manifest an error which warrants the intervention of an appellate court.

Taking into account the factors which influenced the learned trial Judge and his view of the family situation and of the necessity and of the desirability of restoring the family to normality, the proper sentence is, in my opinion, a sentence of imprisonment for a term of three years, with a non-parole period of twelve months. This sentence is that imposed by the Court of Criminal Appeal in R v H, cited above, and that imposed in R v Fairbairn, against which a Crown appeal was dismissed by the Full Court of the Supreme Court of Queensland on 5 March 1979 (see (1979) 3 Crim.LJ 226). It adopts the view of the learned trial Judge as to an appropriate term of imprisonment and applies to that term an appropriate non-parole period. I would allow the appeal and would impose that sentence.

Mr T. Higgins, who appeared for the respondent, submitted that the appeal should not be allowed because, he said, Mr G. Lalor, counsel for the Crown at the hearing before the learned trial Judge, did not make it clear that the Crown considered a non-custodial sentence to be the only appropriate sentence. Mr Higgins relied upon the remarks of Brennan, Deane and Gallop JJ in Tait v Bartley, cited above, at pp.476-7, and the decision and reasons of the Full Court of the Supreme Court of South Australia in R v Wilton, cited above. However, I have considered the transcript of the proceedings below and am of the opinion that counsel for the Crown sufficiently made clear to the learned trial Judge what were the principles to be applied and, in particular, he cited relevant passages from the judgment in R v H, cited above. In the circumstances, I do not think that this is a case in which the appeal should be dismissed because of the manner in which the proceedings were conducted before the trial Judge.