SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: R v D [2003] QCA 148 PARTIES: R v D (appellant/applicant) FILE NO/S: CA No 207 of 2002 CA No 232 of 2002 DC No 163 of 2002 DIVISION: PROCEEDINGS: ORIGINATING COURT: Court of Appeal Appeal against Conviction Sentence Application District Court at Ipswich DELIVERED ON: 4 April 2003 DELIVERED AT: Brisbane HEARING DATE: 28 March 2003 JUDGES: ORDERS: CATCHWORDS: McPherson and Williams JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made 1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence refused CRIMINAL LAW APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION APPEAL AND NEW TRIAL PARTICULAR GROUNDS UNREASONABLE OR INSUPPORTABLE VERDICT WHERE EVIDENCE CIRCUMSTANTIAL where appellant convicted on one count of rape where prosecution relied on the circumstance of the appellant being the only adult with the child when the injury occurred whether the inference of the appellant s guilt beyond reasonable doubt was the only rational inference open to the jury CRIMINAL LAW JUDGMENT AND PUNISHMENT SENTENCE FACTORS TO BE TAKEN INTO ACCOUNT CIRCUMSTANCES OF OFFENCE RAPE where appellant convicted of raping his four-year-old daughter where appellant sentenced to 14 years imprisonment where appellant showed no remorse where complainant suffered serious physical injuries and severe

2 2 psychological harm where appellant likely to re-offend whether sentence manifestly excessive Criminal Law Amendment Act 1945 (Qld), s 19 Evidence Act 1977 (Qld), s 93A Jones v R (1997) 191 CLR 439, applied M v R (1994) 181 CLR 487, applied R v D [2003] QCA 88; CA No 444 of 2002, 4 March 2003, considered COUNSEL: SOLICITORS: T Carmody SC with K M McGinness for the appellant/applicant L J Clare for the respondent Legal Aid Queensland for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent [1] McPHERSON JA: I agree with the reasons of Atkinson J. The appeal against conviction should be dismissed and with it the application for leave to appeal against sentence. [2] WILLIAMS JA: The relevant facts are fully set out in the reasons for judgment of Atkinson J which I have had the advantage of reading. [3] So far as the appeal against conviction is concerned, the critical evidence, in my view, is that of Dr Gavranich, the paediatric specialist, who examined the complainant when she was taken to the hospital. His evidence (there was no competing evidence) clearly establishes that the injury was sustained by an object which penetrated the complainant's vagina without causing significant injury to the external genitalia. A police search of the home in which the complainant and the appellant resided did not locate any object on which the complainant could have fallen and which would have occasioned an injury of that specific type. The edge of the child's potty was clearly not capable of causing the specific injury. [4] The appellant was the only adult in the house at the time the injury was sustained. In the absence of any evidence pointing to some other cause of the injury, the only rational inference open is that the injury was caused by the appellant. Again, given the nature of the injury, the conclusion is inevitable that it was caused by his penis. [5] For those reasons, and the extended reasons of Atkinson J, the appeal against conviction should be dismissed. [6] It follows from the above that this was a case of rape by a father on his daughter aged nearly five years. Given the lack of remorse, the incestuous nature of the act, and the very severe injury sustained by the complainant (detailed in the reasons of Atkinson J) a sentence of 14 years, carrying as it does a declaration of conviction of a serious violent offence, is not manifestly excessive. [7] I agree with the orders proposed by Atkinson J.

3 3 [8] ATKINSON J: The appellant was convicted on one count of rape on 29 May 2002 after a three day trial in the District Court of Ipswich. He was sentenced on 12 July 2002 to imprisonment for 14 years. He was declared to be convicted of a serious violent offence. Pursuant to s 19 of the Criminal Law Amendment Act he was to report on release from custody to the officer in charge of police his name and address within 48 hours. Thereafter he was to report within 48 hours to the officer in charge of police of any change of address for the following 20 years. 44 days spent in pre-sentence custody was declared to be time already served under the sentence. [9] The appellant was convicted of raping his daughter who was four years old at the time. She turned five on the day after the offence. The prosecution relied on evidence given by the child, both in a videotaped interview to police officers on her fifth birthday, the day after the offence, and statements which she made to her foster carer, Ms G; medical evidence given by Dr Gavranich; and the circumstance of the accused being the only adult in the house at the time the injury occurred. The evidence suggested a strong circumstantial case. [10] The child complainant was interviewed by two police officers at the Ipswich General Hospital the day after she was raped. The police were careful and appropriately non-leading. She told the police that her father brought her to the hospital because the doctor needed to have a look because she was bleeding between her legs. She said she was hurt while she was in her room, her father was there and she was playing with a squeezy ball. Although the interview is very circumlocutory, she said that her father took her underpants off and that it was her father who hurt her down there. That videotape was admitted at the trial as part of the child s evidence-in-chief pursuant to s 93A of the Evidence Act. [11] The appellant resided with his daughter, who was the complainant, his wife, M, who was not the complainant s mother, and their baby son, B. The complainant was born on 22 July On 21 July 2001, at approximately 4.00 pm, M left Ipswich to go to her work in Brisbane. The child complainant and her younger brother remained at home with the appellant looking after them. [12] At 4.17 pm, Ms T, a friend of the appellant and his wife, was contacted on her mobile phone by the appellant. The appellant asked her to come over to the house because the complainant had been hurt and was bleeding from between her legs. Ms T often babysat the children. [13] About three minutes later, Ms T arrived at the appellant s home. The appellant took her into a bedroom where the complainant was lying on her back on the double bed on an emerald green towel. She had a shirt on but nothing else. She appeared to be bleeding between her legs and the appellant told Ms T they should take the child straight to the hospital. Ms T asked the appellant what had happened and he said he didn t know, he had heard her scream and found the complainant bleeding. [14] The appellant picked the complainant up off the bed with the green towel around her and Ms T got another towel and placed it over the complainant. They collected the baby and went to the hospital. Ms T drove the appellant, the complainant and the baby to the hospital. It took them about five minutes and they arrived at the hospital at about 4.30 pm. Ms T gave evidence that she sat with the complainant in the hospital while the appellant was outside having a cigarette and the child told Ms

4 4 T on two separate occasions that she had hurt herself because she was playing with the ball and she fell. [15] At about 7.30 pm, Ms T and the appellant left the hospital and returned to the appellant s house to feed the baby. The appellant got changed because he said he was cold, tried to ring his wife and had a cup of coffee with Ms T. They then dropped the baby off at a friend s house and returned to the hospital about 8 pm where they sat with the complainant. She was then taken to the operating theatre for an operation to repair her injuries. [16] Later that evening at about 10 pm, the police attended the appellant s home to search it. They did not locate anything that appeared to have any blood on it, although no blood detection tests were carried out. In particular, there was a potty in the child s room which is shown on photographs taken. The police officer said they found no blood on that potty, or on any balls which they found in the complainant s room. [17] Other evidence of the child s account of events was given by Ms G who, with her husband, became the foster parents to the child and her baby brother after the child was released from hospital on 24 July On 27 July 2001, the child volunteered some information to Ms G which Ms G recorded immediately afterwards on a piece of paper. The child said that the appellant had put a towel between her legs and then taken her to the hospital. She told Ms G that the squeezy ball had hurt her. Ms G asked her who had the squeezy ball to which the child replied Daddy did. No B did. [18] Ms G also made notes of a conversation on 11 August 2001 in which the child said to her Daddy was on my bed at the hospital he came to see me. I couldn t play Daddy hurt me on my bed I don t like daddy hurting me I don t want to see daddy any more. [19] The child complainant gave oral evidence by video link at the trial where she referred to her father throughout as B s dad. She said she was at the hospital because she was hurt by B s dad. She didn t remember where she got hurt or how B s dad had hurt her and that he was out sitting in the lounge at the time she was hurt. [20] Her evidence at trial was given on 27 May 2002, just over 10 months after the events in question. She was still only five years old. Under cross-examination, she said she was at the hospital because the appellant had hurt her but she didn t know how. She said the appellant had been working on his computer when he came and picked her up and that she was hurting when he came and got her. She said she got hurt on her bed but she doesn t know what she was doing on the bed. She agreed that she fell onto her potty and off the squeezy ball. She then agreed that the appellant did not hurt her. This inconsistency in her evidence would not have entitled the jury to convict the appellant unless they were satisfied that the medical evidence established beyond reasonable doubt that there was no rational explanation for the child s injury other than that the child was raped. It was properly conceded on the appeal that if such an offence had been committed, then it could only have been committed by the appellant.

5 5 [21] The medical evidence was given by Dr John Gavranich, a paediatric specialist who examined her when she was brought to the hospital. He noted that she had a tear from the fourchette extending to the apex of the vagina about four centimetres in length. The injury extended internally. There appeared to be no external damage between the fourchette and the anus. There was no external bruising to the vulva but there was damage to the anal sphincter caused by the internal tearing. The doctor described the injury as a penetrating injury because there was no trauma to be discerned to the external genitalia. It was an internal tear. There was a lot of blood around it and the edges were ragged. He said in order to create that injury there would have to be a significant force of a penetrating nature. He said that something would have had to penetrate the child s vaginal opening. [22] He distinguished this injury from what might be termed an astride injury. In those situations, there is significant bruising to the external genitalia. He was asked about the potty and said it would be very hard to imagine that she could have had injured herself on the potty, and if she had, you would expect blood to be on it. It was put to him in cross-examination that the injury could have occurred from a slip from a ball on to the front part of the potty. The doctor disagreed that such a fall could have caused this type of injury. After extensive cross-examination on the point, the doctor said that in the absence of bruising it would be highly improbable that the mechanism of injury was striking the front of the potty. [23] Apart from what the appellant told Ms T, there is no other version from the appellant either in a police interview or by way of evidence at the trial. [24] The defence now seeks to rely on a victim impact statement given by the child s foster carer as to the subsequent bruising seen on the complainant to throw some doubt on the doctor s evidence, but that material was not before the jury. There was no formal application by the defence to lead fresh evidence and so it is irrelevant to the determination of the appeal on conviction which posed the question of whether the jury was entitled to be satisfied beyond reasonable doubt of the guilt of the appellant on the evidence before them. Even if it had been considered relevant, it could not in my view have undermined the medical conclusion as to how the injury to the child must have been inflicted. It was unnecessary also to consider forensic evidence obtained by the Crown which tended to inculpate the accused, as it was irrelevant to the question to be determined on appeal in this case. [25] The appellant submits that the verdict is unsafe and unsatisfactory having regard to the whole of the evidence. The test to be applied is whether it was open to the jury to be satisfied beyond a reasonable doubt of the guilt of the accused: see M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439. [26] In a circumstantial case such as this guilt cannot be inferred beyond reasonable doubt, as the learned trial judge instructed the jury, unless it is the only rational inference open. [27] But in this case, the medical evidence effectively excluded a fall or any other innocent cause. The objective evidence was that the child was injured by the forceful penetration of a pointed object into the vaginal opening. Although the child was prepared to accept that she was hurt by the potty on cross-examination, she was still only five years old and she was cross-examined almost a year after the events in question. It was appropriate for the jury to rely upon what the child said close to the

6 6 events in question together with the objective medical evidence and the fact that the appellant was the only adult in the house who could have committed the offence. In such a case, the guilt of the appellant was the only rational inference open to the jury. [28] I would dismiss the appeal against conviction. [29] The appellant was sentenced to 14 years imprisonment and submits that this term of imprisonment was manifestly excessive. This was, however, an horrific offence being rape by the appellant of his daughter who was four years old at the time of the offence and spent her fifth birthday in hospital as a result of the injury which that rape had caused her. [30] The victim impact statement from her foster carer showed the seriousness of the physical and psychological injury the child had suffered. After three days in hospital where her genitals were surgically repaired, she was released to the care of the foster carer who had to give her salt baths twice a day. The child had to wear a sanitary pad to stop leakage of blood and fluid. She complained of being sore and had to be restricted in her play for a few weeks because of fear of damaging the repair and re-opening the stitches. She had an infection around the sutures. She was tender for at least a month, the period it took for the last stitch to come out. She developed a lot of bruising. Although she is no longer in pain, the foster carer says the injury is so extensive that there is concern about long term problems and the physical appearance of the injury area. She may have to have some further surgery or cosmetic surgery later in life. [31] The psychological effects have also been severe. She is shy and has been very apprehensive about men. She has repeatedly soiled herself when under stress and only had to know, until recently, that her baby brother was visiting either of her parents and she would soil herself. She has soiled herself under stressful conditions at school and particularly on one day when a replacement teacher in her grade was a man. She apparently becomes very stressed when she leaves her comfort zone which is home or school. She was obviously stressed by having to come to court and give evidence because she soiled herself on the day of the committal hearing and constantly after giving evidence. She is seeing a counsellor, initially once a fortnight and now once a month. As the learned trial judge said, it is clear that this incident has had a significant effect on a little girl who was then still only five years of age. [32] The judge quite properly remarked on the fact that the appellant had shown no remorse for the offence. The pre-sentence report which the judge obtained referred to the fact that of particular significance during the interview with the appellant was a complete emotionless presence and detachment of the appellant from the subject matter. [33] A psychiatric report was prepared by Dr Kar. Referring to the appellant s family and criminal history, the childhood sexual abuse from which the appellant himself suffered, his occupational, marital and social history, the psychiatrist was of the view that he had behaviour problems suggestive of juvenile conduct disorder and adult anti-social personality disorder. He was also of the view that the appellant had abnormal sexual drive and values. As to the nature of the offence, Dr Kar referred

7 7 to this offence as serious and harmful sexual abuse of a vulnerable girl of only five 1 years to whom he had a duty of care. The offence was incestuous as well. It showed, in the doctor s view, that there was a strong and pathological sexual drive in the appellant that would overcome the normal boundaries of social and sexual behaviour. As the appellant had only been convicted on one count of rape, the learned sentencing judge did not take into account the doctor s opinion that this was unlikely to have been an isolated incident. [34] The learned sentencing judge also took into account his previous criminal history which included an offence in June 1997 for wilfully exposing a child under the age of 16 to an indecent photograph. The complainant on that occasion was a 13 year old girl who was a visitor to his home. The appellant sent her a photo of his erect penis with a note suggesting that he wanted to have sex with her. When confronted with that by the police, he denied any knowledge of it, and it was only after a handwriting comparison was done that he was identified and he entered a plea. In his interview with Corrective Services officers for the pre-sentence report and with the psychiatrist, he attempted to minimize his responsibility for that offence. [35] The psychiatrist was of the view that there was a very high probability of reoffending. Dr Kar was of the view the appellant would need close and intensive monitoring for the rest of his adult and active life if he resides in the community. Dr Kar said that future offences are likely to be opportunistic and could also result in serious harm to the victim. He had shown no remorse or concern of the harm he has done. [36] The only factor which could be taken into account in his favour was that he took the child to the hospital very soon after he committed the offence. [37] The sentence was long, but the offence was very serious with a number of aggravating factors. It is difficult to find a comparable case in recent times. I have had particular regard to R v D [2003] QCA 88 2 where a sentence of 10 years imprisonment was recently imposed by this court after allowing an appeal against a sentence of imprisonment of 12 years. In that case, the appellant had pleaded guilty to one count of deprivation of liberty and one count of rape. The appellant was aged 40 and had a lengthy criminal history but no previous convictions for sexual offences. The complainant in that case was a five year old child. The appellant, who was a neighbour, had taken the complainant child from her back yard. The child s mother found them a short time later in the appellant s house. The child was naked on the bed with the appellant touching her vaginal area with his fingers. A Government Medical Officer found that the child s hymen was bruised and haemorrhage was evident. The injury was consistent with digital but not penile penetration. [38] There are a number of factors that make the present case even more serious. There was no plea of guilty with the consequent ameliorating effect on sentence. In addition, this child was raped by her natural father in whose sole care she was at the time. This was an abuse of his position and a complete betrayal of trust from one for whom she ought to have been able to look for protection. As a result of these offences, she has gone into foster care. She suffered serious physical injuries 1 2 She was, in fact, a day short of her fifth birthday when the offence was committed. CA No 444 of 2002, 4 March 2003.

8 8 consistent with forceful penile penetration. These injuries are likely to have a long term effect and may require cosmetic surgery. The psychological impact has been severe. [39] These additional factors suggest that a sentence well in excess of the ten years imprisonment imposed in R v D was an appropriate sentence. In those circumstances, the sentence of 14 years imprisonment cannot be said to be excessive. I would refuse the application for leave to appeal against sentence. Orders 1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence refused.