R v BDU
[2022] QCA 174
•13 September 2022
SUPREME COURT OF QUEENSLAND
CITATION:
R v BDU [2022] QCA 174
PARTIES:
R
v
BDU
(applicant)FILE NO/S:
CA No 150 of 2021
DC No 344 of 2020DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Townsville – Date of Sentence: 24 June 2021 (Coker DCJ)
DELIVERED ON:
13 September 2022
DELIVERED AT:
Brisbane
HEARING DATE:
17 August 2022
JUDGES:
Bowskill CJ and Flanagan JA and Wilson J
ORDER:
The application for leave to appeal against sentence refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to fourteen years imprisonment on a count of maintaining a sexual relationship with a child and lesser concurrent terms for related offences of a sexual nature after conviction by a jury after a trial – where the maintaining period was approximately three years – where the offending involved the applicant’s biological daughter and a significant breach of trust – where the complainant was aged between four and around eight years of age at the time of the offending – where the maintaining offence involved penile-vaginal rape – where the offending was described as serious, horrendous and of an abhorrent nature – where the applicant referred to the factors set out in R v SAG [2004] QCA 286 – where the applicant submits that the offending in the authorities where a similar sentence was imposed was more serious – where the applicant submits that to justify a sentence of fourteen years there is usually an additional factor not present in this case – where the applicant submits the appropriate sentence range is ten to twelve years – whether the sentence was manifestly excessive
R v AP[2003] QCA 445, considered
R v BAY (2005) 157 A Crim R 309; [2005] QCA 427, considered
R v BCA[2011] QCA 278, considered
R v CBO[2016] QCA 24, considered
R v HAA[2006] QCA 55, considered
R v HBT (2018) 274 A Crim R 569; [2018] QCA 227, considered
R v S[1993] QCA 367, considered
R v SAG (2004) 147 A Crim R 301; [2004] QCA 286, considered
R v TS [2009] 2 Qd R 276; [2008] QCA 370, consideredCOUNSEL:
J B Godbolt for the applicant
C W Wallis for the respondentSOLICITORS:
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
BOWSKILL CJ: I agree with Wilson J.
FLANAGAN JA: I agree with Wilson J.
WILSON J: After a three day trial in the District Court at Townsville, the applicant was convicted by a jury of:
(a)one count of maintaining a sexual relationship with a child (“the maintaining offence”);
(b)eight counts of rape; and
(c)one count of indecent treatment of a child, under the age of twelve, who is a living decedent.
Fourteen years imprisonment was imposed in relation to the maintaining offence and lesser concurrent terms were imposed for the other offences. Pursuant to s 159A of the Penalties and Sentences Act 1992 (“the PSA”), the sentencing judge stated that the applicant was held in pre-sentence custody for 21 days between 3 June 2021 and 23 June 2021 and declared that time as time already served under the sentence.
The applicant seeks leave to appeal the fourteen years imprisonment imposed for the maintaining offence on the basis that it is manifestly excessive by reference to the comparable sentencing decisions. The applicant takes no issue with the lesser concurrent sentences that were imposed on the other counts.
The offending
The complainant in this case was the applicant’s biological daughter. He sexually abused her for approximately three years.[1] At the time of the offending, the complainant was between four and around eight years old. The first incident of penile-vaginal rape took place in 2013, when the complainant was either four or five.
[1]The indictment spanned a three year period from 2013 to 2015, although it cannot be ascertained precisely when in 2013 the abuse commenced, or when the penile-vaginal rape first occurred. As counsel for the applicant acknowledged at the Court of Appeal hearing, it makes little difference whether the period was two and a half years or three years.
The offending was brazen and persistent. It involved the applicant:
(a)inserting his penis into the complainant’s vagina;[2]
(b)digitally penetrating her vagina;[3]
(c)inserting his penis into her mouth;[4] and
(d)touching her vagina underneath her clothing.[5]
[2]Counts 4 and 9.
[3]Counts 5 and 6.
[4]Counts 2, 3, 7 and 10.
[5]Count 8.
In relation to the maintaining offence, it was accepted by the jury that the offending spanned a period of time which involved multiple regular and continued offences against the complainant child.
The applicant applied golden syrup or honey to his penis to procure the complainant to perform fellatio on him. He would apply more syrup to his penis to encourage her to continue to perform oral sex. The oral penetration escalated to digital and penile penetration.
Commencing in around March 2014, every two weeks or so, the complainant would visit the applicant’s mother’s unit, where the applicant was living. Each time she was at the unit, the applicant would offend against her in a similar way; he would rape her while her older brother was present but oblivious or was in another room. These visits eventually became irregular until they stopped in December 2015.
The complainant gave evidence that the first time the applicant penetrated her vagina with his penis, it “hurt a bit”. However, the complainant stated that as the frequency of penetration increased, she “got used to it”. Such was the frequency of the abuse that the complainant gave evidence that, at the young age of eight, she started to get a “feeling in [her] vagina that [she] needed to have sex.”
The applicant coerced his daughter to remain silent. The complainant gave evidence that every time the applicant offended against her, he told her not to say anything or he would do something. The complainant’s evidence was that she was not sure what he said specifically, but she thought he “kinda threatened [her].”
A victim impact statement written by the complainant’s grandmother was tendered at the sentence. It sets out the profound physical and psychological impact the offending has had on the complainant.
The applicant’s antecedents
The applicant was between 27 and 30 years old at the time of the offending. He was 36 years old at the time of sentencing.
The applicant has a criminal history and relevantly, at the time of the offending, he was subject to a suspended sentence of twelve months imprisonment, suspended for two years, for entering a dwelling with intent.[6] At the time of sentencing, the applicant had not previously been dealt with for offences of a sexual nature.
[6]On 16 August 2012, the applicant was sentenced in the District Court at Townsville to twelve months imprisonment, suspended for two years, for entering a dwelling with intent by break at night (on 5 November 2011). This sentence was breached by committing minor drug offences on 20 February 2014, which was dealt with on 27 June 2014 by taking no further action.
The applicant had a troubled and traumatic childhood. He was placed into foster care when he was about nine years old, where he was physically and sexually abused. From the age of fourteen on, he lived on the streets and fended for himself.
The applicant has three children from two relationships. He became a father at a very young age, and by the time he was nineteen, he had two children. The complainant is his youngest child. His relationship with her mother was volatile, with drug use, particularly of methylamphetamine, a feature of the relationship.
Although the applicant had a very limited education (he did not complete any high school education), he had a very good employment history and had been employed in several jobs from the age of fourteen on.
His counsel told the learned sentencing judge that the applicant had experienced mental health issues, namely ADHD, from an early age and in 2016, a psychiatrist diagnosed him with schizophrenic traits. I note that after the jury delivered its verdict, the sentence was adjourned so the applicant could provide instructions as to whether a psychological report would be prepared; this was not pursued. Accordingly, there was no evidence to support these submissions.
Submissions at the sentence
For the most serious offence of maintaining a sexual relationship with a child, the Crown submitted that the appropriate range for the sentence was between thirteen and fifteen years imprisonment.
In support, the Crown referred to R vSAG[7] (“SAG”) and stated that the matters which warranted such a lengthy period of imprisonment in this case were:
(a)the complainant’s incredibly young age at the time of the offending;
(b)the gross breach of trust by a biological parent;
(c)that the offending involved penile-vaginal rapes;
(d)that there was a regularity and frequency of offending, in the order of every few weeks;
(e)that there was an element of coercion due to the use of the honey or golden syrup;
(f)the statements made during the offending by the applicant to the complainant to not say anything; and
(g)that it involved brazen offending, sometimes in the presence of others, and involved multiple sexual acts.
[7][2004] QCA 286 where, at [19], Jerrard JA set out the significant factors which increase a sentence for an offence of maintaining a sexual relationship with a child.
The Crown submitted that physical violence had not been necessary to facilitate the applicant’s offending. The Crown noted that given the young age of the complainant and the level of trust a father is held in by his daughter, it was perhaps unnecessary to engage in such violence, particularly given the child had been groomed from a very young age. The Crown submitted that the absence of physical violence, whilst a relevant circumstance, was not a matter of mitigation.
The Crown noted that there was not a child born of the relationship due to the complainant’s extreme youth.
In support of the proposed range of thirteen to fifteen years imprisonment, the Crown referred to R v S[8] (“S”), R v HAA[9] (“HAA”) and R v CBO[10] (“CBO”). However, the Crown acknowledged that these authorities were not truly comparable given that none of them dealt with the combination of circumstances in the present case, being:
(a)that the conviction occurred after trial;
(b)the young age of the complainant;
(c)the extended duration of the maintaining period; and
(d)that the applicant was the complainant’s biological parent.
[8][1993] QCA 367.
[9][2006] QCA 55.
[10][2016] QCA 24.
The Crown submitted that, in the circumstances of this case, a sentence of fifteen years imprisonment could comfortably be imposed to reflect the applicant’s offending.
The applicant’s counsel set out the applicant’s antecedents and submitted that a sentence of twelve years imprisonment was appropriate in the circumstances. To support such a sentence, the applicant’s counsel distinguished the circumstances of the authorities relied upon by the Crown and referred to the additional case of R v HBT[11] (“HBT”).
[11][2018] QCA 227.
The sentencing remarks
The learned sentencing judge had regard to the following features:
(a)The serious, horrendous and abhorrent nature of the offending;
(b)The psychological and physical impact of the offending on the complainant, resulting in her normalisation of the offending such that she began to desire sex;
(c)The applicant’s age and the age disparity with the complainant;
(d)The gross breach of trust;
(e)The applicant’s antecedents including:
(i)His limited education (having only attended school to a Year 7 level);
(ii)His disadvantaged youth, where he had been exposed to physical and sexual abuse;
(iii)His “strong employment history” which commenced at the age of fourteen, which indicated he had positive prospects of rehabilitation;
(iv)His having become a parent at fifteen years old and having three children, including the complainant;
(v)His criminal history, albeit that it was not relevant or comparable to the offending;
(vi)His lack of support from when he was fourteen years old, which resulted in virtual homelessness; and
(vii)His early diagnosis of ADHD and provisional diagnosis of having “traits indicative of schizophrenia”;
(f)The need for both personal and general deterrence;
(g)That there was a degree of mental manipulation involved in the offending;
(h)That the applicant had demonstrated no remorse and the matter proceeded as a trial; and
(i)The need to denounce the conduct and, equally, protect society from like conduct.
The learned sentencing judge noted that various counts of rape involved the applicant manipulating the complainant, a little girl, to the extent that she began to normalise the offending against her. In relation to the complainant wanting to have sex because she enjoyed and felt a need for it, the learned sentencing judge stated:
“To have a young child expressing sentiments of that nature is the greatest of the breaches that anyone could possibly perpetrate upon a child. And to consider that she was only some four years of age at the time that the offending started. And, of course, that she was your own flesh and blood gives rise to very real concerns in relation to the behaviour and the brazen character of it.”
In relation to the factors set out in SAG, the learned sentencing judge stated:
“Perhaps as a starting point, that particular case where the lead judgment was provided by Justice of Appeal Jerrard, as he then was, set out the various circumstances that may be taken into consideration with regard to offending of this nature, particularly maintaining a sexual relationship. There, at paragraph 19 or 20, he set out the factors that might be seen as significant. A very great number of them are relevant in relation to the determination of what penalty should be imposed here. His Honour noted that the young age of the child when the relationship first began, and the maintaining commenced, is a significant factor. (The complainant) was four. The lengthy period during which that relationship continued, it was for a period of three years.
If a penile rape occurred during the course of that relationship, it did. Whether there was unlawful carnal knowledge of the child, it occurred. If so, whether it was over a prolonged period, and of course, that also occurred. One factor, fortunately not relevant here, but as explained quite clearly and understandably by Ms Sheppard arising as a result of a very young age of (the complainant) was that there was no child born of the offending. Significant also, as I have already touched upon, is the fact that there was a parental relationship relevant in relation to the matter, and also significant is whether there was actual physical violence used against the child. It does not appear that that was the case, but that perhaps is understandable, again, when one considers that (the complainant) was only four at the time that you were her father, a person in whom she no doubt vested her trust and reliance that you would not harm her or act inappropriately such that over time, what had occurred to her became normalised and in fact something sought out by her, and of course, that of itself is such a gross breach of trust it is hard to fathom.
There is one other factor worthy of consideration, and that is a positive here, in that it was offending against only one child, but of course I note that there is only one child of the relationship, (the complainant), and it was offending against her.”
Ultimately, the learned sentencing judge sentenced the applicant to fourteen years imprisonment for the maintaining offence. In doing so, he came to the view that the offending was of an extremely serious nature, noting the young age of the complainant, the prolonged period of abuse, the regularity and continuing nature of that offending, the brazen character of it, and the significant effects it has had on the complainant.
The applicant has no complaint as to how the learned sentencing judge characterised the offending. The applicant contends that the sentence is manifestly excessive by reference to comparable sentencing decisions.
The applicant’s submissions on this application
The applicant acknowledges that his offending was undoubtedly a serious example of a maintaining offence. It involved the aggravating factors of the complainant’s young age when the abuse commenced, the father-daughter relationship, the regularity of the abuse and the fact that the offending included penile-vaginal rape.
Nevertheless, the applicant submits that an analysis of the authorities demonstrates that in the few cases involving a single complainant where sentences approached or exceeded the applicant’s sentence, the offending was more serious than the offending in this case.
The applicant submits that the authorities demonstrate that to justify a sentence of fourteen years imprisonment, there is usually an additional feature which is not present in this case, such as a longer period of offending, the existence of relevant previous convictions, threatening or manipulative behaviour or the nature of the offending being worse than that involved in the present case.
Accordingly, the applicant submits that the authorities demonstrate that, in the circumstances of this case, the appropriate sentencing range is between ten and twelve years imprisonment.
The authorities referred to by the applicant
The most recent authority referred to by the applicant is the 2018 decision of HBT, where a sentence of fifteen years was imposed after a trial for a maintaining offence, along with lesser concurrent terms for associated offending.
The complainant was the applicant’s biological son; the offending therefore involved a significant breach of trust. The complainant was between ten and a half and seventeen years old during the maintaining period. The offending involved mutual masturbation, oral sex and anal intercourse. There was no particular violence, but there was an aspect of mental manipulation. The applicant sought to justify his actions through prayer after each occasion of offending, indicating to the complainant that he was a “sinner”.
The applicant had a criminal history which involved three separate instances of sexual offending against three separate complainants, including a family member. He had been sentenced to suspended terms of imprisonment for those offences. Some of his offending against the complainant occurred while he was subject to one of those suspended sentences.
The applicant demonstrated no remorse, evident from the way the trial was litigated.
Morrison JA undertook a comprehensive analysis of the authorities referred to in HBT. Indeed, most of the authorities referred to by the applicant in the present case were considered. Morrison JA ultimately concluded that:[12]
“Whilst a lesser sentence could have been imposed, I do not consider that the sentence of 15 years’ imprisonment can be shown to be manifestly excessive.”
[12]R v HBT [2018] QCA 227, [101].
HBT involved an offender with a much more serious and relevant criminal history, and the maintaining period was longer than that in this matter. However, as Morison JA observed:[13]
“Whilst the length of the period of maintaining is a significant consideration, the importance of other aggravating and mitigating factors, when taken into account in an integrated approach, must not be overlooked, as outlined in R v SAG…”
[13]R v HBT [2018] QCA 227, [83].
In the present case, the applicant engaged in penile-vaginal rape with a much younger complainant than the complainant in HBT.
In CBO, the applicant was found guilty after a trial of one count of maintaining, four counts of rape and two counts of indecent treatment with a circumstance of aggravation. The Court of Appeal ultimately imposed an effective sentence of thirteen years imprisonment.
The maintaining offence occurred during two distinct (albeit continuous) periods. The first period lasted approximately four and a half years, from when the complainant was eight years old to when she was twelve or thirteen. In that period, at least once a week, the applicant would kiss, fondle, and digitally penetrate the complainant’s vagina. The second period involved more serious offending. It commenced when the complainant was about twelve or thirteen years old and endured for three or four years, until the complainant turned sixteen. The complainant gave evidence that, when she began Year 8 at school, the applicant’s sexual offending escalated to penile-vaginal rape. She also stated that the offending involved regular and frequent sexual intercourse which occurred at least weekly.
The offender was in a relationship with the mother of the complainant but was not her biological parent. The applicant did not cooperate or demonstrate any remorse. He had no relevant criminal history. He was aged between 39 and 48 at the time of the offending.
Error was found in the sentencing process, as the sentencing judge had failed to consider the effect of one of the offences occurring after the introduction of Pt 9A of the PSA. It was therefore necessary to sentence the applicant afresh on appeal.
The Court of Appeal imposed cumulative sentences totalling thirteen years imprisonment. The applicant was eligible for parole after he served half of the thirteen years imprisonment.
Whilst the maintaining period in CBO was much longer than in the present case, the complainant in this case was significantly younger when acts of penile-vaginal rape were committed. Further, CBO did not involve the sexual abuse being perpetrated by the complainant’s biological parent.
In R v BCA[14] (“BCA”), the applicant was convicted after trial of one count of maintaining with the circumstances of aggravation that during the course of the relationship the applicant unlawfully sodomised and indecently dealt with the complainant, who was the applicant’s lineal descendent and under his care and other associated offending. The applicant was ultimately sentenced to ten years imprisonment.
[14][2011] QCA 278.
As the sentencing judge erred by not determining the duration of the maintaining period, the Court of Appeal undertook the exceptional course of making the necessary findings of fact.
The applicant began sexually abusing the complainant when she was about seven years old. The offending continued for a period of eight years, until the complainant was fifteen. The conduct involved numerous acts of sodomy and simultaneous indecent dealing, including digital penetration of the complainant’s vagina. The complainant suffered devastating consequences, including physical pain and faecal incontinence during the maintaining period.
The applicant was the biological father of the complainant and, for part of the maintaining period, he was effectively her sole carer. Having procured the complainant’s acquiescence in the unlawful acts by abusing her trust from when she was just seven years old, the applicant persisted in his offending despite the complainant’s objections and attempt to escape towards the end of the maintaining period. The applicant showed no indications of remorse, and he was convicted by a jury after a trial.
Fraser JA concluded that the applicant’s sentence should be no less severe than ten years imprisonment.
In HBT, Morrison JA noted that he considered BCA to be an anomalous outcome:
“[98]… The respondent in that case referred to two cases, each an Attorney-General’s appeal, and each in the range of nine to 10 years… That fact, plus the Court’s concern that a sentence of 10 years would require that the offender serve 80 per cent of the term, were evident reasons as to why only 10 years was imposed.
[99]Given the sentences imposed in AP and CBO, and particularly what was said in SAG and BBM, I consider BCA to be an anomalous outcome. In any event the constrained set of comparable cases to which the Court was there referred to make it of no utility in this case.”
In R v TS[15] (“TS”), the applicant was the complainant’s biological father. He pleaded guilty to a maintaining offence as well as eleven other offences. The maintaining offence involved acts of penile-vaginal rape, attempted rape, sodomy and indecent treatment. The maintaining period was six years, during which the complainant was between ten and sixteen years old. The applicant was ultimately sentenced to a period of twelve years imprisonment for the more serious offences, including the maintaining offence.
[15][2009] 2 Qd R 276.
The applicant had been sexually interfering with the child since she was three years old, prior to the family’s move to Queensland from Victoria. He could not be tried or sentenced in Queensland for that offending.
The applicant was sentenced on the basis that he committed sexual offences against the complainant at every available opportunity during the six years of the maintaining period, subject to the qualification that as the complainant grew older, she began to resist his advances and the offending became less regular. The applicant was sentenced on the basis that the complainant was never a willing participant. It was accepted that it was an aggravating feature that the applicant had manipulated the complainant by providing her with rewards and other incentives as a way of coercing her cooperation and by threatening to withhold them if she was not cooperative.
The applicant’s guilty plea had to be given adequate recognition because it resulted in the complainant not having to go through the ordeal of giving evidence. The Court of Appeal noted that, because of the serious violent offence regime, this could only be realistically achieved by a reduction of the sentence that would otherwise have been appropriate in the absence of a timely plea of guilty.
The applicant was initially sentenced to 20 years imprisonment. On appeal, that was set aside on the basis that the sentencing court was not entitled to take into account, except for limited purposes, the offences which had occurred in Victoria before the family moved to Queensland. A sentence of twelve years imprisonment was substituted for the more serious offences including the maintaining offence.
The length of the offending conduct in TS was longer. However, TS involved a plea of guilty and a complainant who was older than the complainant in the present case.
In HAA, the applicant was convicted by a jury of a maintaining offence, as well as one count of rape and fifteen counts of unlawful carnal knowledge. He was sentenced to twelve years imprisonment for the maintaining offence, which was upheld by the Court of Appeal.
The complainant was the granddaughter of the offender’s de facto partner. Although the relationship was not parental, it was a protective relationship. The complainant's father had entrusted the after-school care of his daughter to the applicant. The maintaining period spanned four years, during which the complainant was probably aged between nine and thirteen years old. Regular sexual intercourse took place over at least the last two years of the maintaining period, as well as one instance of oral rape. There was evidence of threats involving emotional manipulation and blackmail. The applicant had a relevant criminal history, with one very dated conviction for sexual offences (which occurred more than 30 years prior to the sentencing date) and one offence from two years before the start of the maintaining period, where he received a suspended sentence for indecent dealing with a child.
The Court of Appeal did not consider the sentence of twelve years imprisonment manifestly excessive.
Relevantly, while the applicant in HAA occupied a position of protection in relation to the complainant, he was not biologically related to her. Further, the offending in HAA involved unlawful carnal knowledge and oral rape. This case involves regular penile-vaginal rape perpetrated against a complainant who was much younger than the complainant in HAA.
In R vBAY[16] (“BAY”), the applicant was convicted on a plea of guilty of a maintaining offence with the circumstances of aggravation that he had unlawful carnal knowledge of the complainant, who was his daughter, that he indecently dealt with her, and that she was under his care. He was also convicted of 36 related sexual offences. He was ultimately sentenced to ten years imprisonment for the maintaining offence.
[16](2005) 157 A Crim R 309.
The maintaining period was seven years. The complainant was seven when he began offending against her. She was not his biological daughter, but he was married to her mother for thirteen years and acted as her father.
The abuse took many forms, including digital penetration of the complainant’s vagina and the anus, the applicant performing oral sex on the complainant and requiring her to perform oral sex on him, requiring her to masturbate him and occasions of non-consensual sexual intercourse. There were significant elements of coercion, with physical violence and threats of further physical violence, including that if she left, he would turn his sexual attention to her younger sisters or commit suicide.
The applicant initially pleaded not guilty before a jury but, following a voir dire which determined that his interviews with police were admissible, he pleaded guilty. This was considered a mitigatory factor, as were the applicant’s remorse, his admissions to the police and his co-operation with the administration of justice by sparing the complainant from any contested hearing.
The applicant was originally sentenced to twelve years imprisonment which was reduced by the Court of Appeal to ten years imprisonment. This was done to properly recognise the applicant’s plea of guilty. The Court of Appeal noted that without the plea of guilty, the appropriate sentence would have been approximately twelve years imprisonment.
Once again, the complainant in BAY was not as young as the complainant in the present case and there was not the same regular penile-vaginal rape.
In R v AP[17] (“AP”), the applicant was convicted by a jury of one maintaining offence with a circumstance of aggravation, one count of indecent dealing with a child with a circumstance of aggravation, one count of attempted rape and one count of rape. The applicant was ultimately sentenced to fourteen years imprisonment.
[17][2003] QCA 445.
The applicant was the complainant’s foster father and the only father figure she knew. The maintaining period was nine years, from when the complainant was seven years old until she was sixteen. The evidence established a pattern of escalating sexual offending, including an attempt at penile-vaginal rape when the complainant was just ten years old, the taking of her virginity by rape, serial rape, her impregnation, the birth of a child and the development of a consensual sexual relationship after the birth of the child.
The applicant initially denied all of the allegations. It was only when DNA testing established his paternity of the complainant’s child that he admitted to an isolated act of intercourse, which he claimed was initiated by the complainant. He showed no remorse. The applicant had a limited criminal history, with no convictions for sexual offending. He was on probation at the time he committed two of the offences. As to be expected, the offending had a devastating impact on the complainant.
The Court of Appeal reduced the applicant’s sentence from fifteen to fourteen years imprisonment to recognise that the sentencing judge took into account a period of offending beyond the nine years for which he was convicted. As the offences were committed prior to the introduction of Part 9A of the PSA, he was not subject to a serious violent offence declaration.
In comparison to the present case, AP has the additional aggravating features of a longer maintaining period where the complainant was impregnated by the applicant and bore his child. However, the complainant in AP was not as young as the complainant in the present case, and the applicant was not the complainant’s biological parent.
It is noted that AP was decided before SAG, which sets out the significant factors which may increase a sentence for maintaining a sexual relationship.
S is an old case where a 37 year old applicant pleaded guilty to one count of maintaining, where in the course of the relationship he had unlawful carnal knowledge by anal intercourse of a child under the age of twelve and committed rape. He was initially sentenced to 20 years imprisonment, which was ultimately reduced to fifteen years imprisonment on appeal.
The complainant was the applicant’s biological daughter. The maintaining period was four years, commencing when the complainant was four years old. The abuse took a number of forms, including the applicant procuring the complainant to masturbate him, the performance of oral sex by each of them on the other, digital penetration of the anus and vagina, attempted penile-vaginal and penile-anal rape and at least one act of sodomy and one act of rape.
The applicant compelled the complainant to perform oral sex on him and swallow his ejaculate by paying her money. The complainant eventually sought to perform oral sex on him in order to be paid money, and sometimes in order to avoid the pain involved with him interfering with her vagina. The abuse only ceased when the applicant’s wife left him, taking the complainant and their other children with her. The complainant was, obviously, severely impacted by the offending and experienced significant psychological effects. The applicant made full admissions to the offending and pleaded guilty.
The Court of Appeal reduced the sentence, to accord with previous authority, from twenty years to fifteen years. S was decided before the serious violent offence declaration formed part of the law. This meant that the applicant would only have to serve seven and a half years before becoming eligible for parole.
Of note, as reprehensible as the applicant’s acts were in S, the offending did not involve the repeated penile-vaginal rape which occurred in the present case. Additionally, the applicant in S pleaded guilty and made full admissions to his conduct.
Discussion
In my view, upon review of the authorities, the sentence of fourteen years for the maintaining offence was not manifestly excessive.
As the applicant submits, the authorities referred to have some aggravating factors that are not present in this case, such as the applicant impregnating the complainant, a longer period of offending, the presence of violence or the existence of relevant previous convictions. However, they also do not have some of the aggravating features of this case. The entirety of the circumstances needs to be considered.
None of the cases referred to have the combination of circumstances of this case, being:
(a)a conviction after a trial;
(b)a very young complainant, who was between four and around eight at the time of the offending;
(c)sexual abuse which involved regular penile-vaginal rape;
(d)a maintaining period of approximately three years; and
(e)the applicant being the complainant’s biological parent.
That is to be expected. In R v C; Ex parte Attorney-General (Qld)[18], de Jersey CJ observed that the circumstances of these kinds of offences exhibit infinite variation. He continued:[19]
“… one should not be rigidly tied to ranges as such, but flexible enough to give due allowance to significant variations from case to case.”
[18][2003] QCA 134.
[19]R v C; ex parte Attorney-General (Qld) [2003] QCA 134, page 4.
In my view, an analysis of the authorities referred to by the applicant does not demonstrate that the applicant’s sentence was unreasonable or plainly unjust, or that the sentencing judge, in the exercise of discretion, should have imposed a more lenient sentence.
As Morrison JA explained in HBT:
“[78]A sentence is not established to be manifestly excessive merely if the sentence is markedly different from other sentences in other cases. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle or that the sentence is “unreasonable or plainly unjust”. In R v Pham it was stated:
“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”
[79]As set out in Barbaro v The Queen:
“… in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion.”
[80]Similarly, in Markarian v The Queen, it was stated:
“Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing a sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached.”
[81]In cases such as these, when determining where a matter falls within a range, significant circumstances may substantially increase a sentence for an offence of maintaining a sexual relationship. These were outlined in R v SAG:
(a)a young age of the child when the relationship thereafter maintained first began;
(b)a lengthy period for which that relationship continued;
(c)if penile rape occurred during the course of that relationship;
(d)if there was unlawful carnal knowledge of the victim;
(e)if so, whether that was over a prolonged period;
(f)if the victim bore a child to the offender;
(g)if there had been a parental or protective relationship;
(h)if the offender was being dealt with for offences against more than one child victim; and
(i)if there had been actual physical violence used by the offender; and if not whether there was evidence of emotional blackmail or other manipulation of the victims.”
(citations omitted)
To be successful, the applicant must “show more than a difference, even a marked difference, from sentences in other cases...what is required is a demonstration that the sentence that has been imposed is so unjust that it must be the consequence of a hidden error.”[20] The applicant has not done so.
[20]R v Crothers (a pseudonym) [2020] QCA 268, [19].
This was a particularly serious case of prolonged sexual abuse, involving repeated penile-vaginal rape, by a biological parent upon his very young daughter; most of the circumstances set out in SAG are present in this case.
In BAY, Atkinson J commented:[21]
“Each of these cases is very serious but the gravamen of the length of time over which the offending occurred in this case is that it essentially robbed the complainant of the whole of her childhood.”
[21]R v BAY [2005] QCA 427, [44].
In this case, the applicant well and truly robbed his daughter of her childhood. She was sexually abused from the age of four until around eight years old and is clearly still dealing with the consequences of the offending. She is only fourteen now. A victim impact statement tendered at the sentence demonstrates that the offending has had, and continues to have, a profound physical and psychological impact on her.
Taking into account all of the relevant circumstances and the mitigating factors, on a consideration of the relevant authorities, the sentence was not manifestly excessive.
I would refuse the application for leave to appeal against sentence.