R v C

[1992] QCA 13

[1992] QCA 13

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 262 of 1991

Before the Court of Appeal

The President

Mr Justice Davies

Mr Justice Pincus

THE QUEEN

v

C

JUDGMENT OF THE COURT

Delivered the 3rd day of March, 1992

COUNSEL:  Mr Donnelly for the Applicant

Mr Butler for the Crown

SOLICITORS:          Anderson and Co. t/a for Conroy and Conroy for the Applicant

Director of Prosecutions for the Crown

Hearing Date: 28th February, 1992

JUDGMENT OF THE COURT

Delivered the 3rd day of March, 1992

The applicant was convicted of rape on his own plea on 19 September 1991 and sentenced by Judge Morley Q.C. in the District Court to 8 years imprisonment with a recommendation that he be considered  for parole after 2 years.  He applies for leave to appeal to this Court on the ground that that sentence was manifestly excessive.
           The offence was committed in the second half of 1990.  The victim was the 9 year old daughter of a woman with whom the applicant lived in a de facto relationship.  That relationship had commenced before the birth of the victim and, throughout her life, he had assumed the position of her father.
           The applicant, in order to effect penetration and commit the offence, had overpowered the girl by holding down her arms but there was no other violence associated with the crime.  The girl complained to her mother and her mother confronted the applicant.  At first the applicant denied the accusation.  After the girl had been taken to a doctor by her mother, the mother again confronted the applicant who then gave equivocal answers and when pressed admitted the offence.  He was interviewed by the police the same day and made a confession.
           Aggravating factors included the age of the child, her continuing distress, and the fact that the applicant was in a parental relationship to her, the child having gone to the applicant "as any daughter of her age would to her father, or her father figure at the time". 
           The offence was an isolated act.  There was no suggestion that it was part of any course of conduct over a period of time.  There was evidence that the applicant's conduct on the occasion was induced by excessive consumption of alcohol and, though rather indirectly, by a post-traumatic stress syndrome induced by terrifying events of a mudslide in the mine in which he worked in 1984.  The applicant was of previously good character, he demonstrated remorse and shame and, after the event, had voluntarily moved out of the house which was in his name, continued paying the mortgage payments and, by the time of trial, was in the process of transferring the house to his de facto wife.   His early guilty plea avoided any need for the child to give evidence on any occasion.
           It was not suggested before us that His Honour ignored any relevant factors.  But it was argued that he had erroneously concluded  that imprisonment for 8 years was the minimum which he could impose and that,  given the circumstances of this offence, the sentence was manifestly excessive.
           As was fairly acknowledged by Mr Butler for the Crown, the decisions to which we were referred suggest a disparity between the sentences imposed for the rape of young female children and the sentences imposed upon fathers charged with and convicted of incest in similar circumstances.  Mr Butler accepted that a father charged with incest in circumstances such as the present would probably have been sentenced to a prison term  of between 4 to 6 years.
           On the other hand, this sentence is not outside the range of sentences which have been imposed for offences of rape of this kind; that is, of a young child by a man in a quasi-parental relationship with her, accompanied by the other factors to which reference has been made.
           The explanation for the disparity we have mentioned is not immediately obvious.  It by no means follows that sentences for rape should be reduced to conform to those which, hitherto, have been imposed for incest. As Mr Butler accepted, it might be that a father who has sexual intercourse with his daughter in circumstances  where lack of consent is evident, for example because of the young age of the child, should be charged with rape, not incest.  Alternatively, it might be that sentences for incest should be brought in line with those imposed for rape.  However, those are matters for further consideration.
           Particularly when regard is had to the recommendation for early parole, the sentence imposed in this case is not out of line with sentences previously imposed for rape in comparable circumstances and is not manifestly excessive.  Accordingly, the application for leave to appeal should be dismissed.