R v G

[1992] QCA 231

[1992] QCA 231

COURT OF APPEAL

MACROSSAN CJ McPHERSON JA PINCUS JA

CA No 168 of 1992

THE QUEEN

v

G	(Appellant)
BRISBANE DATE 15/7/92
JUDGMENT

THE CHIEF JUSTICE: I shall ask Mr Justice McPherson to deliver his reasons first.

McPHERSON JA: This is an application by G for 1eave to appeal against a sentence of seven years' imprisonment imposed upon him in the District Court at Brisbane. The offence in respect of which the sentence was imposed, and to which he pleaded guilty, is identified in the indictment as maintaining an unlawful relationship of a sexual nature with the named complainant, a child under 16 years. The indictment also alleges, as a circumstance of aggravation, that in the course of the relationship the applicant had carnal knowledge of the complainant, knowing her to be his daughter.

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The circumstances of the offence are that the complainant is the daughter of the applicant and a woman known as AC from whom the applicant had separated some six or so years before the events leading to these charges. The complainant's mother formed a relationship with a man called C at Goondiwindi, and the complainant resided with them until coming to live with her father in Brisbane late in 1989. She was then 15 years of age and the applicant was 35 years of age. From May until about September 1990 there were four occasions on which the applicant had sexual intercourse with his daughter the complainant. It is these, or the relationship that they involved, that are charged as the offence and the circumstance of aggravation.

The offence is created by s 229B of the Criminal Code. It or its description may be novel, but, in the circumstances of the present case, it is not in doubt that it is proper to look to sentences imposed for incest as affording a guide to the appropriate sentence in this case. Counsel before us agreed that the range of sentences for comparable offences of incest extended to imprisonment from four to seven or perhaps eight or so years. Decisions in the Court of Criminal Appeal disclose some instances of sentences for incest that were reduced from seven to five years. A comparison of the facts in some of those cases with those in this suggest that they were examples of incest with features making them more serious than this or at least as bad as this. For instance, in one or more the girl involved was younger, or there were more than one victims of the offence or offences, or an element of force or threat of force was detectable.

That survey tends to confirm my own impression that the sentence in the present case may be considered excessive unless it is possible to identify other particular circumstances that may be seen to aggravate it. Those relied on by the Crown in support of the seven year sentence imposed on the applicant are that the four acts of sexual intercourse took place over a period of

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four months; they involved a degree of premeditation or planning on the part of the applicant in all, or at least some, of those instances. This, it was submitted, tended to make the offence more serious than if it had been precipitated by a sudden surge of passion on the part of the applicant.

Finally, it is put that the complainant had already been sexually mistreated by the man C while she was living with her mother in Goondiwindi. In November 1989 C was sentenced to four years' imprisonment for indecent dealing in relation to the complainant in this case. It was in consequence of those events that the complainant came to live with her father in Brisbane. Far from protecting or reassuring her, as perhaps one might expect he would have done had he been a good father, he then proceeded to treat her in a fashion not dissimilar to and perhaps worse than she had been treated by C. Needless to say, this double experience has had an adverse impact on her outlook.

For the applicant, it was submitted that there were factors going in mitigation of his offence. There is evidence of remorse. Whether or not on advice, in contemplation of the proceedings against him the applicant consulted a psychologist, Mr Grantham. His report records at page viii of the record that the applicant told Mr Grantham, "I know I'm to blame. I'm the adult." Without being at all critical of the complainant's conduct, it is impossible not to notice that she does not, at least on the first three occasions of sexual intercourse, appear to have resisted the applicant's advances with any great vigour, so that his remorse in the form of the words to which I referred may be thought to have cogency and relevance in that context. On the fourth occasion where some degree of force or perhaps threat of force was said to have been used, the applicant appears to have desisted from carrying his purpose to its full conclusion by her protests.

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More important than all those matters is, to my mind, the fact that the applicant pleaded guilty to this offence. It is a case where one can see that the plea of guilty was not worthless or meaningless, as it is in some of the cases where the evidence in any event clearly establishes the guilt of an accused. More particularly, in instances of this kind, the plea of guilty avoids the embarrassment and pain to the complainant of having to give evidence in circumstances such as these.

His Honour, in his sentencing remarks, referred to the plea of guilty and said that he took it into account in favour of the applicant. I am, however, persuaded that a comparison of the circumstances of this case with those to which I referred earlier, in which the Court of Criminal Appeal reduced the sentence, suggests that the plea of guilty was not given sufficient weight in the present case.

In those circumstances, I would be disposed to grant the application, allow the appeal, set aside the sentence imposed and substitute a sentence of four years and six months imprisonment in respect of the charge for which the applicant was sentenced below.

THE CHIEF JUSTICE: I agree.

PINCUS JA: I agree.

THE CHIEF JUSTICE: The order of the Court will then be as Mr Justice McPherson has indicated.

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