R v M

[1999] QCA 344

99.344

COURT OF APPEAL

McMURDO P PINCUS JA THOMAS JA

CA No 219 of 1999
THE QUEEN
v.

M Applicant

BRISBANE
..DATE 20/08/99
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PINCUS JA: This is an application for leave to appeal
against sentence by a middle aged man convicted of rape of
his adopted daughter. There were four rapes charged, the
first of which occurred when the complainant was 13 and last
when she was 16.

The learned primary judge, who took into account that the applicant pleaded guilty, imposed a sentence of 12 years imprisonment with the recommendation that the applicant be considered eligible for parole after having served five years.

In the judge's report to this Court her Honour drew attention to the decision of the High Court in Siganto (1998) 73 ALJR 162, and to the question whether cases which decided that Part 9A of the Penalties and Sentences Act 1992 do not apply to offences committed and before that Part came into operation should be followed. This Court had given consideration to the question mentioned by the primary judge in Staines (CA No 462 of 1998, 10 August 1999), and the Crown has not argued against the view which was expressed in that case.

The record discloses that the applicant came to trial on
these four and other counts and the jury was empanelled.
Shortly after that counsel for the applicant asked for an
adjournment to take some instructions and the result was
that when the Court resumed the applicant pleaded guilty to
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these four counts of rape, other counts which had been laid,
of unlawful and indecent dealing, being dropped.

There were, according to the submissions made by the Crown below, some other culpable acts than four rapes which were committed by the applicant, and I will mention these again later.

The complainant was adopted by the applicant and his wife when she was five years of age and she understood herself to be the applicant's natural daughter. Just before her 13th birthday the applicant offered to buy the complainant a cassette player if she had intercourse with him.

It appears that this offer was not accepted, but shortly after that the applicant told the complainant to get undressed and had intercourse with her without her consent.

She was a virgin at the time and the act of intercourse

caused her much distress. Immediately after the rape the
applicant took photographs of the complainant naked in

various poses.

The second rape, when the complainant was in grade 6 or
grade 7, occurred in the presence of a school friend of the
complainant. The applicant called her friend into the
bedroom where, at his direction, the complainant had lain
down to enable him to have intercourse with her, and the
applicant conversed with the friend while he was having
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intercourse. He invited the friend to have intercourse with
him. According to the friend's statement, the complainant
looked scared and embarrassed while the intercourse took
place.

The third rape occurred on an occasion where the complainant told the applicant that if he did not stop having sex with her she would go to the police. He thereupon slapped and punched her and took her into bushland where he had intercourse with her without her consent.

The last rape occurred when the complainant was nearly 16 years of age and its details do not require any particular discussion. In the following year it was found that the complainant was pregnant and, as has subsequently emerged, the father was a next-door neighbour. The child was born in April 1990 and its parenting was taken over by the applicant and his wife, the complainant being excluded from the child in some sense. About 12 months later she was sent to stay with an adopted grandmother in Sydney, without the child. She attempted unsuccessfully to run away from that place, but eventually did so.

I mention these matters because of a submission which was
made on behalf of the applicant that the delay in launching
the prosecution should be taken into account in favour of
the applicant. The prosecutor said below that in the
complainant's mind she remained on the run from the
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applicant for a number of years but in 1997 she decided not
to continue in that way and to try to get her daughter back
so she complained to the police about the matters with which
the Court is currently concerned. For the reasons which I
have mentioned, in view of the history which I have
mentioned, it does not appear to me that the delay avails
the applicant in this case. It was due to circumstances
associated with the offences and a very natural reaction to
them.

In 1997 there was a committal proceeding which went for three days, interrupted by the calling of witnesses other than the complainant. According to the prosecutor the complainant had her life largely ruined by these events and she described the experience as a living nightmare.

Counsel for the applicant below informed the judge that the applicant had been physically abused by a man with whom his mother was living after his father's death from about the age of 12 years to the age of 16 years. He had, since leaving school at the end of grade 10, been generally speaking in full-time employment and had no previous convictions. He did, however, have some convictions for subsequent offences.

The judge was told by counsel that the applicant claimed to
have an honest belief, presumably meaning an honest belief
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in consent. Plainly that was not accepted by the learned
primary judge, nor should it have been.

I have mentioned that the prosecutor told the judge of offences other than those for which the applicant was being sentenced. The prosecutor said that the complainant had an early recollection of being sexually abused by being directed to perform oral sex upon the applicant. There is mention of sexual abuse starting at an early age and that the applicant repeatedly told the complainant that if she told anyone of his sexual transgressions the family would be broken up. It seems that some of these matters to which I have just referred were the subject of the counts which were dropped and it is not clear to me that the prosecutor's reference to them was justified. The prosecutor also told the judge that after the third rape which, as I have mentioned, followed upon the slapping and punishing, violence by the applicant became a regular feature in the life of the complainant. The prosecutor also mentioned that by July 1989 the complainant frequently had sexual relations with the applicant. She turned 16 in April 1989. In the judge's sentencing remarks, her Honour mentioned the physical violence between the third and fourth rapes.

It appears to me to follow from the decision of this Court
in the case of D [1996] 1 Qd.R. 363, particularly at page
403, that the judge was not entitled to impose any heavier
sentence upon the applicant by reason of his having
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committed these uncharged offences. Of course, the fact
that, as appears from what the prosecutor said, the last two
rapes were induced by physical violence rather than by some
other means was a matter which the judge had to take into
account; but violence not immediately connected with the
charged rape would not be a ground for increasing the
sentence.

The argument which was put forward by Ms McGinness on behalf of the applicant was simply that, whatever one might think in the absence of reference to previous decisions, the sentence imposed of 12 years with a recommendation after five years does not stand scrutiny, having regard to those previous decisions.

I will make reference to those which appear to me to be most relevant and attempt to summarise briefly their major features.

C (CA Nos 269 and 270 of 1998, 23 October 1998) was an Attorney-General's appeal. The offender there was a step- father. The sentence was 12 years with recommendation for parole after four and a half years. There were two victims.

The male respondent, who is the one with whom I am

concerned, was guilty of seven counts of rape, three of
unlawful carnal knowledge, one of indecent dealing, one of
indecent treatment and one of maintaining an unlawful sexual
relationship with a child over a period of seven years.
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There were, in effect, many offences committed and the case
is, in that respect, sharply distinguishable from the
present, where there were only four charges. The court
rejected the Attorney's appeal, principally it appears on
the ground that the respondent had serious health problems.
In M [1997] 1 Qd.R. 404, the sentence was 11 years; there
was a plea of not guilty. The charges were of two rapes and
other sexual offences. In the course of their reasons,
McPherson JA and Demack J said that the sentence of 11 years
must be said to be capable of being considered severe. The
offences of rape, their Honours went on to say, would
ordinarily attract a sentence of eight years or so. Their
Honours went on to say:

"He is 20 or more years older than she, and it is plain that

he used both the authority of and the opportunities
afforded by his being the complainant's stepfather to

impose sexual demands upon her." (412)

Their Honours continued, in effect, that there were
particular circumstances which justified the sentence of 11
years being higher, of course, than the eight years which
they had mentioned; they were the offender's sticking a head
of a hammer into the complainant's vagina, causing her to
bleed; pushing a knitting needle inside her vagina making
her bleed, apparently with a view to inducing an abortion;
as the Judges said, that could easily have proved fatal.
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The view which the Judges took was that the applicant had
ruined what chances the girl had of a normal life, and he
had displayed no remorse. M seems to me to be a worse case
than the present and there, the sentence was, as I have
said, 11 years.

In Oldham (CA No 243 of 1993, 27 October 1993), to which we have also been referred, there were charged two dealings and two rapes. But the Court in fact took into account, this being a sentence imposed before D, other sexual offences which were not the subject of charges. There was no complaint made about that and so the case was one where there were numerous other offences than those charged taken into account. The Judge described the appellant as having systematically debauched the complainant over a period of time, and that seems to have been the case. The plea was not guilty. The victim was between 8 and 12 years, and the sentence imposed was a sentence of eight years.

In Anderson (CA No 55 of 1994, 14 June 1994), the Court had
to deal with another case where there was a plea of not
guilty. There were two rapes charged, but it had in common
with Oldham that there were numerous other offences taken
into account. McPherson JA said:

"The offences the subject of this application and of the

indictment were however not isolated instances but
examples of a consistent course of raping of the
complainant that occurred, as His Honour found,
once or twice a month during the five years that
elapsed from the time the girl was eight years old
until she began to have her periods at the age of about
13."

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There, the complainant was the daughter of the offender's
de facto. There was a plea of not guilty and a sentence of
10 years.

The last case I will mention is A, which is one of the cases to which the primary Judge was referred, CA No 158 of 1997, judgment 8 August 1997. That was a sentence of 10 years. The applicant was the complainant's stepfather. There were three counts of rape and one count of assault with intent to commit rape, and one count of indecent dealing. There was a plea of not guilty. A sentence of 10 years was complained of. The particular circumstances of the case do not very clearly appear from the reasons, but the Court said that the charges were particularly serious and a sentence of 10 years was upheld.

Having regard to these comparable sentences presented to us by experienced counsel on both sides, it does not appear to me that the head sentence can stand, taking into account the

fact that there was a plea of guilty (although late) and the
other matters which I have mentioned. It appears to me that
12 years head sentence was beyond the range and not
justifiable if one has regard to the cases in which similar
or, indeed, even lower sentences were imposed where there
were numerous sexual offences taken into account.
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In my view, the proper course is to reduce the head sentence
from 12 years to 10 years. I would not, however, think that
there is any justification for interfering with the
recommendation in respect to parole; in view of the fact
that the parole would normally be available after five
years, I would simply replace the sentence below, one of 12
years with the five-year recommendation I have mentioned, by
a sentence of 10 years.

THE PRESIDENT: I agree with the order proposed and with the reasons of Mr Justice Pincus.

THOMAS JA: I also agree. While the sentence of 12 years imposed at first instance does not at first glance seem inappropriate for the dreadful conduct of which the applicant is guilty, the cases to which we have been referred, mainly Anderson, A, M, P, G and C, do not justify a sentence of that level. In there interests of consistency, it should be reduced to 10 years, but no recommendation is necessary in relation to parole. I agree with the order that has been proposed.

THE PRESIDENT: The order is the application for leave to appeal is granted. The appeal is allowed. The sentence below is varied by varying the head sentence from 12 years to 10 years and omitting the recommendation for release on parole. Otherwise, the sentence below is confirmed. 200899 T16/RRD20 M/T COA 200/99

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