R v M and Attorney-General of Queensland

[1996] QCA 257

IN THE COURT OF APPEAL	[1996] QCA 257
SUPREME COURT OF QUEENSLAND

C.A. No. 137 of 1996

Brisbane [R. v. M]

THE QUEEN

v.

M

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Williams J Ambrose J Byrne J

Judgment delivered 02/08/1996

Joint reasons for judgment of B.W. Ambrose and Byrne JJ; separate dissenting reasons of Williams J.

Appeal allowed. Set aside the sentence imposed in respect of the offence of maintaining a sexual relationship with K. In lieu thereof, the respondent is sentenced to 10 years imprisonment, with a recommendation that he be eligible for parole after serving 2½ years of that sentence.

CATCHWORDS: CRIMINAL LAW - maintaining a sexual relationship with

circumstances of aggravation.
ATTORNEY-GENERAL'S APPEAL - whether sentences

inadequate - significance of wishes of victims.

Counsel:	Mrs L. Clare for appellant Mr M. J. Griffin for respondent
Solicitors:	Director of Public Prosecutions for appellant Legal Aid Office for respondent
Hearing Date:	10 July 1996

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered the 2nd day of August 1996

As noted by Ambrose and Byrne JJ in their reasons, which I have had the advantage of reading, this case presents a difficult sentencing exercise. The essential facts are fully set out by Ambrose and Byrne JJ and I will not repeat them.

The most aggravating circumstance is that the respondent subjected each of his three children to sexual interference over a considerable period of time. His depraved conduct culminated in his committing incest on two occasions with his daughter when she was about 15 years of age. A disturbing factor is that the last act of intercourse occurred only some three days before a female boarder moved into the family home.
Some weeks later that boarder became suspicious of the respondent's conduct, and that is how the offences came to light. Were it not for the fortuitous fact that the boarder moved into the house when she did, the reality is that the respondent's conduct would have continued.
But against that, once the offences were brought to light, he made a full and frank confession to investigating police, sought medical advice and treatment, and pleaded guilty to an ex officio indictment.

Given all of the circumstances, I agree with Ambrose and Byrne JJ in concluding that the head sentence, imposed with respect to the offence of maintaining a sexual relationship with his daughter, did not reflect the seriousness of his criminal conduct. Notwithstanding the mitigating factors, which are fully outlined in the reasons for judgment of Ambrose and Byrne JJ, this was a case where the deterrent aspect of the sentencing process had to prevail. I agree that a head sentence of 10 years was called for.

Counsel for the Attorney-General conceded that, in view of the timely plea to an ex officio indictment, the reasonably favourable psychiatric report, and the attitude of the respondent's wife and children, it was an appropriate case for the court making a recommendation for earlier parole than otherwise would be the case. Certainly it is appropriate to recognise the impact of a confession and early plea such as was forthcoming here.

In all the circumstances I would recommend that the respondent be eligible for parole after serving 3 years of the head sentence.

JOINT JUDGMENT - B.W. AMBROSE & BYRNE JJ.

Judgment delivered 02/08/1996

The Attorney-General appeals against sentences imposed in the Brisbane District Court in respect of sexual offences committed by the respondent against his three children. The respondent pleaded guilty to 33 charges: three of maintaining a sexual relationship with a child under 16 with circumstances of aggravation, two of incest, one of attempted incest, and 27 of indecent treatment of a child under 16 with circumstances of aggravation. This appeal relates only to the sentences imposed for maintaining sexual relationships with his children. In respect of the eldest, P, the sentence was 4 years imprisonment; for the youngest child, S, 5 years imprisonment, and for the daughter, K, 8½ years imprisonment. Lesser sentences were imposed for the other offences. There was also a recommendation that the respondent be eligible for parole after serving 18 months of the sentences.

The respondent was born in Australia in 1957. Many years ago he established a de facto relationship with a woman who is the mother of the three children. P was born in December 1977, K in January 1979, and S in September 1982.

The sexual abuse began in about early 1991 with P. One night, when he was in the lounge room, the respondent asked the boy to masturbate with him. About a fortnight later, the respondent showed P a pornographic video depicting sexual intercourse. As the film was playing, the respondent masturbated and asked P to rub his penis. The respondent next got his son to hold his testicles and, after P did that, ejaculated into the boy's hand. Other similar incidents occurred in 1991.

In 1992, when S was 9, the respondent turned his attentions to him. The first incident occurred in P's presence. The respondent was with his sons in the lounge room when he called S to him, asking him to hold his testicles while he masturbated. S did so and, as that was going on, the respondent called out to P, "Start masturbating or I'll hit you". P did as he was told.

The respondent masturbated in S's presence at other times. Once in 1993 S and his sister went looking for their father to say goodbye before setting out for school. The respondent called out to the children from inside a toilet. When they came near, he opened the door and faced them with his pants around his knees. He was masturbating. The respondent asked S how long it had been since he had seen him masturbate. The child replied "about two weeks", which prompted the respondent to say, "Well you had better watch", and he masturbated until he ejaculated. He then told his children, "OK, you can go to school now".

The respondent's sexual relationship with K became intimate when she was 14 and lasted 15 months. It began with his telling her that he wanted her to know about sexual intercourse. He invited her to watch a pornographic video with him. Later he masturbated in front of her. His misconduct eventually became more degrading.

One night, when K was in grade 9, her father took her into a toilet and had the girl hold his testicles while he masturbated until he ejaculated into her hand. The next night, while he was in the shower, he again procured her to hold his testicles while he masturbated. About two nights afterwards, K woke up in bed to find her father touching her breasts. He licked her nipples. Then he touched her genitalia. After that, she complied with his request to hold his testicles while he masturbated until he ejaculated into his hand. He ended by telling K that he loved her.

About two months later, the respondent approached his daughter while she was asleep. He woke her up, told her to open her legs, climbed on top of her, and digitally penetrated her. In weeks that followed, much the same happened on 10 or more occasions, at least every second night. On one night, the respondent licked her genitalia after making her remove her underwear and pushing her legs open. He desisted when K said she was feeling sick and wanted him to stop. After the offending conduct, on most nights the respondent kissed the girl on the lips, saying "I love you".

The respondent admitted to encouraging his daughter to put her lips around his penis. She recalled a time when he moved his hips up and down while she had the tip of his penis in, or around, her mouth.

In late 1994 the respondent attempted penile penetration. He stopped when K complained that it hurt. Some time later, the girl awoke one night to find her father touching her genitalia. He pushed his finger inside her vagina, moving it in and out, telling her that he was making her "loose". Not long afterwards, the first act of incest took place, at home at night. The respondent made his daughter take off her underwear and penetrated her digitally. Then, while he was naked, the respondent got on top of her and had intercourse with her. She told him that it hurt a lot. A similar incident occurred days later.

The last act of sexual intercourse occurred three days before a female boarder moved into the family home. After that, there were no further indecencies involving the children. The respondent approached the boarder instead, but his advances were not welcomed. She told Mrs M. K walked in on this conversation to be asked by the boarder whether her father had ever done anything to her. She said "Yes. He's been fingering me and other things", and began to cry. The boarder asked S whether the respondent had interfered with him. The boy told of incidents of masturbation with his father.

Mrs M straightaway confronted the respondent at work. At first, he denied interfering with the children, but after a little while he confessed. They went home to discuss the situation. In the result, the respondent went to the Logan Police Station where he participated in a record of interview during which he made full admissions.

The respondent's sons have, it seems, forgiven him. And the judge was left in no doubt that his family was most concerned about the respondent and wanted him home. At the sentencing, P, who said that he spoke for his mother and siblings, told the judge that the respondent was much loved and that the family needed "to stick together". Written statements for the boys were also tendered. They, and reports from a psychologist, gave insight into the perspective of the boys. P did not think the offences would permanently affect him. S, who was only 13 when he gave his statement, was less sure. Both boys emphasised that they wanted their father to return home and were optimistic that the family could survive the offences and their aftermath.

A psychiatrist assessed the potential consequences for K. The report indicates that she felt guilty, thinking that she may unwittingly have led her father on: as, for example, by wearing skimpy pyjamas. She regularly suffered from nightmares in which she relived incidents of abuse. K had mixed feelings towards her father. She liked to spend time with him yet found herself fearful of him. She was interested in boys her own age but was apprehensive about dating in case it led to physical intimacy. The girl realised that it was very difficult for her mother to cope without the respondent's financial support. She felt blamed by the rest of the family for his forced removal - something initially required by his bail conditions. K was eventually persuaded to accept that he return home to be with the family pending the sentencing. The psychiatrist considered that K would experience ongoing emotional problems.

Like so many men who sexually abuse their children, the respondent was otherwise a good parent. He had a satisfactory employment history and no prior convictions. He was sexually molested as an adolescent, although not by a relative. He was remorseful and, according to his psychiatrist, had responded well to therapy. His psychiatrist thought it extremely unlikely that there would be any further expression of inappropriate sexual inclinations within the family, and no chance of any such conduct beyond it.

In comprehensive sentencing remarks, the judge referred to R. v. K, C.A. No. 203 of 1993, 19 August 1993. There the offender had maintained a sexual relationship for 2½ years with a step-daughter from when she was 12. With another pubescent step-daughter, he maintained a sexual relationship for about 3 years. He maintained a sexual relationship with his own son for 3 years from the time the boy was about 6. The offender had sexual intercourse and fellatio with one of the girls regularly, sodomised one of them, and made his son suck his penis on three occasions. Several times, the offender procured his step-daughters to suck the boy's penis. In that case too, the offender had been subjected to sexual abuse as he grew up. Reflecting remorse, he also had obtained counselling and pleaded guilty at an early stage, saving the victims the ordeal of a committal and trial. The offender was 33 when sentenced. On the Attorney-General's appeal, a sentence of 12 years imprisonment was imposed for maintaining the unlawful sexual relationships with the step-daughters. For the boy, the sentence was 5 years. To allow for the remorse, the extensive counselling and treatment, and the benefits gained by the early pleas, this Court recommended that the offender be eligible for parole after 4 years. The judge, with a little exaggeration, spoke of K as a far worse case. More importantly, the judge mistakenly said that K received a recommendation for parole eligibility after 2½ years.

"Sentencing", said Brennan J in The Queen v. de Simoni (1981) 147 CLR 383, at
407, "evokes much judicial anxiety and rightly so". This appeal presents a poignant
illustration.
Basic considerations indicated that that condign punishment was appropriate:

for example, the need to mark community disapproval, the interests of general deterrence, and that the maximum sentences were imprisonment for life in the case of the girl and for 14 years in respect of each of the boys. However, this respondent's incarceration must add significantly to the victims' burdens. The children know that their mother is financially dependent on their father. They realise that the prospects of sustaining the family are jeopardised by his detention. They still love their father, and the boys and their mother at least want him home. Then there is K's powerful, albeit irrational, sense of guilt, which can only be aggravated by a perception that she is to blame for the family's distress while her father is in prison. In short, prolonged incarceration will bring the victims even more hardship, economically and emotionally. And it must be little comfort to the children to be told that they must continue to suffer so that community disgust is sufficiently recognised or for the sake of general deterrence.

The judge decided to "give some effect to the needs of the children so that they had their father back again as soon as possible". Emphasising that consideration, and taking into account the respondent's remorse, the favourable prognosis in respect of recidivism, and the pleas of guilty to an ex officio indictment, eligibility for parole after 18 months was recommended.

The concerns of the victims mattered: cf. R. v. Welch, CA 64 of 1996, 31 May 1996. Especially in view of the useful ways in which the respondent's considerable remorse has been manifested and the slight risk of recidivism because of the treatment voluntarily sought, in recognition of the wishes and interests of the victims, the judge was entitled to approach the sentences by extending as much leniency as might be done consistently with the court's duty to protect the community in accordance with the guidelines in s.9 of the Penalties and Sentences Act 1992. But, in a case such as this, according excessive weight to the wishes of the victims carries its dangers. First, there is the risk of inappropriate disparity in broadly similar cases. Next is the prospect of pressures, crude or subtle, on victims to press for mercy: pressures that may emanate from another member of the family. Thirdly, weakly merciful sentences can diminish public confidence in the willingness of courts to protect children and to express the community's disapproval of a parent's grave sexual misconduct with a child.

The wishes of the children and the mitigating circumstances mentioned justified a recommendation for earlier than usual parole. However, the recommendation the judge made, which, it seems, was influenced by a misapprehension of the parole recommendation in K, is much too lenient. More appropriate recognition can be given to the competing factors in this difficult case by a sentence of 10 years imprisonment in respect of maintaining a relationship with K, coupled with a recommendation that the respondent be eligible for parole after serving 2½ years. The appeal should be allowed to that extent.