R v SDO

Case [2021] QCA 263

SUPREME COURT OF QUEENSLAND

CITATION:

R v SDO [2021] QCA 263

PARTIES:

R
v
SDO
(applicant)

FILE NO/S:

CA No 23 of 2021
DC No 418 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich – Date of Sentence: 3 December 2020 (Lynch QC DCJ)

DELIVERED ON:

3 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

22 October 2021

JUDGES:

Fraser and Morrison and McMurdo JJA

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 21 charges of sexual offending committed against three complainants – where two complainants were his biological daughters and the third complainant was his niece – where the applicant was sentenced to 14 years imprisonment with one count being declared a serious violent offence – whether the sentence was manifestly excessive

R v DBF(No 3)[2013] QCA 382, considered
R v HBT (2018) 274 A Crim R 569; [2018] QCA 227, considered
R v Pham (2015) 256 CLR 550; [2015] HCA 39, applied
R v RAZ; Ex parte Attorney-General (Qld)[2018] QCA 178, considered

COUNSEL:

The applicant appeared on his own behalf
D Nardone for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I agree with the reasons for judgment given by Morrison JA and the order proposed by his Honour.

  2. MORRISON JA:  The applicant pleaded guilty to 21 charges of sexual offending, committed against three complainants.  Two of them were his biological daughters; the third was his niece.

  3. Counts 1-8 related to the applicant’s older daughter, B.  She was aged between six years and 13 years during the period of offending in respect of her.  The offences against B were:

    (a)count 1 – maintaining a sexual relationship with a child under 16 years old, in the course of which B was indecently treated; and

    (b)counts 2-8 – indecent treatment of a child under 12 years old, who was also a lineal descendant.

  4. Counts 9 and 11-21 all related to the applicant’s second daughter, T.  She was aged between four years old and 15 years old during the period of offending in respect of her.  The offences in respect of T were:

    (a)count 9 – maintaining a sexual relationship with a child under 16, in the course of which she was raped and indecently treated;

    (b)counts 11, 13, 15, 17 and 20 – rape; and

    (c)counts 12, 14, 16, 18-19 and 21 – indecent treatment of a child under 16 years old, who was also a lineal descendant.

  5. The third complainant was the applicant’s niece, Z.  She was seven years old when, in March 2019, the applicant raped her (count 10).

  6. Counts 10-21 inclusive were each averred to be a domestic violence offence.

  7. The applicant was sentenced to the following terms of imprisonment:

    (a)count 1 –…

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Details
AGLC
R v SDO [2021] QCA 263
Case
[2021] QCA 263
Decision Date

CaseChat Overview and Summary

The case of R v SDO involved the applicant appealing against his sentence, which he argued was manifestly excessive. The applicant had pleaded guilty to 21 charges of sexual offending against three complainants, two of whom were his biological daughters and one of whom was his niece. The offending occurred over a span of 17 years, from December 2003 to February 2020, and during a three-year period, the applicant offended against both of his daughters simultaneously. At the time of sentencing, the applicant was 22 years old, his eldest daughter was 15, and his niece was nine. The sentencing was based on an agreed statement of facts, which detailed the nature and extent of the offending. The court sentenced the applicant to 14 years in prison, with one count being declared a serious violent offence. The applicant argued that the sentence was manifestly excessive, and the court was required to determine whether the sentence was indeed excessive.

The legal issue before the court was whether the sentence imposed on the applicant was manifestly excessive or inadequate. The court considered the arguments put forward by the applicant, who sought to distinguish the case from previous cases with similar offending, such as DBF (No 3), RAZ, and HBT. The applicant argued that these cases had distinguishing features that made them less applicable as yardsticks for determining the appropriate sentence in this case. However, the court found that while these cases had some differences, they were not so significantly different as to warrant a conclusion that there had been a misapplication of principle in the present case. The court held that it could not be demonstrated that the sentence imposed was in error or manifestly excessive.

The court found that the sentence imposed on the applicant was appropriate and not manifestly excessive. The court rejected the applicant's argument that the previous cases were not of utility as yardsticks and held that the sentences imposed in those cases were relevant for comparison. The court found that the severity and duration of the offending in the present case warranted a sentence of 14 years in prison. The court concluded that the sentence imposed was not manifestly excessive and refused the applicant's application for leave to appeal against the sentence.

Accordingly, the court dismissed the applicant's appeal and refused his application for leave to appeal against the sentence. The final order of the court was that the application for leave to appeal against sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

Background

Background to the litigation

The offending spanned the period between December 2003 and February 2020. Of that 17 year period, there was an overlap of about three years when the applicant offended against both of his daughters at the same time.Background to the offending An agreed statement of facts formed the basis of the sentencing. By the time of sentencing B was 22 years old, T was 15, and Z was nine. The circumstances of the sole offence against Z (rape) concerned an occasion when Z and her family, including the applicant, stayed at a particular resort. Z slept in a room with the applicant and his family (including his wife and her younger sister). Z slept on a top bunk above the applicant. Sometime after Z had gone to bed, the applicant came into the room to go to bed in the bunk below Z. After a couple of minutes, he approached Z, pulled her underpants to the side under her nightie, and briefly penetrated her vagina with his finger.[2] Z told police she could feel the applicant’s finger inside her vagina for approximately five seconds. She began to cry. The applicant told her not to cry and said, “please don’t tell anyone”.[2]Count 10. About nine months later, Z’s mother went to the police, advising that Z had disclosed sexual offending against her by the applicant. Z participated in an interview. Police arranged for Z’s mother to conduct a pretext phone call with the applicant. The recording failed, but the allegation made by Z was put to the applicant. Following that call, the applicant told his wife (the mother of B and T) of the allegation and denied it. Some days later, the applicant attended the police station where he was advised of the nature of the allegation and an arrangement to take part in a recorded interview some days later again. During that interview, the applicant confirmed all of the surrounding circumstances as revealed by Z, including the sleeping arrangements and the occasions when he was in the bedroom with just Z and his sister-in-law. When the allegations were put to him in full, the applicant said he did not recall any of it and continually used the phrase, “I don’t think it happened”, rather than expressly denying the allegations. When pressed as to why he responded that way, he said it was because he did not understand why Z would say it happened. He told police that Z was always very affectionate towards him, sometimes to the point that he had to push her away. Following that interview, the applicant was charged for the offending against Z and released on bail. While the applicant was with the police, B disclosed to her mother that the applicant had offended against her for “a long time”. After the applicant had left the police station, his wife asked whether he had offended against their children. The applicant denied any such conduct until he was told that B had made disclosures. He then admitted that he had “touched” B, but that he had not offended against any of the other children. Later that day, the applicant’s wife spoke to T who, in general terms, disclosed the offending committed against her, and the duration of it.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In his oral submissions the applicant sought to demonstrate that DBF (No 3), RAZ and HBT had distinguishing features that meant they were not of utility as yardsticks. True it is that each has facts that are different from the present case, and HBT was a sentence imposed after a trial. However, in DBF (No 3): (i) the relevant sentence under challenge was imposed upon a plea of guilty; (ii) the victims were slightly older when the offending started; (iii) the offending was shorter in duration than here; (iv) the offending conduct was similar though the third daughter was disabled and the offending against her was the subject of the 17-year sentence. All that demonstrates is that DBF (No 3) was a worse case that attracted a higher sentence. Similar points can be made as to RAZ, and how less serious offending attracted a lower sentence in that case. However, that does not satisfy the test set in Pham, namely that this Court should be driven to conclude that there must have been some misapplication of principle. I cannot reach that conclusion.Conclusion It cannot be demonstrated that the sentences imposed were in error, or manifestly excessive. The application should be refused. The order I propose is:1.Application for leave to appeal against sentence refused. McMURDO JA: I agree with Morrison JA.

Ratio Decidendi

Legal Principle Established

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