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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v RBC  QCA 99
CA No 8 of 2020
SC No 509 of 2020
DC No 498 of 2019
Court of Appeal
District Court at Cairns – Date of Sentence: 9 December 2019 (Morzone QC DCJ)
12 May 2020
8 April 2020
Morrison JA and Boddice and Williams JJ
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted, on her own plea of guilty, of 14 counts of sexual offences, all domestic violence offences – where all sentences were to be served concurrently – where the head sentence was nine and a half years’ imprisonment (Count 14, rape) – where no parole eligibility date was set – whether the sentence on Count 14 was manifestly excessive
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the contention advanced was that the allegation of oral sex in relation to Count 14 could not stand as a particular of rape – where the allegation was, in effect, an uncharged act – whether the learned sentencing judge took into account an uncharged act in relation to Count 14
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where it was contended that it is the Court that is required to set a parole eligibility date – where the learned sentencing judge referred to the role of experts, who could guide as to appropriate programs, in the sentencing remarks – whether the learned sentencing judge took into account irrelevant or incorrect considerations in exercising the discretion as to whether to fix a parole eligibility date
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – where the appellant was convicted of rape (Count 13) – where the appellant challenges her conviction on the basis that it was a miscarriage of justice – where, before this Court, the Crown conceded that the accepted facts did not disclose an offence of rape – where the conviction was set aside and leave to withdraw the plea of guilty was granted – where the Crown presented an ex officio indictment for the alternative charge of indecent treatment – where the appellant entered a plea of guilty – where the appellant accepted that the sentence on the new charge would be one determined by this Court – whether the new sentence affects the question of manifest excess in relation to Count 14
Criminal Code (Qld), s 6, s 349(2)(a)
R v Auer; Ex parte Attorney-General (Qld)  QCA 222, applied
R v BBM  QCA 162, considered
R v BBP  QCA 114, cited
R v BCW  QCA 340, considered
R v CCK  QCA 237, cited
R v DBC; Ex parte Attorney-General (Qld)  QCA 203, applied
R v EK  QCA 278, cited
R v GQ  QCA 53, considered
R v HAA  QCA 55, considered
R v KAJ; Ex parte Attorney-General (Qld)  QCA 118, cited
R v MCT  QCA 189, applied
R v SAG (2004) 147 A Crim R 301;  QCA 286, applied
A J Kimmins for the applicant
Mellick Smith for the applicant
- MORRISON JA: The appellant committed a series of sexual acts on her three nephews, N1 aged 12, N2 aged 14, and N3 aged nine, as well as her own son, SON.
- The earliest charged act consisted of masturbating her son until he ejaculated, in full view of N1. That took place in a context where the appellant had, for the years between, when her son was seven to 12 years old, encouraged him to lie on her and simulate sexual intercourse using a dildo.
- A pre-sentencing psychological report was ordered and tendered at the subsequent sentencing hearing. The appellant was convicted, on her plea of guilty, of the following counts, all domestic violence offences, arising from that conduct:
- (a)Count 1 – indecent treatment of a child under 16, under 12, who is a lineal descendant;
- (b)Counts 2, 3, 4, 5, 6, 7, 8, 9 and 12 – indecent treatment of a child under 16, under care;
- (c)Counts 10 and 11 – indecent treatment of a child under 16; and
- (d)Counts 13 and 14 – rape.
- The following sentences, all to be served concurrently, were imposed:
- (a)Counts 1, 2 and 3 – in each case, two years’ imprisonment;
- (b)Counts 4, 5, 6 and 11 – in each case, one and a half years’ imprisonment;
- (c)Counts 7, 8, 9 and 10 – in each case, three years’ imprisonment;
- (d)Count 12 – nine months’ imprisonment;
- (e)Count 13 – six years’ imprisonment; and
- (f)Count 14 – nine and a half years’ imprisonment.
- A period of 83 days of pre-sentence custody was declared as time served, and no parole eligibility date was set.
- The appellant seeks to challenge all the sentences, except on Count 13, as being manifestly excessive. In addition, two specific alleged errors were added by leave in the hearing before this Court, namely that the learned sentencing judge:
- (a)took into account an uncharged act in relation to Count 14; and
- (b)took into account irrelevant or incorrect considerations in exercising the discretion as to whether to fix a parole eligibility date.
- As to Count 13, the appellant challenges her conviction on the basis that it was a miscarriage of justice because the accepted facts did not disclose the offence charged (rape). That ground was not raised in time, and therefore the appellant seeks an extension of time within which to appeal.
Count 13 – rape
- In the outline filed for the hearing before this Court the Crown conceded that the appellant had entered a plea of guilty to Count 13, when, in fact, the accepted facts did not disclose an offence of rape. It was proposed that the most convenient way to deal with that was for the conviction to be set aside, and for the Crown to present an ex officio indictment for the alternative charge of indecent treatment of a child under 16 years, under 12 years, and in care. Because the child was her nephew, that offence would constitute a domestic violence offence.
- That course was agreed to by the appellant, who also accepted that the sentence on the new charge would be one determined by this Court, rather than remitting that question to the District Court. This Court made orders on 8 April 2020, setting aside the conviction on Count 13, and granting leave to withdraw the plea of guilty to that Count. The Crown then presented the new indictment, the appellant was arraigned and entered a plea of guilty, and the allocutus was administered.
- The offence was that on a date unknown between 31 October 2018 and 1 December 2018 the appellant unlawfully and indecently dealt with N3, a child under 16 years, and that N3 was under 12 years and under the appellant’s care at the time.
- That left open the question of the sentence to be imposed, which was the subject of submissions in the course of dealing with the sentences otherwise. I shall return to that question shortly.
Circumstances of the offending
- An agreed schedule of facts was tendered at the sentencing hearing. It revealed that the offending conduct occurred in three distinct time periods, but collectively over a two year time span.
- Counts 1-11 were committed against the complainant, N1, and took place between 31 May 2016 and 1 August 2016. Count 12 was committed against the complainant, SON, on a day between 30 June 2017 and 1 August 2017.
- Counts 13 and 14 were committed against the complainant, N3, between 31 October 2018 and 1 December 2018.
- The four complainants were all related to the appellant. The first was her son, aged 10 years old when Count 1 occurred. The second was her biological nephew, N1, aged 12 years. The third was another biological nephew, N1’s older brother N2, aged 14. The fourth complainant was a third biological nephew, N3, aged nine.
- There was an increased level of sexualisation of the children as the offending went along. Counts 1 and 2 occurred when SON and N1 were both present. It was prolonged in respect of SON, a 10 minute instance of masturbation to the point of ejaculation.
- The appellant and her son lived alone at the appellant’s home. He was home schooled by the appellant. N1 would often visit the appellant’s home in order to spend time with SON. N2, N3 and their six year old sister, SIS, would visit less frequently.
- Counts 1–13 occurred in the June/July 2016 school holidays, while N1 stayed at the appellant’s house. These counts occurred in the context where, from 2013 to 2018, SON (aged between 7 and 12) would lie on top of the appellant, fully clothed, and simulate sexual intercourse with her. He would place his hand and a purple dildo up her dress between her thighs, and move it back and forth pretending to penetrate her. This happened frequently. Each time SON and the appellant were fully clothed and lying on the appellant’s bed with the door open, in full view of the other children.
- Count 1: the appellant, SON and N1 were in the appellant’s bed. N1 was on one side of the appellant playing on an iPad. SON was on the other side, and all were fully clothed. The appellant pulled SON’s shorts down to his lower thighs, exposing his penis. The appellant masturbated SON’s erect penis for five to 10 minutes in full view of N1. The appellant giggled as she did so. SON ejaculated onto the appellant’s hand and she said “ew, you came on me”.
- Count 2: following Count 1, the appellant told N1 that she used to do the same to his father. The appellant then put her hand down N1’s shorts and held his penis. She told N1 that she would get in trouble if he told anyone and that he would not be allowed to come back to their house. The appellant masturbated N1’s flaccid penis for 10 to 15 minutes. She then stopped and walked out of the room.
- Count 3: on another day in the same school holidays, N1 and SON were playing. The appellant came into the room and told them both to give her a massage. N1 went with the appellant into a room that contained a massage table. The appellant removed her clothing, other than a black G-string. She lay face down on the massage table and N1 gave her a back massage. The appellant reached out and pulled N1’s penis from his shorts. He attempted to move away and to put his crotch under the massage table so she could not reach him, but she persisted. The appellant masturbated him for 10 minutes until he unwillingly ejaculated onto her hand. N1 ran away. The whole event occurred over 20 to 30 minutes.
- Count 4: on another occasion, N1 was on the living room floor watching television. The appellant was on the couch behind him. The appellant used a purple, double-ended dildo to penetrate her vagina behind N1, who was facing the other direction. The appellant asked, “can you help me with something?” N1 turned around and saw the appellant penetrating her vagina with the dildo.
- Count 5: the appellant then asked N1 to do it, saying that her arm was tired. N1 told her that he did not want to. The appellant told him that he would not be allowed back at the house if he did not do it. N1 was concerned to leave his cousin, SON, alone with the appellant at the house, so he complied. N1 stood over the appellant, who lay on her back on the couch, with her legs spread. She lifted her skirt to reveal her vagina and N1 pushed the dildo in and out of the appellant’s vagina for approximately five minutes.
- Count 6: on another occasion, N1 was on the living room floor watching television. The appellant was on the couch behind him. She produced a white vibrator and told N1 to use it on her. She said “play with me with my vibrator”. N1 said he did not want to. The appellant told him he would not be allowed back at the house if he did not do it. N1 stood over the appellant who lay on her back on the couch, with her legs spread. She lifted her skirt to reveal her vagina. She turned the vibrator on demonstrating how to use it by rubbing it on her vagina in front of N1. She gave N1 the vibrator and he rubbed it on her vagina as directed, for five to 10 minutes while she giggled. The appellant had an orgasm in front of N1, an event which he described as a seizure.
- Count 7: on another day in the same holidays, N1 and the appellant were in the living room, watching television and talking about cats. The appellant was on the couch and N1 was on the floor. The appellant said “I might get a new pussy” … “On the subject of pussies, have you ever fingered anyone?” N1 replied “Yuk, no”. The appellant told him “Today is your lucky day”. She grabbed his left hand and pulled him into a standing position. She pushed his thumb, ring finger and little finger down, pinched his index and pointer fingers together, and pushed them inside her vagina. She moved his fingers in and out of her vagina for a short time, before saying “You can do it now”. N1 stood over the appellant and continued to penetrate her vagina with his fingers for 10 minutes as she “got more wet”. He told her he wanted a drink, walked out and did not return. He told SON, “Your mum just made me finger her”.
- Count 8: on another occasion, the appellant took N1 and SON to a creek near their grandparents’ property. The appellant took the children downstream, away from the public bridge. The appellant told both children they “had to finger her”. SON told the appellant “fuck off” and swam away. The appellant was wearing a baggy top and a black bikini bottom. She lay on her back on the creek bed, pulling her bikini bottom to the side, and told N1 to “finger her”. N1 inserted two fingers into the appellant’s vagina and moved them in and out for five to 10 minutes, before he ran away to swim with SON. The appellant called out to SON “it’s your turn now”, to which he responded “fuck off”.
- Count 9: two to three days later the appellant drove N1 and SON to a creek. The appellant sat on a sand island in the middle of the creek out of view of the public. SON went to make a dam in the creek while N1 sat on the rocks between the appellant’s legs. The appellant was wearing a one-piece swimsuit and baggy shorts. She removed her shorts and pulled the crotch of her swimsuit to the side. N1 inserted two fingers into the appellant’s vagina. He moved them in and out for five to 10 minutes. He then got up and ran away to play with SON. The appellant laughed.
- Count 10: a few days later the appellant, N1 and SON were at the family farm. The appellant’s mother was in the kitchen, SON was in the lounge room and the appellant and N1 were in a bedroom lying on a queen bed. The appellant was playing on her phone and N1 was watching. The appellant grabbed N1’s right hand and put it down her pants, inside her underwear. N1 inserted his three middle fingers into the appellant’s vagina and moved them in and out for 10 to 15 minutes. The appellant laughed and continued playing games on her phone while this happened. N1 then left the room. The appellant called out for SON, but he walked out of the house with N1.
- Count 11: during the same school holidays the appellant and SON stayed with N1 and his mother, at their unit, for one night. N1’s mother went to have a shower. N1, SON and the appellant lay on the bed together with the bedroom door open. The appellant grabbed N1’s hand and put it inside her pants on the outside of her vagina. N1 pulled his hand away and left the room. The appellant laughed.
- Count 12: when N2 was 10 years old the appellant told him that she had a job involving talking about sex on the phone to people while she used sex toys on herself if the clients asked her to. She told the children to be quiet while she was on the phone doing this. When N2 was 12 she told him that her new job was with clients who attended her house for a massage. She told N2 she would give the clients a “happy massage” for up to $300. The appellant took these clients into a bedroom which contained sex toys and a lubricant. She told the children to go out the back and be quiet. In July 2017 (when N2 was 14 or 15 years old) the appellant was driving in the car with N1, N2 and SON. The appellant gave N2 a brown paper bag containing a sex toy known as a pocket vagina and a little bottle of personal lubricant. She told him it was his birthday present.
- Count 13: on a weekend in November 2018, N3 (then aged nine) and SIS (then aged six) were at the appellant’s house, in the living room. The appellant produced a bag of lollipops and told SIS that she could have some if she took out the bins. She went outside to do so. The appellant told N3 to put the lollipops up his anus. She told him that she would “expose him on Facebook” if he did not comply. The appellant handed N3 five lollipops. He took three and went to the bathroom. He removed his clothes, squatted down, spread his buttocks with his left hand, and used his right hand to insert the three lollipop heads into his anus. The wrappers were still on the lollipops. The sticks protruded from his anus. N3 walked into the living room naked, and showed the appellant the lollipop sticks. She told him to sit on the floor. He was concerned that it would hurt, but did as he was told. He stayed naked in the living room with the lollipops inside his anus for approximately one hour. He later removed them and threw them in the bin. He stayed at the appellant’s house that night and went home the following day.
- Count 14: one week after the lollipop incident, and still in November 2018, N3 was at the appellant’s house visiting for the day. N3 and SON were asleep in the appellant’s bed in the afternoon. The appellant woke N3 and told him to put his penis in her anus. She took him to the spare bedroom where they both lay on a single bed. The appellant was wearing a nightgown with no underwear. She directed N3 to stand up and she removed his shirt and shorts. The appellant lay on her stomach and pushed her anus into the air. N3 knelt behind her and penetrated her anus with his erect penis. N3 moved his penis in and out of the appellant’s anus for 30 minutes, before the appellant told him to stop. She rolled onto her back and told N3 to sit on her chest, and he complied. The appellant sucked N3’s penis for 20 to 30 minutes. At the appellant’s direction N3 moved his body back and forth towards the appellant’s mouth during that time. His penis was flaccid. The appellant then told him to stop. She told him not to tell anyone, saying it was “top secret”. N3 asked to go home, and the appellant drove him there.
- On 7 January 2019, N1 and N3 disclosed some of the offending to their parents. On 9 January 2019 they provided statements to the police. Between them, N1 and N3 disclosed the offending in Counts 1-7, 13 and 14.
- Police attended the appellant’s house where they located SON alone. He was taken to the police station and provided a statement, denying any sexual activity between the appellant and himself, or the appellant and the other children. Police searched the appellant’s house and located a large amount of sex toys, relevantly including: the double-ended dildo, a packet of lollipops, a black G-string and a white vibrator.
- N1 participated in a pretext telephone conversation with the appellant. In it the appellant made admissions to giving N1 a “hand job” while SON was present in the room. She told N1 “remember the rule, what happened at [my house] stays at [my house]”. She told N1 not to tell his girlfriend what happened in the family. She told him “If you mentioned what happened with you, me and [SON], I can get in trouble for that. You have to keep your mouth zipped. I did it for you as an Aunty”.
- The appellant was arrested but declined to participate in an interview. She was remanded in custody and SON was placed into emergency residential care. The appellant was later released on bail.
- On 22 January 2019, N2 provided a statement to police where he disclosed Count 11. On 23 January 2019, N1 participated in a second statement where he disclosed further offending (Counts 10-11). On the same day SIS provided a statement to police about Count 13. On 30 January 2019, SON participated in a second statement where he continued to deny any sexual offending by the appellant, saying N1 was lying and expressing a wish to return home to live with the appellant. On 28 March 2019, N3 participated in a second statement where he disclosed Count 14.
Approach of the sentencing judge
- The learned sentencing judge commenced by noting the plea of guilty to the various offences and the maximum punishment applicable under each. For the offences of indecent treatment of a child under 12 and a lineal descendent, 20 years’ imprisonment was the maximum. The same was the case for the nine counts of indecent treatment of a child under 16, and under care. The two counts of rape attracted a maximum punishment of life imprisonment.
- His Honour then reviewed the circumstances of the offending, drawn largely from the agreed schedule of facts. However, his Honour noted that the offending escalated over time, continuing with Count 13 (the lollipop incident) and Count 14 (rape).
- The learned sentencing judge referred to the pretext call in which admissions were obtained, but also the appellant’s reassertion that there was to be no disclosure of the offending. His Honour then referred to the fact that the appellant characterised herself as being “tricked by the child during the course of that call”.
- The learned sentencing judge noted the appellant’s age, as 41 to 44 at the time of offending, and 45 at sentencing. The nature and seriousness of the offending was said to be “plainly obvious”, involving as it did, a number of complainants, their ages and relationship with the appellant, the breach of trust involved and the time period during which the offending occurred. His Honour specifically noted the ages of the complainants, ranging from nine to 14.
- The learned sentencing judge characterised the offending in this way:
“Your offending was secret and concealed using multiple methods to decoy as well as bonds of secrecy with threat of trouble or not allowing them to return. Your coercion was subtle, marked by manipulation, predatory grooming behaviour. In respect of the youngest, the nine year old the subject of the most serious of the offending, you threatened to expose him on Facebook, demonstrating an elevated level of emotional blackmail and threat in that way.”
- Referring to aspects of the offending, namely penetration both digital and penile, and the maintenance of the offending over the period of the indictment, the learned sentencing judge said the offending “constitutes the most vile conduct towards young and vulnerable children, here boys”. His Honour went on to refer to the impact upon the children who, through their mothers, described the impact upon them. That included a decline in mental health, behavioural changes, anxiety, self-harm and attempted suicide. As well, graphic descriptions of the impact upon the families was proffered.
- The learned sentencing judge then turned to the personal background of the appellant. This included her difficulties when growing up and the matters in the psychological and medical reports, in particular exhibit 8.
- His Honour then referred to the lack of any relevant previous criminal history, noting a subsequent drug offence in 2019. Further, notwithstanding the appellant’s difficulties when growing up, she had managed to maintain employment qualifications and had a good work record. As well, she had been the recipient of a Duke of Edinburgh Award and multiple certificates for charitable and volunteer work.
- The learned sentencing judge then referred to the core findings of the psychological report, including: the appellant’s personal struggles to come to terms with her own state of being; the late gaining of an understanding of her own impaired functioning; an assessment of borderline levels of cognitive functioning; her meeting the criteria for adjustment disorder and mixed anxiety and depressed mood, as well as Autism Spectrum Disorder; the impact upon the appellant’s decision making; and impaired ability to understand social situations and cues. His Honour then said:
“But you did know what was right and wrong, and you acknowledge that you have done something wrong, and that it will cause problems for the boys, even though, it seems to me, in a relatively shallow way, as you come to terms with all of these matters. You are embarrassed, ashamed. You show your guilt and remorse in ways which others may not appreciate as a manifestation in the best that you can, still being confused about a number of aspects of the case, indeed, including the nature and extent of your offending.”
- Having referred to those matters and by reference to the reports written about the appellant, the learned sentencing judge said he was “guarded about your prospects of rehabilitation”. Further, his Honour concluded it was difficult to gauge the appellant’s risk of reoffending, though it was clear that she had avoided trouble but for the drug matters.
- His Honour then referred to the factors being taken into account, including: the 83 days of pre-sentence custody; the necessity to punish to a just extent in all the circumstances; the need to facilitate rehabilitation; personal and general deterrence, and community denunciation; the need to protect children and others in the community; the timing of the plea of guilty and that co-operation with the administration of justice; and the absence of any exceptional circumstances which would warrant a non-custodial sentence.
- The learned sentencing judge then referred to the cases that had been urged as providing yardsticks, namely R v BCW, R v KAJ; Ex parte Attorney-General (Qld), and R v BBP. His Honour then pronounced the sentences including, relevantly, nine and a-half years’ imprisonment for Count 14 (rape). His Honour then explained:
“The way that I have set your sentences to have regard to the totality of your criminal behaviour to work out what all of the sentences would add up to in order to impose a just and appropriate sentence, and one that is not improperly crushing or disproportionate, I have looked at each of the offences, having regard to their nature and extent and the children involved. Having approached your sentence in that way, you will serve them concurrently. That is, they will all overlap, which means you will have a head sentence of nine and a-half years of imprisonment. In doing so, I have also taken into account and applied an appropriate discount, I think, to your plea of guilty in respect of all of your offending.”
- Finally, the learned sentencing judge noted, albeit in the context of consideration of a parole eligibility date, the greater impact of imprisonment upon the appellant than would be the case for other prisoners.
Consideration of the challenge to the sentences
- It is convenient to first deal with the specific grounds alleging error.
Count 14 – taking into account uncharged acts
- The appellant contended that the sentence for Count 14 was made in error because the learned sentencing judge took into account uncharged acts. The basis of this contention was in the recitation of the facts in the agreed schedule, concerning Count 14. As reflected in paragraph  above the recitation of facts included those with respect to the offence of rape, completed upon penetration of the appellant’s anus by N3’s penis. The recitation continued with the facts following the cessation of the anal penetration. The essence of these facts was that the appellant lay on her back with N3 sitting on her chest, and the appellant sucking N3’s penis for a period of time.
- The contention advanced was that the allegation of oral sex in relation to Count 14 could not stand as a particular of rape and was, in effect, an uncharged act which was taken into account in aggravation of the sentence. It was contended that there was a real risk that the learned sentencing judge considered the allegation as a distinct particular of the rape.
- In my view, these contentions should be rejected for a number of reasons.
- First, the reference to the oral sex is contained only in the agreed schedule of facts. The indictment contained no such allegation, preferring only a charge of rape by the appellant on N3. The addition of the facts concerning the oral sex were merely the context in which Count 14 occurred. It was appropriate for the purposes of sentencing that the offences be seen in the proper context. That occurred with Count 1 in particular, but otherwise with most counts where the facts were concerned with much more than the mere recitation of the conduct satisfying the elements of the offence.
- Secondly, the fact that the learned sentencing judge mentioned the oral sex in the recitation of Count 14 in the course of the sentencing comments does not mean that his Honour was sentencing on the basis of an uncharged act, or misapprehended that it was a particular of the rape. His Honour was merely summarising what had been agreed were the facts relevant to each count.
- Both the indictment and the schedule of facts identified s 349(2)(a) of the Criminal Code (Qld) as the provision defining the offence. Relevantly, the offence involved the appellant having carnal knowledge with or of N3. The term “carnal knowledge” is relevantly defined in s 6 of the Criminal Code which provides that if it is used to define an offence, the term includes anal intercourse and the carnal knowledge is “complete on penetration to any extent”. The learned sentencing judge cannot be shown to have misapprehended the nature of the offence the subject of Count 14.
- Thirdly, that the learned sentencing judge understood that Count 14 was confined to the allegation of anal penetration, and no wider, is supported by his Honour’s comments in characterising the offending:
“Your offending did involve penetration, as I have described variously: digital with an object and even penile penetration of your anus by the nine year old without protection.”
- Any suggested misapprehension would likely have seen a reference to the oral sex at that point. There was none.
Parole eligibility date – irrelevant considerations
- A further contention was that the learned sentencing judge erred by taking into account irrelevant or incorrect considerations when exercising the discretion in respect of a parole eligibility date.
- This contention centred upon the following comments by the learned sentencing judge in the sentencing remarks:
“I am also required to consider setting a parole eligibility date. Again, I look at your plea of guilty, the cooperation you provided in bringing the matter to a conclusion, your otherwise good character marred horrifically by your offending here, the impact that imprisonment would have upon you, particularly given your current state of mental wellbeing and the circumstances spoken of you in medical reports, as well as your state as a protected prisoner, already a matter which has affected your incarceration, both before sentence and then later in another facility. It seems to me that, whilst the Corrective Services and prison facilities will be harder on you, they will be able to manage your circumstances.
I also take into account the relative lack of insight into your offending and your attitude towards it, such that I am unable to properly assess your risk of reoffending. It seems to me that it is appropriate that I do not set a parole eligibility date, and this is a case that it is appropriately left to those who are expert and can guide as to the appropriate programs and other matters going to the assessment of eligibility. Your eligibility for release will be assessed in due course by the parole board.”
- It was contended that referring to the role of experts, who could guide as to appropriate programs, revealed an error because it is the Court that is required to set a parole eligibility date rather than experts, such as those on the parole board who consider a parole release date.
- In my view, the criticism is unwarranted. The learned sentencing judge took into account the matters raised in the pre-sentence report, in which opinions were expressed as to the appellant’s level of cognitive functioning, the existence of an adjustment disorder with mixed anxiety and depressed mood, and whether the criteria for autism spectrum disorder was met or not on testing. Having referred to the essential findings of that report, his Honour expressed the view that he was “guarded about [the appellant’s] prospects of rehabilitation”, and found that it was difficult to gauge the risk of reoffending. Those matters were part of the considerations that led his Honour to conclude that imprisonment would have an added impact for the appellant as opposed to other prisoners. In light of those matters, and what his Honour found to be the “relative lack of insight into your offending”, his Honour held that he should not set a parole eligibility date. The comments which follow that can be seen merely as an observation that the appellant’s eligibility for parole would eventually be assessed by those who are expert in that area. The comment does not suggest that his Honour surrendered the discretion that was reposed in him in respect of whether to set a parole eligibility date or not. It was, in context, merely a comment that whatever the parole eligibility date was, actual eligibility would be assessed by experts at the time.
Sentences manifestly excessive
- The submission otherwise was that the sentence imposed on Count 14 was manifestly excessive having regard to comparable authorities. The challenge was specifically confined to Count 14, as the appellant did not challenge the appropriateness of the terms of imprisonment on Counts 1-12.
- There is one initial difficulty confronting this contention. In the course of submissions at the sentencing hearing the Crown contended for a head sentence of nine and a half years. That submission was accompanied by reference to the decisions of this Court in R v KAJ; Ex parte Attorney-General (Qld), R v BBP and R v BCW.
- The submissions made by the solicitor appearing for the appellant at the sentencing hearing accepted two things. The first was that but for the plea of guilty the appellant was at risk of receiving a sentence of 10 years or more. The second was that a head sentence of nine years would be appropriate. True it is that the appellant’s solicitor contended for a parole eligibility date at only two and a half years, but it was accepted that the head sentence could appropriately be nine years’ imprisonment, a figure not far removed from the sentence actually imposed.
- The mere fact that the sentence imposed is different from other sentences, and even markedly different from other sentences, does not establish that it is manifestly excessive. In order to establish that a sentence is manifestly excessive, this Court must be satisfied that there “must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. As was said by this Court in R v MCT:
“To succeed on an application based on manifest excess, it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is “unreasonable or plainly unjust”. Consistently with the accepted understanding that there is no single correct sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.”
- It is well established that the sentencing process is one of instinctive synthesis and not the result of a mathematical exercise but rather the balancing of different factors in order to reach a single sentence. It is also well established that there is no single correct sentence, but rather a range of possible sentences can, in any given case, be said to have been warranted. That is the reason why the question of manifest excess is not satisfied if all that is shown is that the sentence imposed is different, even markedly different, from sentences in other cases. Unless the difference is such that there has been an obvious misapplication of principle, or the sentence is unreasonable or plainly unjust, it will not be held to be manifestly excessive.
- Equally, it is the case that whilst comparable authorities might assist in understanding how factors should be treated, they are not determinative of the outcome and do not set the bounds of initial permissible sentencing discretion with particular numerical precision.
- Counsel for the appellant urged a considerable number of authorities, arranged in a cascading order relating to the period of imprisonment imposed, in an attempt to establish that the sentence imposed here was manifestly excessive. Many were cases involving the offence of maintaining a sexual relationship with a child. In my view, it is only necessary to refer to several of them in order to resolve this issue.
- R v EK involved sentences of 10 years imposed in respect of two counts of maintaining a sexual relationship with the offender’s step-daughter. There were other sentences imposed for offences of incest and indecent treatment against that child. In addition there were offences for maintaining a sexual relationship and indecent treatment of a second child complainant. The offender was aged between 52 and 58 during the offending, and 65 at sentence. He had no criminal history but an extensive history of physical and psychological problems including hypertension, a history of strokes, epilepsy, obstructive sleep apnoea, a significant loss of nerve function in one leg and a lesser loss of function in the other, and a depressed immune system. He also suffered from Post-Traumatic Stress Disorder and had a history of cerebrovascular disease.
- The offending against one complainant extended from when she was 13 to when she was 16. It commenced with kissing, progressed touching of her breasts and concluded with incidents of licking and rubbing her vaginal area. On one occasion he used a vibrating massager on her breasts and vagina, and on another subjected her to oral sex.
- The offending in respect of the other complainant (his step-daughter) extended between the ages of 11 and 19, though he was not charged with any offence after she turned 16. This included touching her sexually on the outside of her clothing, then underneath it, kissing her, touching her breasts, putting his fingers down her pyjamas to her genitals and having her touch his erect penis. It also included having her masturbate him and perform oral sex to the point where he would ejaculate in her mouth, performing oral sex on her, and full sexual intercourse. The intercourse occurred “probably once a month” but more frequently on holiday periods.
- After a review of a series of authorities including R v BBM, R v HAA and R v GQ, this Court reduced the sentences to nine years, substantially because the nature and the extent of the offender’s physical ailments were such that imprisonment would be “a far greater burden” on him than on others. This Court took the view that BBM, HAA and GQ supported the imposition of the 10 year sentences, although they were described as being “at the higher end of the established range”. In order to understand that, reference to some comments need be made about those authorities.
- In BBM, a 10 year sentence was imposed for one count of maintaining an unlawful relationship of a sexual nature with an adopted daughter, then a child under 16 years, and eight counts of incest. The offender was aged between 48 and 59 at the time of offending, and 63 when sentenced. He had no prior criminal history and was diagnosed with Parkinson’s Disease before being sentenced. He was remorseful and co-operated with the administration of justice by making admissions. The maintaining period commenced when the complainant was eight, and involved kissing, touching of breasts when she was 10, occasionally the placing of her hand on his penis and then increased touching and masturbation. The offending continued with sexual intercourse on three occasions when she was 14, and cunnilingus on three occasions before she was 16. In that case, the 10 year sentence, with the accompanying serious violent offence declaration, was considered appropriate.
- In HAA, the sentence was imposed after a trial. The convictions were for maintaining an unlawful sexual relationship, one count of rape and 15 counts of unlawful carnal knowledge. The sentence was 12 years’ imprisonment. The maintaining period commenced when the complainant was nine, and a granddaughter of the offender’s de facto. It continued for about four years during the course of which there was regular sexual intercourse. The rape offence was committed by placing the offender’s penis in her mouth. The relationship was maintained by threats that if she told anyone her grandmother would be left in need of support. The offender was aged between 50 and 55 years and had a previous conviction for indecent dealing. This Court dismissed the application for leave to appeal.
- In GQ, a head sentence of 10 years was imposed on a plea of guilty to the offence of maintaining a sexual relationship with circumstances of aggravation, namely rape and unlawful carnal knowledge over a six year period. There were also pleas of guilty to two counts of indecent dealing, two counts of rape and one of indecent assault. The offender was 34 when sentenced and between 23 and 30 during the offending. The complainant, who was the offender’s niece, was aged between 10 and 16 at the relevant times. The offending included indecent touching, oral sex and sexual intercourse. That head sentence was found to be not manifestly excessive.
- Whilst the offending may have extended over a longer period of time in each of EK, BBM and GQ, in each of those cases there were a lesser number of child victims. The offenders in each case were mature, and with little by way of criminal histories. The offenders were remorseful and, in the case of BBM and EK, had physical ailments by way of mitigating factors. Not surprisingly the offending in each case was accompanied by forms of threats or emotional coercion and blackmail. Equally unsurprising is the fact that there was psychological harm to the complainants in each case.
- EK and GQ were analysed in R v CCK, where this Court refused to interfere with a 10 year sentence for maintaining, where the offences were committed against two daughters, aged nine to 11 and 11 to 15. There is no need to rehearse the details of CCK, but it also considered R v WBG, a case where maintaining offences were committed against two of three daughters aged between six and nine, the third being the victim of indecent treatment. The period of offending was three months, and involved anal penetration of child one, oral sex by child two, and touching and rubbing. The offender pleaded guilty and had no relevant criminal history. Leave to appeal against the 10 year sentence was refused. Whilst it was a case where this Court merely found that the sentence was not manifestly excessive, nonetheless it is another example where offending of a similar order to that here has attracted sentences at or even higher than that imposed on the appellant.
- Comparability does not depend upon numerical equivalence of the offending acts, or the period of time over which they occurred. A shorter period of offending can be balanced against the greater number of victims or the more pernicious nature of the offending. That said, it is a depressing reality in all of these cases that the offending is inevitably a degrading set of acts which corrupts young children, causing them and their families distinct psychological harm. So it is in the present case.
- In R v SAG, this Court listed significant matters that substantially increased a sentence for an offence of maintaining a sexual relationship as including:
“• a young age of the child when the relationship thereafter maintained first began;
• a lengthy period for which that relationship continued;
• if penile rape occurred during the course of that relationship;
• if there was unlawful carnal knowledge of the victim;
• if so, whether that was over a prolonged period;
• if the victim bore a child to the offender;
• if there had been a parental or protective relationship;
• if the offender was being dealt with for offences against more than one child victim;
• if there had been actual physical violence used by the offender; and if not whether there was evidence of emotional blackmail or other manipulation of the victims.”
- Many of those factors are present in the appellant’s case, particularly those identifying rape, multiple victims, the relationship to the victims, and the presence of threats or emotional blackmail.
- Reference to BBM, GQ and EK justifies the comments that have been made from time to time that there is a broad range for offences of this type of conduct, from seven years to 13 years, with some exceptional cases justifying sentences in excess of 13 years.
- R v DBC; Ex parte Attorney-General (Qld) involved an Attorney’s appeal against a nine year sentence imposed on a plea of guilty to one count of maintaining an unlawful relationship with the offender’s daughter, two counts of indecently dealing with her and six counts of rape. The offender was aged between 32 and 34 at the time of the offending and had no previous criminal history. The complainant was 11 or 12. The offender suffered psychological difficulties as a result of the loss of his wife and had an impaired capacity to understand the nature of his offending. He appeared remorseful and ashamed. His offending came to light after the child made a complaint, and when interviewed by police admissions were made and information volunteered about additional offending conduct. Those admissions enabled convictions on the two indecent treatment counts, and two rape counts.
- The offending conduct consisted of sexual intercourse once or twice a week over a maintaining period of about 17 months. The conduct also included rubbing of the vaginal area, digital rape and cunnilingus.
- After a review of authorities this Court declined to interfere, concluding that the nine year sentence was within the range of sentences that could have been imposed by the exercise of a sound sentencing discretion.
- DBC is of some assistance here. Plainly, there was only one victim and a more prolonged period of offending. However, the sentence was affected by psychological matters and impaired capacity, as well as the co-operation by way of admissions which permitted the bringing of extra charges.
- R v Auer; Ex parte Attorney-General (Qld) was an appeal against an effective sentence of seven years on a plea of guilty to 16 sexual offences. The offending extended over four months and there were six female children as victims. The offences were maintaining a sexual relationship with a child, five counts of indecent treatment of a child under 12 and in care, five counts of rape and five counts of indecent treatment of a child under 12. The children were aged from five years through to nine years. The offending conduct involved touching the vaginal area, having one child touch his penis, and both digital and anal rape in the case of two of the six victims.
- The offender was 31 when he committed the offences and had a “disturbing criminal history of sexual and other offending”. He was described as a recidivist offender, lacking insight into his conduct. There was extensive co-operation and admissions, such that the offender’s own admissions enabled 12 of the 16 counts to be brought. Thus, there was a significant component of the type of co-operation as a mitigating factor recognised in AB v The Queen.
- This Court reviewed various authorities including that of R v Byrnes; Ex-parte Attorney-General (Qld). In that case a mature offender (58 to 59 years old) pleaded guilty to offences committed upon 13 girls in his grade 4 school class. The offending persisted over a 23 month period and consisted of touching under and outside the girls’ clothing, kissing and digital penetration. The offences were of one count of maintaining an unlawful sexual relationship, 10 counts of rape and 33 counts of indecent treatment. The sentence of 10 years, which carried an SVO with it, was not disturbed.
- In Auer, this Court concluded that a head sentence within the range of eight to 10 years was applicable. The sentence was increased to nine years on the maintaining count.
- In my view, Auer lends support to the sentence imposed in the appellant’s case. It concerned multiple victims and a mature offender, and the offender’s poor criminal history (unlike the appellant) was balanced against the extensive cooperation (absent here).
- Finally, reference can be made to R v BCW. There a nine year sentence was imposed on a plea of guilty to 14 counts of sexual offences against three different children, two of whom were the offender’s step-sons, and one of whom was his biological son. The most serious count was of maintaining a sexual relationship with one of his step-sons, when the boy was between the ages of 10 and 14. The charged acts included committing sodomy, indecent treatment, requiring the son to fellate and masturbate him, performing fellatio on the boy, all with a regularity of three times a week. The offending against the other boys consisted of oral sex, fellatio and masturbation. The offender was aged between 31 and 35 at the time of the offending and had an inconsequential criminal history.
- The sentencing judge described the offender’s conduct as involving both sexual and emotional abuse. He had manipulated his son so as to continue with the offending which only ceased when the boy reached an age where he could resist. The conduct involved emotional blackmail and manipulation in a relationship which was quasi-parental.
- After a review of authorities which included BBP, this Court concluded that it would not interfere with the sentence. In the course of the judgment the Court noted that factual comparison between cases in an endeavour to establish a hierarchy of heinousness is not necessarily fruitful. Holmes JA (as her Honour then was) said:
“It need hardly be said that there is no single correct sentence in a case such as this. The sentencing judge had to balance the gravity of the offending against the mitigating circumstances – the appellant’s timely plea of guilty, his lack of relevant convictions, the difficulties of his own children, his uncertainty about his sexual identity and the fact that he exhibited some level of remorse. But having regard to the persistence of the conduct, the abuse of the relationship between H and the applicant, its profound effect on H, and the fact that some of the worse [sic] activities were performed in indifference, at best, to the presence of a young child, I do not consider that it has been shown that his Honour erred in the exercise of his sentencing discretion.”
- Those comments are applicable in the present case.
- Finally, it should also be noted that the learned sentencing judge took the approach approved in R v Nagy, namely by selecting the charge upon which the sentence imposed would reflect the overall criminality of the offending conduct: see paragraph  above. By doing so the appellant received the benefit of avoiding cumulative sentences which may have taken the overall sentence into double figures.
- The fact that the sentence imposed did not set a parole eligibility date does not, in my view, render the sentence manifestly excessive. The learned sentencing judge had regard to the aspects of the psychological report that warranted the conclusion that early release was not necessarily called for. Further, the report did not go so far as to establish any mental condition that reduced culpability, and indeed concluded that the appellant knew right from wrong. Finally, apart from the acts themselves, the offending conduct was accompanied by threats and emotional blackmail, and subsequent efforts to supress the truth by urging the complainants to keep quiet. In my view, it was open to decline to set an early date.
- In my view, it cannot be demonstrated that the sentence imposed was manifestly excessive.
Ex officio indictment - sentence
- As a consequence of the success in respect of the conviction entered for Count 13, two things remain for consideration. The first is the sentence to be imposed on the new count, and the second is whether that new sentence affects the question of manifest excess in relation to Count 14.
- The appellant’s contention was that the new conviction, for indecent treatment of a child under 12 years and under care, should attract a sentence of three years’ imprisonment. Otherwise, that sentence fell to be considered with the others under the heads already dealt with above.
- The respondent contended that the sentence should be greater than three years, but also contended that even if the sentence was less severe than had been imposed for the original Count 13, the result would be no different as the sentence would be subsumed by that imposed on Count 14.
- The facts concerning the conviction on the new count were, in my view, quite serious. N3 was only aged nine at the time, and his six year old sister (SIS) was in the house at the same time. The appellant produced a bag of lollipops, telling SIS that she could have some if she took the rubbish bins out. In her absence the appellant told N3 to put the lollipops up his anus. That was accompanied by a threat to expose him on Facebook if he did not comply. N3 took three lollipops and inserted them in his anus. The degree of compulsion felt by him in response to the threat is demonstrated by the fact that he went into the bathroom by himself to insert the lollipops, and did not take the opportunity to leave or throw them away. Having inserted them he returned to the living room, naked. He showed the appellant the lollipop sticks and she told him to sit on the floor. Notwithstanding that he was concerned that that would hurt, he did as he was told. He then stayed naked in the living room with the lollipops inserted in his anus for about one hour.
- On any view, the appellant’s conduct in forcing N3 into such a degrading act was a despicable breach of trust, carried out under threats and in circumstances where the six year old sister was likely to be in a position to see the outcome.
- In my view, the fact that the maximum sentence for indecent treatment under those circumstances is 20 years, rather than life imprisonment which was applicable to the original rape count, makes little difference to the overall criminality of the conduct. It is that which, in my view, warrants the imposition of a sentence of three years’ imprisonment.
- That sentence gains some support from SAH, where an offender pleaded guilty to one count of rape by insertion of a finger or fingers in the anus of a three year old boy, then in his care. Though he was young (19 at offending and 21 at sentence) he had a poor criminal history involving violence. SAH was decided just after the maximum for rape had been increased to life imprisonment. After reviewing authorities from before the increase, including R v M, R v Richardson and R v K, the original five year sentence was reduced to one of three years.
- On the second point, I accept the respondent’s submission that there is no good basis to consider that the change in the offence or sentence has any impact upon the question of penalty on Count 14. The objective seriousness of the conduct is the same.
Conclusion and orders
- The orders concerning the setting aside of Count 13 were made on the hearing of the appeal on 8 April 2020. Thus, the appeal against conviction on Count 13 was allowed, the conviction set aside, leave was granted to the appellant to withdraw her plea of guilty on that count, and on the appellant’s plea of guilty to the new count, the appellant was convicted of indecent treatment of a child under 16, under 12, under care.
- For the reasons given above I propose the following further orders:
- On the count contained in the ex officio indictment presented on 8 April 2020, sentence the appellant to be imprisoned for a period of three years, to be served concurrently with the sentences imposed on 9 December 2019.
- The application for leave to appeal is refused.
- BODDICE J: I agree with Morrison JA.
- WILLIAMS J: I have read the reasons of Morrison JA and agree with those reasons and the orders his Honour proposes.
For ease of convenience I intend to refer to the appellant by that name, even though she was an applicant for leave to appeal in respect of the sentences.
Appeal Book (AB) 49 lines 23-28.
The psychological report obtained for the purpose of sentencing.
AB 51 lines 27-33.
 QCA 340.
 QCA 118.
 QCA 114.
AB 52 lines 35-43.
AB 49 lines 30-32.
AB 53 lines 1-17.
AB 51 lines 35-40.
Highlighting the passage referred to.
Appellant’s outline on appeal, para 20.
 QCA 118.
 QCA 114.
 QCA 340.
Wong v The Queen (2001) 207 CLR 584 at .
Wong at .
 QCA 189 at ; internal footnotes omitted. See also R v Eaton  QCA 147.
Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58 at .
Hili v The Queen (2010) 242 CLR 520 at -; Kentwell v The Queen (2014) 313 ALR 451 at .
R v Goodwin; Ex parte Attorney-General (Qld)  QCA 345 at ; Barbaro at ; R v MCT  QCA 189 at .
 QCA 278.
 QCA 162.
 QCA 55.
 QCA 53.
R v EK at .
 QCA 237 at -.
 QCA 284.
 QCA 286 at .
R v KAI  QCA 378 at page 3; R v DBC; Ex parte Attorney-General (Qld)  QCA 203 at .
 QCA 203.
 QCA 222.
(1999) 198 CLR 111, 155;  HCA 46.
 QCA 40.
 QCA 340.
BCW at .
BCW at .
 QCA 175;  1 Qd R 63.
Referring to R v MAI  QCA 36 and R v SAH  QCA 329 at -.
 QCA 443.
 QCA 166.
 QCA 521.
SAH at -.
- Published Case Name:
R v RBC
- Shortened Case Name:
R v RBC
 QCA 99
Morrison JA, Boddice J, Williams J
12 May 2020