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R v Stable (a pseudonym)

 

[2020] QCA 270

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stable (a pseudonym) [2020] QCA 270

PARTIES:

R

v

STABLE (a pseudonym)

(applicant)

FILE NO/S:

CA No 326 of 2019

DC No 50 of 2019

DC No 87 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maryborough – Date of Sentence: 21 November 2019 (Reid DCJ)

DELIVERED ON:

4 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2020

JUDGES:

Sofronoff P and Fraser and Philippides JJA

ORDER:

Leave to appeal is granted and the disposition of the appeal is adjourned to a date to be fixed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to 20 offences – where the offences were committed over three periods of time – where during the first period, between 1985 and 1989, the applicant committed three sexual offences against his daughter, who was then a child – where during the second period, from January 2012 to December 2014, the applicant committed four offences against two of his granddaughters – where during the final period, between September 2016 and October 2017, he committed twelve sexual offences against his daughter and all three of his granddaughters – where there was also an isolated sexual offence which he committed against his daughter between 31 July 2008 and 1 January 2009 – where circumstances of aggravation were alleged, including the applicant’s knowledge that the victims were the applicant’s lineal descendants, that the victims were under the applicant’s care and that the offences were domestic violence offences – where on indictment 1, the sentences for counts 1, 2 and 3 were to run concurrently – where the sentences for counts 4 and 5 were to be served concurrently with each other but cumulatively upon the sentences for counts 1, 2 and 3 – where all sentences for the offences on indictment 2 were to be served concurrently with each other but cumulatively upon the sentences imposed on indictment 1 – where the result was an accumulated sentence of 12 years – where the learned sentencing judge opined that the total term of 12 years’ imprisonment would engage the Serious Violent Offence provisions of the Penalties and Sentences Act 1992 (Qld) which would require the applicant to serve 80 per cent of his term of imprisonment before becoming eligible for parole – where not all of the offences for which the applicant was sentenced were scheduled offences – whether the Serious Violent Offence provisions were erroneously effected in the Verdict and Judgment Record – whether the sentence should be set aside

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant contends that the learned sentencing judge impermissibly took into account certain uncharged acts that were included in the Statement of Facts –whether the learned sentencing judge acted on the wrong principle – whether the sentence should be set aside

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant’s first period of offending carried significantly lower penalties than the offences committed against his adult daughter and granddaughters more recently – where there have been substantial legislative changes to the sentencing regime for offenders who have committed sexual offences against children – where the maximum penalties have been increased in the Criminal Code (Qld) – where circumstances of aggravation have been added into the Criminal Code (Qld) – where the sentencing provisions in s 9 of the Penalties and Sentences Act 1992 (Qld) have changed significantly, the principle that a sentence of imprisonment should only be imposed as a last resort has been displaced and there are additional factors that should be taken into account primarily by the sentencing judge, which focus on the effect of the offending on the child and the protection of the child victim and future victims – where these amendments were the result of a joint Queensland Crime Commission and Queensland Police Service inquiry into child sexual abuse – where counsel below and on appeal relied upon, as comparable, cases that had been decided prior to these legislative amendments – whether these cases were comparable – whether the sentence imposed was manifestly excessive or inadequate

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – POWERS OF APPELLATE COURT – POWER TO SUBSTITUTE VERDICT OR SENTENCE – where the Court of Appeal intends to grant leave to appeal but the Court has indicated to the applicant that the power conferred by s 668E(3) of the Code to increase a sentence might be exercised – where the respondent made it plain in his outline of submissions that a 12 year sentence would be put forward – whether the applicant should be given an opportunity to abandon his appeal

Corrective Services Act 2006 (Qld), s 182(2)(a)

Criminal Code (Qld), s 210, s 222, s 352, s 668E

Criminal Law Amendment Act 1997 (Qld), s 210

Criminal Law Amendment Act 2000 (Qld), s 24

Penalties and Sentences Act 1992 (Qld), s 9(2), s 9(4), s 9(6), s 160D, s 160E, s 160F, s 160H, s 161A, s 161C

Sexual Offences (Protection of Children) Amendment Act 2003 (Qld)

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, considered

Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, applied

R v AAR [2014] QCA 20, distinguished

R v D [1996] 1 Qd R 363; [1995] QCA 329, applied

R v EO [2019] QCA 145, distinguished

R v K [1999] QCA 41, distinguished

R v Kilic (2016) 259 CLR 256; [2016] HCA 48, considered

R v LA; Ex parte Attorney-General (Qld) [2000] QCA 123, considered

R v Lacey; Ex parte Attorney-General (Qld) (2009) 197 A Crim R 399; [2009] QCA 274, cited

R v LS [2006] QCA 354, distinguished

R v MAO; Ex parte Attorney-General (Qld) (2006) 163 A Crim R 63; [2006] QCA 99, considered

R v P [1998] 2 Qd R 191; [1997] QCA 453, distinguished

R v PAC [2006] QCA 327, distinguished

R v PAQ [2014] QCA 11, distinguished

R v Quick; Ex parte Attorney-General (Qld) (2006) 166 A Crim R 588; [2006] QCA 477, considered

R v R [2000] QCA 27, distinguished

R v RAD [2008] QCA 305, distinguished

R v WN [2005] QCA 359, distinguished

COUNSEL:

P Morreau for the applicant

D Balic for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    THE COURT:  The applicant pleaded guilty to 20 offences.  It is necessary to set these out to reflect the applicable time frames in which they were committed.
    1. (a)
      Indictment 1
      1. Count 1:  On a date between 1 June 1985 to 31 December 1987,  indecent dealing with Mary,[1] the appellant’s daughter, who was aged between six years and eight years;
      2. Count 2:  On a date between 1 June 1985 to 31 December 1987,  a second count of indecent dealing with his daughter Mary, who was then aged between six years and eight years;
      3. Count 3:  On a date between 3 February 1988 to 28 February 1989,  attempted carnal knowledge of his daughter Mary, who was then aged between nine years and 10 years;
      4. Count 4:  On a date between 31 July 2008 and 1 January 2009, carnal knowledge of his daughter Mary, who was then aged 29;
      5. Count 5:  On a date between 23 September 2016 and 2 October 2016, indecent assault of his daughter, Mary, then aged 37 years;
    2. (b)
      Indictment 2
      1. Count 1: Between 1 January 2012 and 31 December 2012, wilful exposure to Janet, his granddaughter, then aged about 11 years;
      2. Count 2:  Between 25 August 2013 and 26 August 2014, procurement of Sally, his granddaughter, then aged about 10 years, to commit an indecent act;
      3. Count 3:  Between 1 January 2014 and 31 December 2014, wilful exposure of Janet to an indecent film, his granddaughter, then aged about 13 years;
      4. Count 4:  Between 1 January 2014 and 31 December 2014, wilful exposure of Sally to an indecent film, his granddaughter, then aged about 11 years;
      5. Count 5:  Between 15 September 2017 and 9 October 2017, unlawful procurement of Sally, his granddaughter, aged 14, to commit an indecent act;
      6. Count 6:  Between 15 September 2017 and 9 October 2017, indecently dealing with Sally, his granddaughter, aged 14;
      7. Count 7:  Between 15 September 2017 and 9 October 2017, indecently dealing with Sally, his granddaughter, aged 14;
      8. Count 8:  Between 15 September 2017 and 9 October 2017, indecently assaulting Janet, his granddaughter, aged 16;
      9. Count 9:  On 30 September 2017 indecently dealing with Sandra, his granddaughter, then aged nine;
      10. Count 10:  On 1 October 2017, unlawful procurement of Sally, his granddaughter, to commit an indecent act, then aged 14;
      11. Count 11:  On 1 October 2017, unlawful procurement of Janet, his granddaughter, to commit an act of gross indecency without her consent, then aged 16;
      12. Count 12:  On 1 October 2017, indecently assaulted Janet, his granddaughter, then aged 16;
      13. Count 13:  On 1 October 2017 indecent dealing with Sally, his granddaughter, then aged 14;
      14. Count 14:  On 1 October 2017 indecent dealing with Sally, his granddaughter, then aged 14;
      15. Count 15:  On 1 October 2017 indecent assault of Janet, his granddaughter, then aged 16.
  2. [2]
    The offences were committed over three periods of time.  During the first period, between 1985 and 1989, the appellant committed three sexual offences against his daughter, who was then a child.  During the second period, from January 2012 to December 2014, the appellant committed four offences against two of his granddaughters.  During the final period, between September 2016 and October 2017, he committed twelve sexual offences against his daughter and all three of his granddaughters.  That leaves the isolated sexual offence which he committed against his daughter between 31 July 2008 and 1 January 2009.  In relation to the majority of the offences, circumstances of aggravation were alleged.  They included the applicant’s knowledge that the victims were the applicant’s lineal descendants, that the victims were under the applicant’s care and that the offences were domestic violence offences.
  3. [3]
    It is necessary to set out the facts that constitute the offending.  The following is taken from the sentencing remarks of Reid DCJ:

“Count 1 involves you having your young daughter rub your penis on the outside of your clothes, then exposing your penis and masturbating in front of her until you ejaculated.  Your – you then counselled, but didn’t threaten her, to keep it secret.  Count 2 involved you, on another occasion, rubbing her vagina on the outside of her underwear.  Count 3 was a serious offence of attempted incest.  When she was only about nine years of age, she was pretending to be asleep.  You pulled the sheet off her and had her remove her shorts and underwear.  You then lay on top of her, attempting to force her legs apart and to force your penis into her vagina.  To her credit, she struggled, and you were unable to do so.  The maximum penalty for all of those three offences is seven years imprisonment.

Counts 4 and five were much later in time.  In 2008, when she was 29, and 2016, when she was 37.  She had, by that time, married and had three daughters, born in August 2001, August 2003 and July 2008.  Count 4, an offence of incest, carries a maximum penalty of life imprisonment.  Count 5, sexual assault, a maximum of 10 years imprisonment.

In 2008, your daughter was living with her family in Maryborough, but because her husband worked out of town, she was somewhat dependent on you, especially with transportation.  On the occasion of count 4, she went to her bedroom to get a nappy for a very young baby.  You approached her from behind, grabbed her hips and pulled her to you.  You said you needed sex.  She told you “no”, in no uncertain terms.  You then told her that if she didn’t, you wouldn’t take her anywhere; meaning wouldn’t drive her or pick up or drop off her children.  You then pulled her underwear down, pushed her forward and had vaginal intercourse.  You withdrew before ejaculating onto one of your granddaughter’s nappies.  Some eight years later, in 2016, you feigned an excuse to get your daughter to come to your office.  When she was there, you placed your hand in between her legs, cupping her vagina on the outside of her underwear.  These matters were reported to police only in 2018.  You refused to participate in a record of interview.

The 15-count indictment involves offending between about 2012 and 2018.  It involves offending against three different young girls.  They were all the daughters of your own daughter who I earlier referred to.  They were variously aged between nine and 16 years of age at the time of your offending.  You committed sexual offences against all three of them before they’d reached the age of 11.  Some of the offending, all of which is vile, was less serious.  Some, of course, is more serious.  You watched a pornographic sex tape with two of them when they were 11 and 13; that’s counts 3 and four.  You touched the vagina and breasts of a 14 year old, on the outside of her clothes; counts 6 and seven.  You touched the vagina of a 16 year old underneath her clothes, making her feel sore; count 8.  You had your nine year old granddaughter see your penis.  You had her straddle you, touching her vagina with your penis on the outside of her clothes.  You asked her to suck your penis.  She, to her credit, but not to yours, refused.  The morning following that incident, that complainant had a seizure and was admitted to hospital.  It was not said that your offending in any way caused that condition, but a consequence of it was that the older two girls were kept at home in your care.  You abused them both, inviting them both to touch your penis, which they declined.  You exposed your penis and put your hands down both the girls’ pants, touching their vaginas.  You also fondled the older girl’s breasts.  They were 14 and 16 at the time.  Later that day, you again put your hand inside the 14 year old’s pants, rubbing the outside of her vagina with your fingers.”

  1. [4]
    The offences of indecent treatment and attempted incest committed against Mary at some time between 1985 and 1989 then each carried a maximum penalty of seven years’ imprisonment.  The offence of sexual assault against Mary committed in 2016 carries a maximum penalty of 10 years’ imprisonment.  One of the offences of incest committed against Mary carried a maximum penalty of life imprisonment.  The offences of indecent treatment of a child under 16 who is a lineal descendant and in the care of the offender, committed against the applicant’s grandchildren between 2012 and 2017, carry a maximum penalty of 20 years’ imprisonment.  The offence of sexual assault committed in 2017 carries a maximum penalty of 10 years.
  2. [5]
    At the sentence hearing before Reid DCJ, the prosecutor adopted Reid DCJ’s observation that there should be cumulative sentences by way of concurrent sentences for counts 1 to 3 on the first indictment, cumulative with concurrent sentences for counts 4 and 5 on the first indictment and cumulative again with concurrent sentences on all counts in the second indictment.  His Honour observed that “the fact that it’s three cumulative ones, if they add up to more than 10, he gets an automatic SVO [Serious Violent Offence]”.  The prosecutor said that that was so.  Defence counsel submitted that a sentence of imprisonment of between five and seven years would be appropriate for the totality of the offending.
  3. [6]
    In accordance with those earlier observations, Reid DCJ imposed the following sentences:

Indictment 1

Counts 1 and 2:  18 months’ imprisonment

Count 3:  five and half years’ imprisonment

Count 4:  three and a half years’ imprisonment

Count 5:  one year’s imprisonment

Indictment 2

Counts 1, 2 and 5:  one year’s imprisonment

Counts 3, 4, 6, 7, 10, 11 and 13:  two years’ imprisonment

Counts 8, 9, 12, 14 and 15:  three years’ imprisonment

  1. [7]
    On indictment 1, the sentences for counts 1, 2 and 3 were to run concurrently.  The sentences for counts 4 and 5 were to be served concurrently with each other but cumulatively with the sentences for counts 1, 2 and 3.  The effect was a cumulative total sentence of nine years.
  2. [8]
    All sentences for offences on indictment 2 were to be served concurrently with each other but cumulatively upon the sentences imposed on indictment 1.  The result was an accumulated sentence of 12 years.
  3. [9]
    The learned sentencing judge’s comment about the effect of the 12 year sentence upon parole eligibility has been given effect as part of the court judgment by an entry in the Verdict and Judgment Record in relation to each offence that “this conviction is declared a conviction for a serious violent offence”.
  4. [10]
    The effect of the making of such a declaration, if one had been made, would have been the postponement of the applicant’s date of eligibility for parole until he had served 80 per cent of the sentence in respect of which the declaration was made.[2]  However, his Honour made no such declaration.  Nor was there any offence for which the applicant was sentenced to imprisonment for 10 years or more so that s 161A of the Penalties and Sentences Act 1992 (Qld) would be engaged with the same effect.
  5. [11]
    Although his Honour thought that the total term of 12 years’ imprisonment would engage the provisions of the Act and which would require the applicant to serve 80 per cent of his term of imprisonment before becoming eligible for parole, that was not the effect of the orders.  Section 161A engages the parole postponement provisions in the Corrective Services Act 2006 (Qld) when an offender is sentenced to 10 years or more or when a declaration is made that an offence is a serious violent offence.  Section 161C prescribes the same effect when an offender is sentenced to more than one term of imprisonment which, cumulatively, result in 10 years or more being served.  However, the provision only has that effect if the offences for which the cumulative sentences, each of which is less than 10 years but which are cumulatively 10 years or more, are all offences listed in Schedule 1 to the Act.[3]  Here, the applicant was sentenced to three years and six months on indictment 1 for a scheduled offence[4] and, on the second indictment, to concurrent terms of imprisonment for scheduled offences[5] which were cumulative upon the sentences imposed for the offences in the first indictment.  The result was an actual cumulative total for all of offences of 12 years, as his Honour intended, but a cumulative total for scheduled offences of only six years and six months.  Consequently, despite the applicant’s having to serve 12 years’ imprisonment his parole eligibility date will not be postponed until he has served 80 per cent of that time.  The sentences were imposed under a misconception of the law.
  6. [12]
    The Penalties and Sentences Act makes provision for the effect upon parole of multiple sentences.  Section 160E(2)(b)(ii) provides that an offender’s parole eligibility date is automatically cancelled when a court imposes a term of imprisonment on the offender for a serious violent or sexual offence.  Section 160H provides:

160H Series of sentences involving terms of imprisonment

  1. (1)
    This section applies if—
  1. (a)
    a court is imposing more than 1 term of imprisonment in a series of sentencing orders; and
  1. (b)
    an order (the first order) made by the court in relation to a term of imprisonment under this division would, because of section 160E, be cancelled in the series of sentencing orders by another order made under this division or by the imposition of another term of imprisonment.
  1. (2)
    It is not necessary for the court to make the first order but, in making an order under this division that has final effect in relation to the series of sentencing orders, the court may only make an order that it could make if it had made the first order.

Example—

O has been charged with 3 offences and found guilty of each. The court sentences O to 2 years imprisonment on charge 1, 1 year’s imprisonment on charge 2 and 2 years and 6 months imprisonment on charge 3, the terms to be served concurrently. It is not necessary for the court to make an order fixing a parole release date for each of the offences. The court may make a single order fixing a parole release date for the resulting period of imprisonment which must not be a date earlier in time than a parole release date notionally fixed under any of the previous orders the court would, apart from this section, be required to make.”

  1. [13]
    The Act assumes that, but for the effect of s 160H, 160E would apply when a judge imposes a series of sentences on the one occasion.  But for s 160H, a parole eligibility date, set in respect of the first of such a series of sentences, would be cancelled by s 160E as soon as the second sentence is imposed with its own parole eligibility date.  In order to remove the need for a judge to work through such unnecessary technicalities, s 160H permits the judge to impose the series of terms of imprisonment and, having regard to their total effect, then to set an appropriate parole eligibility date.
  2. [14]
    If the offender is being sentenced for two offences on the same occasion, s 160H merely says that the judge need not set a date in relation to each term of imprisonment (each of which but for the last would be cancelled) but only has to make a single order that will have “final effect”, provided that this date cannot be any earlier than the earliest possible date under any one of the orders.
  3. [15]
    Section 160F(1) provides that the purpose of these provisions is to “ensure that at any 1 time there is only 1 … parole eligibility date in existence for an offender”.  In further aid of this object, subsection 160F(2) provides that, when fixing a date, the date must relate “to the offender’s period of imprisonment as opposed to a particular term of imprisonment”.  In the present case, which concerns multiple sexual offences and an accumulation of sentences, a sentencing judge had to fix a parole eligibility date and had to do so by reference to the cumulative term of imprisonment.  Reid DCJ did not fix a parole eligibility date because he thought that the applicant’s parole eligibility date would automatically be 80 per cent of the actual total cumulative period because it happened to exceed 10 years.  However, as has been demonstrated, the 80 per cent fixing of a date is only engaged when an offender is sentenced to a term of 10 years and more for a single scheduled offence or to a cumulative term of 10 years or more for several scheduled offences.
  4. [16]
    The applicant has applied for leave to appeal against his sentences.  For reasons that will appear, leave to appeal should be granted.
  5. [17]
    The fifth ground of appeal from the applicant’s further amended Notice of Appeal should be considered first.  The applicant contends that his Honour impermissibly took into account certain uncharged acts.  By way of introduction to his sentencing remarks in relation to the first indictment, his Honour said:

It’s important to understand the offences were not isolated incidents, but part of a more protracted abuse of [Mary] by you, which she was, however, unable to particularise.  The nature of that abuse is set out in the agreed schedule of facts.”

  1. [18]
    The Statement of Facts set out the agreed facts concerning counts 1, 2 and 3, which charged the offences committed against Mary when she was a child:

Further uncharged conduct:

  1. In 1991, when the complainant was in year 7, the complainant’s family moved to [redacted].  The house had a small room next to the lounge room where the defendant would often sit and listen to the radio.  On a number of occasions when the complainant was in the radio room with the defendant, he touched her on her vagina over her clothing.  Whilst doing this, he said words to the effect of, “Geez that feels nice” and “God that is nice.”
  2. The defendant touched the complainant’s vagina underneath her clothing more than ten times either by placing his hand on the inside of her legs or down the front of her underwear.  He also inserted his finger in the complainant’s vagina a number of times.
  3. The complainant is unable to recall specific occasions when this conduct occurred.  She remembers a number of occasions where the defendant was lying in his bed and the complainant was standing next to the bed talking to him.  The defendant slipped his fingers in between her legs and through her underwear and push [sic] his fingers in to her vagina.
  4. The complainant finished Grade 12 in December 1996, and soon after, moved out of her house.”
  1. [19]
    There was a further similar reference in paragraph 16:

“The defendant continued to touch the complainant at any opportunity he could.  After the complainant got her first period when she was nine years old, the defendant began touching her underneath her clothing as well.”

  1. [20]
    The applicant submits that his Honour’s statement, quoted above, showed that in arriving at his sentences his Honour took into account the commission of offences with which the applicant had neither been charged nor convicted.
  2. [21]
    Ms Morreau, who appeared for the applicant, submitted that it was wrong for his Honour to take these matters into account, that doing so constituted an error and that, for this reason, the sentences should be set aside.  Ms Morreau relied upon R v D[6] in which the Court summarised the applicable principles as follows:

“We will try to summarise those principles in a manner which should be adequate for most purposes.

  1. Subject to the qualifications which follow:
  1. (a)
     a sentencing judge should take account of all the circumstances of the offence of which the person to be sentenced has been convicted, either on a plea of guilty or after a trial, whether those circumstances increase or decrease the culpability of the offender;
  1. (b)
     common sense and fairness determine what acts, omissions and matters constitute the offence and the attendant circumstances for sentencing purposes (cp. Merriman at 593, R. v. T.at 455); and
  1. (c)
     an act, omission, matter or circumstance within (b) which might itself technically constitute a separate offence is not, for that reason, necessarily excluded from consideration.
  1. An act, omission, matter or circumstance which it would be permissible otherwise to take into account may not be taken into account if the circumstances would then establish:
  1. (a)
     a separate offence which consisted of, or included, conduct which did not form part of the offence of which the person to be sentenced has been convicted;
  1. (b)
     a more serious offence than the offence of which the person to be sentenced has been convicted; or
  1. (c)
     a “circumstance of aggravation” (Code, s. 1) of which the person to be sentenced has not been convicted; i.e., a circumstance which increases the maximum penalty to which that person is exposed.
  1. An act, omission, matter or circumstance which may not be taken into account may not be considered for any purpose, either to increase the penalty or deny leniency; and this restriction is not to be circumvented by reference to considerations which are immaterial unless used to increase penalty or deny leniency, e.g., “context” or the “relationship” between the victim and offender, or to establish, for example, the offender’s “past conduct”, “character”, “reputation”, or that the offence was not an “isolated incident”, etc.”
  1. [22]
    Ms Morreau’s submission should be accepted.  Although it must be recognised that, even apart from the allegations in the Statement of Facts about uncharged offending against Mary, this was a case in which it was true to say that the offences that the applicant committed against his daughter were “not isolated incidents” and were, rather, “part of a more protracted abuse of her” by the applicant, it is impossible to read his Honour’s remark as other than a reference to the allegations of uncharged offences as adding to the gravity of the offences to which the applicant pleaded guilty.  These uncharged offences should not have been part of the agreed Statement of Facts because they were irrelevant to the sentencing process in this case.  It is unnecessary to decide affirmatively that this erroneous taking into account of irrelevant matters actually resulted in a higher sentence.  It is enough that it may have done so.  For that reason, leave to appeal should be granted.  It is not necessary to consider the applicant’s other grounds of appeal.  The sentences should be set aside and the Court has to consider whether some other sentence should have been passed.[7]
  2. [23]
    There were three sets of offending.  The first set comprised the offences which the applicant committed against his daughter when she was a child.  The second set of offences comprised the offences which the applicant committed against his daughter when she was an adult.  The third set comprised the offences which he committed against his three granddaughters.
  3. [24]
    The applicant relies upon R v P,[8] R v K,[9] R v R,[10] R v WN,[11] R v LS,[12] R v AAR[13] and R v EO[14] as comparable cases.  At the sentence hearing also, the applicant had relied upon R v LS, R v EO and R v PAQ.[15]
  4. [25]
    When the applicant committed the offences against his daughter, between 1985 and 1989, the maximum penalty for indecent treatment of a child under 14 years was seven years.  Mary was aged between six and eight years when the applicant committed the first two offences and she was aged between nine and 10 years old when he committed the third offence.
  5. [26]
    In 1997 the Criminal Code was amended[16] to create circumstances of aggravation for the offence of indecent treatment of a child.  The new circumstances of aggravation were the child being aged under 12.[17]
  6. [27]
    By the time the applicant committed the offences against his granddaughters, who were his lineal descendants, the youngest of whom was aged nine, the other two being 10 years old and 11 years old respectively when the applicant began his offending against them, the Sexual Offences (Protection of Children) Amendment Act 2003 (Qld) had also been passed.
  7. [28]
    This amending Act was the result of a joint Queensland Crime Commission and Queensland Police Service inquiry into child sexual abuse which was the subject of a report entitled Project Axis, Child Sexual Abuse in Queensland: The Nature and Extent.  The Explanatory Notes to the Bill stated:

“This Bill will make immediate changes to the sentencing of child sex offenders by changing sentencing principles, increasing penalties and introducing two new offences into the Criminal Code”.[18]

  1. [29]
    The Explanatory Notes also stated that the reforms to sentencing in the Bill “are designed to ensure that child sex offences are recognised as offences equating in seriousness to offences of violence” (emphasis added).
  2. [30]
    The maximum penalty for the offence of indecent treatment of a child under the age of 16 was increased from 10 years’ imprisonment to 14 years.  Where the child is under the age of 12 years (or other aggravating circumstances are present) the penalty was increased from 14 years’ imprisonment to 20 years.  These increases in penalty only applied to offences committed after the passing of the amending Act.  They applied to the offences which the applicant committed against his granddaughters.
  3. [31]
    The Bill also introduced new principles to be applied pursuant to s 9 of the Penalties and Sentences Act when sentencing child sex offenders.  Section 28 of the amending Act enacted these new principles and s 29 provided that the new principles were to be applied whether the offence or conviction happened before or after the commencement of the section.
  4. [32]
    Subsection 9(4) provides that the usual principle that a sentence of imprisonment should only be imposed as a last resort does not apply to sexual offences against children aged under 16 years.  Subsection 9(6) provides:

“In sentencing an offender to whom subsection (4) applies, the court must have regard primarily to—

  1. (a)
     the effect of the offence on the child; and
  1. (b)
     the age of the child; and
  1. (c)
     the nature of the offence, including, for example, any physical harm or the threat of physical harm to the child or another; and
  1. (d)
     the need to protect the child, or other children, from the risk of the offender reoffending; and
  1. (e)
     any relationship between the offender and the child; and
  1. (f)
     the need to deter similar behaviour by other offenders to protect children; and
  1. (g)
     the prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community; and
  1. (h)
     the offender’s antecedents, age and character; and
  1. (i)
     any remorse or lack of remorse of the offender; and
  1. (j)
     any medical, psychiatric, prison or other relevant report relating to the offender; and
  1. (k)
     anything else about the safety of children under 16 the sentencing court considers relevant.”
  1. [33]
    These amendments constituted a legislative command to sentencing judges and signify the legislature’s opinion that, henceforth, offences of a sexual nature against children were to be regarded with greater seriousness than previously.  They were partly the result of the legislature’s acceptance of the findings of the Axis Report that:

“… the psychiatric and social problems found in victims included anxiety disorders, post traumatic stress disorders, disassociation disorders, depression, risk of suicide and/or self harm, sexual dysfunction and general relationship problems.  The tangible and intangible costs of child sexual abuse to the victim and the community are significant.”

  1. [34]
    As has been said, the Explanatory Notes said that the amendments were made to ensure that such offences were to be equated in seriousness to offences of violence.
  2. [35]
    These amendments to the principles of sentencing apply to the offences in both indictments.  The amendments to increase the penalties for indecent treatment of children applied to the offences in the second indictment.
  3. [36]
    Some of the cases relied upon by the applicant as comparable were decided before the substantial increase in penalty for the offence of indecent treatment of a child under 12.
  4. [37]
    It has long been established that the maximum penalty for any offence is a penalty that is reserved for “the worst case”.[19]  It has not been submitted that the present offences, vile as they are, fall into that category.  However, that is not the only significance that a maximum penalty has for sentencing purposes.  In Markarian v The Queen,[20] Gleeson CJ, Gummow, Hayne and Callinan JJ said that legislatures do not enact maximum available sentences as mere formalities.  Their Honours quoted with approval a statement in a textbook that a change in the maximum sentence by parliament will sometimes demonstrate that the legislature is of the view that previous penalties have been inadequate.  McHugh J also noted this phenomenon.  His Honour observed that “a judge is sensitive to legislative trends” and that a change in the maximum penalty may indicate a shift in values to be applied when sentencing for that offence and that this is a method used to increase the prevailing median sentence for particular classes of offences.[21]  This is so because a maximum penalty for an offence establishes a yardstick and, when that yardstick is changed, that is a significant matter for sentencing.[22]  The same point was made by the Australian Law Reform Commission in 1988 when it said that the legislature might increase the maximum sentence for an offence in order to deter the commission of that offence and that the increases in the penalties actually imposed after such an increase is a response by sentencing judges to the legislature’s statement that this offence is now to be regarded as more serious than it had been in the past.  If deterrence occurs as a result it is because the whole system of justice treats the offence more seriously.[23]
  5. [38]
    It follows that the effect of the substantial increases in penalty for the offence of indecent treatment of children under 12, from 14 years’ imprisonment to 20 years’ imprisonment, is that, while having regard to the need for a sentence to be proportionate to an individual offender’s case, sentences that were imposed before 2003 must now be regarded as generally inadequate.  This is because the penalties were increased by the amending legislation and, at the same time, a new basis for sentencing of such offences was introduced.  Together, those two sets of changes to the statute law of sentencing demonstrated that the legislature regarded these offences as more serious than they had previously been thought.  As Fraser JA said in R v CBI[24] it is to be expected that these changes would produce a general increase in the severity of sentences, rendering the earlier cases of little utility.
  6. [39]
    These provisions required attention to be given to the sentencing principles that henceforth had to be applied.
  7. [40]
    Subsection 9(2), which contains the “sentencing guidelines” that are generally applicable, is consistent with the common law approach to sentencing by requiring a balancing exercise, taking into account the circumstances of the individual case, the need for general deterrence, personal deterrence, denunciation of the offence, rehabilitation and retribution.  The factors to which s 9(2) requires a judge to have regard are germane to one or more of these purposes of sentencing.  They allow a sentencing judge to decide, as a matter of sentencing discretion, the importance to be accorded to each factor.  The first principle in the list is that a sentence of imprisonment should only be imposed as a last resort.
  8. [41]
    Subsection 9(6) is different.  It is preceded by s 9(4) which excludes the application of the general principle that imprisonment is a punishment of last resort and substitutes the principle that, except in cases in which there are extraordinary circumstances, an offender must be ordered to serve an actual term of imprisonment.  This legislative command overrides any weight that would otherwise be given, if the discretion were unconstrained, to factors that do not amount to exceptional circumstances that would mitigate against a prison term, including facts relating to the rehabilitation of the offender.
  9. [42]
    The 11 factors to which the court “must have regard primarily” fall into two categories.  Seven of the factors are directed to circumstances affecting the child victim or potential victims.[25]  The remaining four factors concern the offender.
  10. [43]
    Each of these are factors that a sentencing judge would have regarded as relevant as a matter of common law.  However, that is not a reason to regard s 9(6) as a mere declaration of existing law.  This is because s 9(6) does not just put forward these factors as something that may be taken into account.  They are factors to which the sentencing judge “must have regard primarily”.
  11. [44]
    The seven factors that are referrable to child victims of sexual offences have nothing to do with the offender’s subjective circumstances.  The first three factors[26] direct attention to the victim and to the effect of the offence upon the victim, something distinct from the offender’s personal situation.  These factors are also irrelevant to general deterrence.  The fourth factor,[27] concerning the need to protect the victim and other potential victims, requires attention to be paid to the likelihood of recidivism and whether, taking that into account, the weight to be given to the mitigating factors might otherwise serve to reduce the sentence.  The fifth factor[28] directs attention to the relationship between the offender and the victim.  This factor requires consideration of such factors as the child’s vulnerability to the offender and the degree to which the offender took advantage of the relationship in order to be able to commit the offence.  The sixth factor[29] expressly requires weight to be given to general deterrence as a factor.  The final factor,[30] requiring the sentencing judge to have regard “primarily” to “anything else about the safety of children” that is considered relevant, again addresses matters beyond the offender’s personal mitigating circumstances.
  12. [45]
    In R v Kilic[31] Bell, Gageler, Keane, Nettle and Gordon JJ said that current sentencing practices with respect to sexual offences may be seen to depart from past practices by reason of changes in understanding about the long-term harm done to victims.  Community attitudes change and the amendments made in 2003 reflected such changes.  The amendments have brought the circumstances of the victim and other potential victims to the forefront of a sentencing judge’s consideration.  These are matters that address the community’s denunciation of sexual offences against children.  These provisions constituted a legislative representation about the community’s attitude to sexual offences against children, particularly against very young children.  The amendments made these matters the starting points for the judicial task.[32]  Statute law, having the higher authority of the legislature, cannot be waived by the parties simply because they are ignorant of it or because they choose not to argue it although it is applicable.  Once such an omission comes to light in proceedings that are still current within the Judicature, judges are under a duty to give them effect.[33]
  13. [46]
    It is now possible to consider the relevance and the significance of the authorities cited on behalf of the applicant.
  14. [47]
    In P[34] the offender was sentenced on 22 August 1997 for offences committed in 1983.  These were offences of indecent dealing and incest committed against his daughter from when she was 10 years old until she was an adult.  The maximum penalty for the indecent dealing offences was seven years’ imprisonment.[35]  As has been discussed, the maximum was later increased to 14 years and is now 20 years.  The statutory circumstances of aggravation which were alleged against the applicant in this case did not then exist.  One of the offences of indecent dealing was committed by the offender’s digital penetration of his daughter’s vagina.  In 2000 the Criminal Code was amended so that digital penetration without consent constituted rape[36] for which the maximum penalty is life imprisonment.  The incest charges were committed when the offender’s daughter was 16 under circumstances that would today have justified a charge of rape[37] having regard to the significant amendment made to the definition of consent in 2000.[38]  P was sentenced under the law as it was in 1983 to three years’ imprisonment for the indecent dealing offences and seven years and six months for the incest offences.  His application for leave to appeal against his sentences was refused.
  15. [48]
    In R v K[39] the applicant pleaded guilty to seven counts of indecent dealing with a girl under the age of 12.  He was sentenced to imprisonment for three years with a recommendation for parole after 12 months.  The case was decided in 1999.
  16. [49]
    In R v R[40] the applicant was convicted after a trial of two counts of indecent dealing with a girl aged 10 or 11.[41]  He was sentenced to five years’ imprisonment.  The case was decided in February 2000.
  17. [50]
    In R v WN[42] the offender was convicted of an offence of incest committed in March 2004 with his 22 year old daughter.  He had a previous conviction for incest and was sentenced on his plea of guilty to four years and six months’ imprisonment suspended after 18 months.  His appeal against the severity of that sentence was dismissed.  The case had nothing comparable to the present case except that it also happens to involve an offence of incest.
  18. [51]
    In R v LS,[43] decided in 2006, the offender was sentenced for several offences of indecent dealing with three different female children.  The longest of the sentences was a sentence of three years imprisonment, suspended after nine months.  The period of suspension was reduced on appeal because of the sentencing judge’s failure to perceive the significance of certain health difficulties suffered by the applicant.  Four of the offences had been committed before the 2003 amendments.  The date of the commission of the remainder is not discernible from the judgment.  One of the offences of indecent dealing, which carried a maximum sentence of 14 years when they were committed, now carries a maximum of 20 years.  In any event, there was no reference in the judgment to the amendments.
  19. [52]
    R v AAR[44] was decided in 2014.  A jury found the applicant guilty of four offences of indecent treatment of a child under 12 years with circumstances of aggravation and one count of attempted indecent treatment of a child, also with circumstances of aggravation.  The offences were committed in between 2005 and 2007 and in 2009.[45]  The maximum sentence for these offences was 20 years.  The applicant was sentenced to concurrent terms of imprisonment of five years for the indecent treatment offences and he appealed on the ground that the sentences were manifestly excessive.  The prosecutor relied upon the authority of R v PAC[46] and R v RAD[47] to sustain the sentences.
  20. [53]
    R v PAC was a case that was decided in 2006 but it was concerned with offences that were committed between 1987 and 1990.  At that time the maximum penalty for three of the offences was seven years and it was 10 years for an offence involving digital penetration (which today would be charged as rape).  The equivalent sentences are now 20 years (and life imprisonment for rape).  In R v PAC the prosecutor relied upon sentences from as early as 1994 to argue for a sentence of two to three years’ imprisonment.
  21. [54]
    R v RAD was decided in 2008 and concerned eight offences committed in 2007 which included indecent treatment of a child under 12, the offender’s permitting himself to be dealt with by that child, procuring the child to commit an indecent offence, wilful exposure and the taking of an indecent photograph.  To support a reduction of a sentence of four years with parole eligibility after one year the applicant relied upon two cases in which the Attorney-General had appealed.  One of the cases relied upon by the prosecutor[48] was decided before the amendments.  In the other case, R v Quick; ex parte A-G (Qld),[49] the Court of Appeal increased the sentence.  However, the resentencing by the Court of Appeal was affected by the then applicable principle that it was necessary on such an appeal to “[take] a moderate approach consistently with the disposition of an Attorney’s appeal.”[50]  That principle no longer applies to appeals by the Attorney-General.[51]  Consistently with that approach, however, a wholly suspended sentence of 18 months was replaced with a sentence of 18 months to be suspended after three months.  R v Quick is relevant in another way to the present case and will be discussed further below.
  22. [55]
    In R v RAD Cullinane J referred to certain cases cited by counsel to support the submission that there were no cases as high as that which had been imposed.  Five of these cases had been decided before the amendments.[52]  The sixth case, R v MAO; ex parte A-G (Qld),[53] was decided in 2006 after the amendments but, in increasing a sentence of 12 months’ imprisonment suspended after three months to one which would be suspended after six months, the Court was referred to, and relied only upon, cases concerning offences that were all committed before the maximum sentences were increased in 2003.
  23. [56]
    R v EO[54] was a case decided in 2019 which concerned offences of indecent dealing committed between 1979 and 1982 when the maximum penalty was seven years’ imprisonment.
  24. [57]
    R v PAQ[55] was an appeal against conviction in which the adequacy of the sentence of four and a half years that was imposed for an incest offence was not considered by the Court of Appeal.
  25. [58]
    What this excursus demonstrates is that there has been persistent reliance upon sentences imposed before significant amendments were made to the legislation and without reference to the increase in penalty.  Second, the applicable principles of sentencing were changed substantially but the cases make no reference to them.
  26. [59]
    In R v Quick[56] de Jersey CJ said:

“It may be unlikely the respondent would re-offend, but the primary considerations in sentencing for this sort of offending, apparently rife, are general deterrence and, in plain terms, community denunciation.”  (emphasis added)

  1. [60]
    The Chief Justice referred to earlier cases, one of which was R v LA; ex parte A-G (Qld)[57] in which he had said the same thing with the agreement of Davies and Thomas JJA.  This dictum, made without reference to the statute, reflects the legislation that must be applied when sentencing offenders who have committed sexual offences against children.
  2. [61]
    In this case the applicant’s victims were very young.  Mary was variously aged between six and 10 years when the applicant, her father, committed his crimes against her.  His acts were predatory and cruel.  His offending escalated from using his six to eight year old daughter as an object of sexual titillation, including for masturbation purposes, to an attempt to have sexual intercourse with her when she was nine or 10 years old.  His sexual dominance of his daughter even persisted into his pressuring her into acts of incest when she was an adult and at a time of personal crisis and vulnerability due to Mary’s husband’s severe illness at the time, as the applicant knew.  The deep-seatedness of his sexual proclivity against children was demonstrated by his further offending against his daughter’s own young daughters.  The consequences for his victims were inevitable.  As a result of the early offending, Mary’s relationship with her mother was corroded.  Her victim impact statement shows that her social relationships with friends were damaged.  Even into her adult life, as a married woman, Mary’s father’s tormenting of her continued by the applicant’s victimisation of Mary and her daughters.  The effects were predictable.  The whole family suffers feelings of anxiety and fear and from a lack of trust.  The nature of the offences was rightly described by Reid DCJ during argument as vile.  The applicant’s offences have had deep, lasting and perhaps permanent effects upon his victims.
  3. [62]
    There has been no suggestion of any remorse on the part of the applicant.  The applicant suffers from various ailments, including diabetes, high blood pressure, high cholesterol, reflux and osteoarthritis.  He is in his mid-sixties so these are diseases that are not uncommon in men of that age.  His work history is unremarkable.  The applicant pleaded guilty to these offences and some discount should be given for that even if his plea does not evidence remorse or regret on his part.  He has turned to religion while in prison and attributes his sexual perversions to the work of the devil.
  4. [63]
    This was very serious offending of a cruel and destructive kind committed against two generations of vulnerable lineal descendants who were very young children.  The maximum penalty for the offences committed against the applicant’s grandchildren is 20 years’ imprisonment.  These were particularly serious offences because, in addition to the direct effect of the offences against his granddaughters, there is the fact that Mary knows that her father has repeated his offences against her daughters as well.  The applicant’s attitude to his offending offers no optimism for his future conduct.  He remains dangerous.
  5. [64]
    In Neal v The Queen[58] Gibbs CJ said that in cases in which the Court of Appeal intends to grant leave to appeal but in which the Court has given reason for the applicant to suppose that the power conferred by s 668E(3) of the Code to increase a sentence might be exercised “it is right to insist on a strict compliance with formality”.  The formality to which his Honour referred was the requirement when giving leave to appeal to afford a successful applicant, who thereby becomes an appellant, an opportunity to consider whether to appeal.  This case is special because the respondent made it plain in his outline of submissions that a 12 year sentence would be put forward.  The applicant could have been under no misunderstanding about one of the possible outcomes of this litigation.  Nevertheless, there has not been a case in Queensland since Neal was decided in 1982 in which a sentence has been increased without following the strict procedure and there is no overwhelming reason why the procedure required by that case should not be followed.  This is particularly so because the applicant has not been heard upon the application of s 9(6) to his case.
  6. [65]
    The proper sentences that should now be imposed depend upon factors to which, according to s 9(6) of the Act, the court must primarily have regard.  In this case subsections 9(6)(a), (b), (c), (d), (e) and (k) figure prominently.  Nothing has been put forward in the applicant’s favour to address the matters referred to in s 9(6)(f), (h) or (i).  The incest offence carries a maximum penalty of life imprisonment.  The 15 indecent treatment offences committed in the circumstances already described, committed at around the same time as the incest offence, now carry a 20 year maximum sentence.  It is clear that, even apart from a consideration of the primary factors, a 12 year sentence with parole eligibility deferred until the applicant had served 80 per cent of that period was a sentence that was well within the proper range.
  7. [66]
    The order of the Court should be that leave to appeal is granted and that the disposition of the appeal should be adjourned to a date to be fixed.

Footnotes

[1]  In order to protect the privacy of the applicant’s victims, pseudonyms have been used throughout this judgment.

[2]Penalties and Sentences Act 1992 (Qld), Part 9A; Corrective Services Act 2006 (Qld), s 182(2)(a).

[3]  Or are offences which the sentencing judge declares to be serious violent offences: see s 161C(2)(b)(ii) and the power to make a declaration in cases of non-scheduled offences which involve actual violence.

[4]  Against s 222 of the Code and committed in 2008, that is, after the enactment of the Serious Violent Offence provisions.

[5]  Against ss 210 and 352 of the Code and committed after the enactment of the provisions.

[6]  [1996] 1 Qd R 363 at 403-404.

[7]  Section 668E(3) of the Code; Kentwell v The Queen (2014) 252 CLR 601 at [42].

[8]  [1998] 2 Qd R 191.

[9]  [1999] QCA 41.

[10]  [2000] QCA 27.

[11]  [2005] QCA 359.

[12]  [2006] QCA 354.

[13]  [2014] QCA 20.

[14]  [2019] QCA 145.

[15]  [2014] QCA 11.

[16]Criminal Law Amendment Act 1997 (Qld).

[17]  Section 210(3).

[18]  These new offences are in s 218A (using internet to procure children for offences) and s 229B, an amended offence of maintaining a sexual relationship with a child.

[19]Veen v The Queen [No 2] (1988) 164 CLR 465; Bensegger v The Queen [1979] WAR 65.

[20]  (2005) 228 CLR 357 at [30]-[31]; see also Elias v The Queen (2013) 248 CLR 483.

[21]Supra, at [80].

[22]  An example of the application of this principle is R v AB (No 2) (2008) 18 VR 391; [2008] VSCA 107 at [40]-[41] per Warren CJ, Maxwell P and Redlich JA.

[23]Sentencing [1988] ALRC 44 at [37].

[24]  [2013] QCA 186 at [19]

[25]  (a), (b), (c), (d), (e) and (k).

[26]  The effect of the offence on the child, the age of the child and the nature of the offence, including any physical harm or threat of physical harm to the child or another.

[27]  Section 9(6)(d).

[28]  Section 9(6)(e).

[29]  Section 9(6)(f).

[30]  Section 9(6)(k).

[31]  (2016) 259 CLR 256 at [21].

[32]  Per Kirby J in Markarian, supra, at [93].

[33]Ibid, at [102].

[34]Supra.

[35]Ibid, at 192 per Lee J.

[36]  Section 24 of the Criminal Law Amendment Act 2000 (Qld).

[37]P, supra, at 205 lines 14 to 20 and see R v Sunderland [2020] QCA 156 at [44].

[38]  See R v Makary [2019] 2 Qd R 528; [2018] QCA 258 at [46]-[49].

[39]Supra.

[40]Supra.

[41]Supra, at [53].

[42]Supra.

[43]Supra.

[44]Supra.

[45]Supra, at [5].

[46]  [2006] QCA 327.

[47]  [2008] QCA 305.

[48]R v Craig; ex parte A-G (Qld) [2002] QCA 414.

[49]  (2006) 166 A Crim R 588; [2006] QCA 477.

[50]  [2006] QCA 477 at [15] per de Jersey CJ.

[51]R v Lacey; ex parte A-G (Qld) [2009] QCA 274 at [151]-[152] per de Jersey CJ, Keane, Muir and Chesterman JJA and at [270] per McMurdo P.  The High Court allowed an appeal against the judgment of the Court of Appeal but did not overrule this part of the Court’s reasons.

[52]R v P [2001] QCA 130; R v Schirmer [1995] QCA 242; R v SAQ [2002] QCA 221; R v M [1995] 394; R v Hamstead [1999] QCA 33.

[53]  [2006] QCA 99.

[54]Supra.

[55]Supra.

[56]Supra, [14].

[57]  [2000] QCA 123.

[58]  (1982) 149 CLR 305 at 308.

Close

Editorial Notes

  • Published Case Name:

    R v Stable (a pseudonym)

  • Shortened Case Name:

    R v Stable (a pseudonym)

  • MNC:

    [2020] QCA 270

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Fraser JA, Philippides JA

  • Date:

    04 Dec 2020

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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