The Queen v WV[1997] QCA 431

de JERSEY J:  The applicant pleaded guilty to the charge of maintaining a sexual relationship with a child under 16 years with a circumstance of aggravation, which was having unlawful carnal knowledge.  He pleaded guilty on an ex officio indictment.  The relevant conduct continued over approximately two months.

He was sentenced to two and a half years imprisonment with a recommendation that parole be considered after he has served nine months.  At the time the applicant was 23 years old and the complainant girl 14 years old.  She lived with her mother.  Her mother commenced a relationship with a man by the name of WV, not related to the applicant, who sometime earlier had, however, been in a relationship with the applicant's mother.

In early 1996 the applicant, though living in Victoria, kept in telephone contact with Mr WV, who was then living with the complainant and her mother at Maroochydore.  Through this telephone contact the applicant came to know the complainant and developed a close relationship with her. 

In the course of this contact the complainant told the applicant that she was 14 years old.  On 8 June last year the applicant moved to Maroochydore and moved in with the complainant, her mother and Mr WV.  He immediately moved into the complainant's bedroom and consensual sexual relations commenced, apparently with the approval of the complainant's mother and Mr WV, who, in fact, supplied the applicant and the complainant with condoms.  Over the next six weeks or so they regularly had sexual intercourse.  On one occasion a condom broke and the complainant fell pregnant, and that led to an argument between the applicant and the complainant on the one hand and on the other, the complainant's mother.

The applicant and the complainant left the house.  The police were notified.  When interviewed by the police the applicant admitted the offence saying that he did not think that the girl's age mattered so long as she was a willing party.  He commented that she was old enough to make up her own mind whether she wanted it or not.

As a result of the pregnancy the complainant left school.  By the time of sentence the child had been born and she was caring for it in Toowoomba.  The complainant was then only 15 years old and was, not surprisingly, having difficulty supporting herself financially.  She felt worthless and had lost friends as a result of the pregnancy.

The applicant is of borderline intellect.  In 1992 he was declared eligible for services under the Intellectually Disabled Persons Services Act in Victoria because of intellectual disability.  He has previously been convicted and has been given the benefit of community-based orders.

The material before the sentencing Judge included a report from a clinical psychologist which stated that he was of borderline intellect and had limited social skills.  The position advanced for the applicant in this Court may be summarised by my repeating this part of counsel's outline.

"It is submitted in all the circumstances the applicant should not have been sent to prison.  The relationship was essentially not an exploitative one and it was not really a case of an adult male sexually preying upon a child.  Rather it seems clear that because of the applicant's intellectual disability he could relate well to the complainant, who was clearly willing to have a sexual relationship with him.  Her mother and step-father did not object and it is very doubtful that the applicant was fully able to appreciate the wrongness of his actions in those circumstances."

I observe, as discussed during the oral submissions here this morning, that there does not seem to be any particular justification in the material put before the sentencing Judge for that last assertion.  Mr Hamlyn-Harris, who appeared for the applicant, referred us to R v S; ex parte Attorney-General of Queensland [1996] QCA 409 and to a range of other non-custodial sentences imposed in relation to the offence of unlawful carnal knowledge.

Significantly, however, one notes that the maximum penalty for unlawful carnal knowledge is five years imprisonment, by contrast with the position for the offence of maintaining a sexual relationship with a circumstance of aggravation where the maximum penalty is 14 years imprisonment.

Mr Chowdhury, for the respondent, referred us to R v H [1994] QCA 009 and Morgan, 517 of 1996, both of which support the view that the sentence imposed here was within range.  There is one other matter I want to mention.  Mr Chowdhury was unable to indicate whether or not proceedings had been taken against the complainant's mother and Mr WV. 

It would seem on the material put before the sentencing Judge and us that they were likely parties by operation of section 7 of the Criminal Code.  Mr Chowdhury informed the Court that he would ensure that inquiries were made about that.  As I say on the material before us it would certainly be my own view that they should be charged.

No ground has been demonstrated for interfering with the sentence imposed upon the applicant.  I would refuse the application.

DAVIES JA:  I agree.

MUIR J:  I agree.

DAVIES JA:  The application is refused.