The Queen v V[1998] QCA 129

PINCUS JA:  This applicant was charged with various counts of sexual offences against a complainant and stood his trial in the District Court.  The trial proceeded on 24 November last when the complainant gave some evidence; on the following morning the applicant was re-arraigned on four charges, three of having had unlawful carnal knowledge of the complainant, a girl under the age of 16, and a fourth of maintaining an unlawful relationship of a sexual nature with her and in the course of the relationship unlawfully having carnal knowledge of her.  The applicant pleaded guilty to those counts and was sentenced on the first three to two years' imprisonment and on the last to four years' imprisonment with a recommendation of consideration for parole after 16 months. 

The offences were committed between May 1990 and January 1991.  There was a substantial delay in charging the applicant; it is not at all clear to me, however, that this delay should enure to the applicant's benefit.  On the information before the Court the complainant was frightened of the applicant, who was her brother-in-law and a leader in the church of which she was a member.  She said that these matters made her wonder if he had authority to do what he had done.

A difficulty about explaining the circumstances in which the events occurred is that the evidence which was given must now be ignored.  The judge said, in effect, that he could not sentence upon the basis that there was no consent; that is a view which is plainly correct. 

His Honour said this, in a passage which seems to me desirable to quote in full: 

"The accused was in a position of very real superiority in relation to the complainant who was the 15 year old sister of his wife.  In the particular family cultural community in which the accused and the complainant live, the accused was in a position, as I said, of more than ordinary superiority and seniority as far as the complainant was concerned.  He was viewed as the senior male member of the family as her father had died, and, as I said, and I stress he had very real authority over her in that position, and one might expect a high standard of responsibility and moral behaviour on the part of the accused, particularly in relation to his wife's younger sister."

It seems desirable to summarise other views His Honour expressed.  The Judge said that the victim impact statement made clear the emotional and psychological after-effects of the applicant's course of behaviour.  His Honour said, in effect, that one should have total sympathy and give full support to the complainant in relation to the behaviour of the applicant, but that the court had been told that some in the relevant cultural group and family group were on the applicant's side.   His Honour thought it inappropriate to make any allowance for remorse because he did not feel that the applicant was sorry for the things he had done.  The Judge said "[o]ne suspects the only things he is sorry about is his being brought to justice.  His behaviour in Court has enabled me to have in the circumstances quite a good view of him."  His Honour went on to explain how that behaviour had assisted him towards the view that there was no remorse.  He referred to a number of citizens who had given references in favour of the applicant, to the fact that he had a reasonable work record, that he had no previous convictions and had not re-offended since the offences in question were committed.

There was a gap of nearly 20 years between the applicant's age and the complainant's age at the time of the offence, she being then 15 years of age.  If one takes seriously the content of the victim impact statement, the result of the applicant's mistreatment of the complainant has been rather disastrous for her; her family became abusive of her because she was not respectful to the applicant after he had mistreated her; she wanted to get away from home but did not know where to go; eventually she moved to her brother's residence and then to a youth shelter where she received psychiatric and other similar attention.  She said she was concerned that the applicant would keep what she described as his promise to hurt her even more.  She has found study very difficult because of the mental anguish she is still suffering. 

It is desirable to refer briefly to some authority.  In Gillespie (C.A. No. 168 of 1992, 15 July 1992) there was a charge of maintaining a sexual relationship and the applicant was sentenced to seven years imprisonment after a plea of guilty.  There the complainant was the same age, 15.  On appeal the sentence was reduced to four years and six months imprisonment.  There was some evidence of remorse which is absent in the present case.  In H (C.A. No. 442 of 1993, 16 February 1994) an Attorney's appeal, there was a plea of guilty in relation to the same charge.  There the complainant was only 13 and the applicant was 30 and he had made the complainant pregnant.  He had earlier been convicted of an indecent dealing offence involving the same complainant. This Court increased the sentence to four years.  In Douglas (C.A. No. 416 of 1996, 12 November 1996) which was mentioned during the course of argument, another Attorney's appeal, a wholly suspended sentence was given.  The complainant there was 12, although apparently very mature.  The respondent, who pleaded guilty, was 34.  The sentence was increased to three years imprisonment suspended after 12 months.  In Morgan (C.A. No. 517 of 1996, 4 October 1996) another case which was mentioned in argument, the Attorney again appealed against a wholly suspended sentence.  The girl was 13 and 14 years of age during the relationship and was somewhat intellectually disabled.  The respondent was 39; the complainant, a willing participant in regular sexual intercourse.  There was cooperation with the police and a plea of guilty.  The sentence was changed to three years with a recommendation for parole after 12 months.  In Wilson (C.A. No. 348 of 1997, 30 October 1997) there was a plea of guilty; the sentence was two and a half years with a recommendation for parole after nine months.  There the ages of the parties were much closer, the applicant being 23 and the plaintiff 14.  The applicant had previous convictions and was of borderline intellect.  The application for leave to appeal was refused.

The present, it seems to me, was a difficult and unusual case in which to impose sentence.  I have referred to the fact that it would have been quite wrong to sentence on the basis that there was a rape, nor can we consider the matter on that basis.  This is not to say, however, that the judge was obliged to sentence on the assumption that the complainant had intercourse with her brother-in-law because of any sexual interest in him.  It appears to me that we should treat the case as one in which consent was induced by the applicant's superior position in the culture in which the parties lived. 

On that basis, keeping in mind the total absence of remorse, and the effect of the offences on the complainant, it is my view that the sentences imposed were proper ones and leave to appeal should be refused.

DAVIES JA:  I agree.

DOWSETT J:  I also agree.