R v W[1999] QCA 124

COURT OF APPEAL

de JERSEY CJ

DAVIES JA

FRYBERG J

CA No 460 of 1998

THE QUEEN

v.

W                    

(Applicant) Appellant

BRISBANE

DATE 14/04/99

JUDGMENT

DAVIES JA:  The applicant pleaded guilty in the District Court on 10 December 1998 to incest with his sister between 1 January 1993 and 6 August 1998.  He was sentenced to 18 months' imprisonment and he seeks leave to appeal against that sentence.

The offence to which the applicant pleaded was in fact a single offence occurring on the night of 4 August 1998.  The circumstances giving rise to the commission of this offence are, in my view, unusual.  When it occurred the applicant was 46 years of age having been born on 28 May 1952 and his sister was then 32.  They had been separated when they were very young, she was only 18 months old at the time.  They were reunited in 1993 believing that they may be brother and sister but not knowing that they were.  They commenced to have sexual intercourse soon after that and that continued after it became known to the applicant that they were in fact brother and sister.  By that time the applicant's sister appears to have had several children by another father.

The relationship continued for some time but had ceased about two years prior to 4 August 1998.  On that night they committed a single act of sexual intercourse which was initiated by the applicant's sister.  The offence was therefore unusual in that by the time sexual intercourse occurred between the applicant and his sister they were both mature adults; that they voluntary ceased their relationship; and that the offence to which the applicant pleaded guilty was one isolated act of sexual intercourse two years after that relationship ceased.  It also appears that both the applicant and his sister have substantial intellectual difficulties.

According to his counsel before the learned sentencing Judge below the applicant greatly regretted the offence and suffered a great deal of embarrassment and humiliation by the charge which was brought against him.  He came from a very violent and abusive family and was often whipped with a stockwhip by his father when a child.  On one occasion his father hit him with an axe.  It was for this reason that he was placed in foster homes and thereby became separated from his sister and other siblings.

The applicant has a minor and irrelevant criminal history and has never been to gaol.  Offences of incest cover a very wide range, much wider than that envisaged by the learned sentencing Judge, see for example The Queen v. P (1998) 2 Qd.R 191.  However, this case is toward the lower end of the range, the opposite end from that considered in P. 

Where the intercourse which occurs is between mature consenting adults the main community concern is the effect which that may have on children born to the parties.  The risk of that occurring may vary from case to case but it may be seriously doubted whether in any such case any community benefit is served by the imposition of a term of imprisonment.

This is a case in which having regard to all of the circumstances which I have mentioned it was inappropriate, in my view, to impose a term of imprisonment.  It may be noted that that was the view of both the prosecutor and defence counsel who appeared before the learned sentencing Judge.  Nor does there seem to be any point in this case in imposing a term of probation or community service. 

The applicant, we are told, has spent eight days in custody.  I would therefore set aside the sentence imposed below and order that the applicant be released upon entering into a recognisance in the sum of $200 conditioned that he keep the peace and be of good behaviour for a period of two years.  I would leave intact the recording of the conviction which followed from the sentence which was imposed below.

THE CHIEF JUSTICE:  I agree.

FRYBERG J:  In a case where there is no question of exploitation of one party by another the only function which it seems to me the law of incest can currently perform is the protection of the genetic integrity of the community. 

Where the Crown wishes to allege that that integrity is put at risk it seems to me that in these days of widespread and easily accessible contraception the onus is upon the Crown to produce some evidence of the risk.  In the present case the prolonged relationship which continued without any pregnancy would found an inference that contraception was used.  That being so, the two purposes for which the law exists have no application to the circumstances of the case.  I would reject the submission made on behalf of the Crown that there is apart from those two purposes a moral dimension to the law.  The fact that many in the community would regard the practice of incest as wrong merely reflects in my judgment the community's comprehension of the two aspects to which I have already referred.  I do not think the law is intended to enforce some moral or religious code notwithstanding what might appear in some of the earlier authorities.  I agree with the orders proposed.

THE CHIEF JUSTICE:  The application and the appeal are allowed.  The applicant is to be released if he enters into a recognisance without surety on the terms otherwise specified by Justice Davies.  A conviction will be recorded.