R v B and P[2000] QCA 379

COURT OF APPEAL

PINCUS JA

THOMAS JA

JONES J

CA No 108 of 2000

THE QUEEN

v.

BK

CA No 112 of 2000

THE QUEEN

v.

PC

BRISBANE 

DATE 14/09/2000

JUDGMENT

THOMAS JA:  These are applications by the mother and father of three children for leave to appeal against sentences imposed on three counts of maintaining an unlawful sexual relationship with a child, with a circumstance of aggravation.  It will be convenient to deal firstly with the appeal of the female applicant.

The female applicant is the mother of the three children with whom the sexual relationships were maintained.  She was sentenced to three and a half years imprisonment cumulative upon an existing sentence of 12 years imprisonment which she was serving.  The present sentence included a recommendation for consideration of parole after 18 months.  The overall effect of the sentences was imprisonment of 15 and a half years with a recommendation for consideration of parole after six years.

The offences spanned an eight month period between July 1996 and February 1997.  At that time the child T was aged 9, H 10 to 11 and D 15 to 16.  The applicant's co-accused, Mr BK, was her de facto husband.  He was the father of T and H and the step-father of D.  The offences came to light after H complained of the arrangements that her parents had made with a man named Schloss for her "sale" to him for sexual purposes. 

This led to the conviction of Schloss and the applicants on a number of charges.  The applicant and her co-accused were convicted of procuring a minor to engage in carnal knowledge, and of rape, that is to say as Section 7 offenders in respect of Schloss' rape of H.  However, appeals ensued in relation to those convictions and the applicants' convictions for rape were set aside.  On 22 February 1997 the applicant was sentenced to 12 years imprisonment for the procuring offences and on appeal that sentence was allowed to stand with an adjusted recommendation for consideration of parole after four and a half years.

The children were taken into care.  The circumstances of the conduct of the applicant and her co-accused towards the children during the period leading up to the procuration later came to light leading to the present additional charges of maintaining three unlawful sexual relationships.

The conduct in question was able to be particularised into seven occasions of bizarre conduct which was undoubtedly aimed at training the children to become prostitutes, presumably for use by Schloss and perhaps others like him.  The conduct which the children were instructed to perform involved the girls lying on top of D and simulating intercourse.  On another occasion the girls lay on top of one another and simulated intercourse.  On another the applicant, who was naked, performed oral sex on BK, who was also naked, in order to show the children how it was done.

They then told the girls to perform the same act on D.  On the night before the offence involving Schloss the girls were told to simulate intercourse on the bed.  On another occasion the applicant herself lay on top of T and simulated intercourse.  She made T touch the applicant's breasts and then pressed her fingers inside T's vagina causing her to bleed.  Conduct of this latter kind occurred twice. 

The essential submission upon appeal is that the applicant has been twice punished for the same conduct.  It was also submitted that on the proper application of the totality principle the conduct involved in all offences charged does not warrant the total of the sentences that were imposed.

Counsel for the applicant submitted that the offences form a series amounting to a single course of conduct neither separate nor distinct in time or character and that the sentences should have been concurrent.

The above submissions require analysis of the sentence imposed on the original charge.  It is true that that sentence paid heed to the past exploitation of H by Schloss with the applicant's connivance.  The judgment of de Jersey CJ acknowledges that the applicant's acquiescence in the development of the relationship between Schloss and H was a morally reprehensible matter that could properly be taken into account without infringing the principles of The Queen v. D [1966] 1 Qd R 363.

It was therefore very important for the sentencing Court in the present matter, and now for this Court, to ensure that the applicant is not punished twice by reason of the same moral revulsion.  It must be acknowledged that there is a degree of overlapping of this factor and its potential effect on each sentence.

The applicant's acts in the present offences were to an extent preparatory acts for the offences involving Schloss. However, the conduct brought to light in the present matters involves a course of conduct of what might be called training exercises in the corruption of three children, whereas only some of this was involved in the Schloss offences.  These activities are not merely incidental to the prostitution of H.  They significantly extend the applicant's criminality. 

The learned sentencing Judge rightly emphasised that the applicant had deprived her children, all three of them, of the right to be protected, nurtured and valued by their parents and had done so in a base and cruel way.  She pointed out that threats and violence were involved in the conduct and that the children had been left deeply disturbed.  There was an act of penetration by the applicant which could only be regarded as deliberate physical preparation for intercourse by an immature child.  These matters broaden the applicant's criminality and do so significantly.

It is very difficult to assess what the overall result would have been had this information and these charges been before the original sentencing Judge.  The submission for the applicant is that the result would have been no different to that of the original sentence.  I do not think that that is right.  However, the cases to which counsel for the applicant referred tended to suggest that the total result may have been less than the 15 and a half years with parole eligibility after six years which has now resulted.  These cases include The Queen v. Knijff ex parte Attorney-General (1993) 69 A Crim R 236, The Queen v. Mueller ex parte Attorney-General CA No 137 of 1996, 2 August 1996, The Queen v. Craddock ex parte Attorney-General [1998] QCA 334, CA Nos 269 & 270 of 1998, 23 October 1998, The Queen v. Galley CA No 380 of 1997, 21 November 1997, and The Queen v. Ruhland [1999] QCA 430, CA No 147 of 1999, 15 October 1999.  None of these resulted in a sentence overall as heavy as that imposed on the applicant. 

Most of those cases involved offences of repeated penetration, and perhaps a greater level of sexual activity than that to which the three victims were subjected in the present offences.  Those cases probably reveal worse physical acts and more of them than the present cases, but the sheer wickedness of the present applicant's conduct and its depravity is hard to match.  It reveals grossly perverted conduct by a mother which almost defies belief.

I am satisfied that the learned sentencing Judge was quite correct in deciding that an additional cumulative sentence was necessary.  The question is how much was justified.  There are some who would say the applicant deserves any sentence that the Court might impose on her, and the higher the better.  But to adopt such an approach would be contrary to the duty of the Court, one of whose functions is to maintain a relative consistency in its response to such matters.

None of the cases to which reference has been made resulted in an overall sentence of greater than 13 and a half years despite the fact that multiple offences were involved.  The sentence to which I have referred - that 13 and a half years was imposed in Ruhland where there were 98 offences involving 12 boys and eight counts of maintaining a sexual relationship with boys.

Acknowledging, as we must, the fact that the present sentences involved to a significant extent preparatory acts for the crime for which the applicant has already been substantially punished, it seems to me that while a cumulative sentence was justified the one that was imposed was obviously too high.

In my view consistency and fair totality would be achieved by subjecting the applicant to an overall effective sentence of 14 years with a recommendation for consideration of parole after five and a half years.  This would be brought about by a cumulative sentence of two years and by an adjustment to parole eligibility.

I would therefore grant the female applicant leave to appeal, allow the appeal, set aside the sentence below and replace it with a sentence of two years imprisonment on all three counts concurrent with one another, but cumulative upon the sentence which the applicant was already serving, with a recommendation that she be considered for parole after serving five and a half years of the sentences.

The adjusted parole period follows the application of section 157, subsection 3 and subsection 6 of the Penalties and Sentences Act.  Notionally there is the four and a half years recommendation made on the original sentences and the addition of one year in respect of the present cumulative sentence.

In respect of the father's appeal the same factors apply.  However, he was less involved in the acts than the mother and in particular she penetrated her daughter while he did not.  This was reflected in her Honour's sentence by sentencing him to a head sentence six months less than that of the mother.  Similar orders were, however, made in relation to parole.  The differential should be maintained although in the result, I think, that he should be subject to the same non-parole period as the female applicant.

The male applicant's sentence should be reduced from three years to one and a half years.  The adjusted parole recommendation should be five and a half years.  Accordingly his application should be granted, his appeal allowed, the sentence below varied to sentences of one and half years on all three counts concurrent with one another and cumulative upon the sentence he is currently serving, with a recommendation that he be considered for parole after five and a half years of the sentences.

PINCUS JA:  In relation to both the matters, I agree with the reasons given by Thomas JA and with the orders which are proposed in those reasons.  I was a member of the Court in the previous appeal involving these two people, which was determined on 20 March 1998. 

The only point I wish to add to what has been said by Thomas JA is that in the previous case the conviction of rape against each appellant was set aside and they were each left with a conviction of procuring.  Mr Leask has pointed out that the sentences of 12 years imposed on them then were only two years short of the maximum penalty for that offence.  I do not wish to add anything further.

THOMAS JA:  I should add that I am aware of that fact and intend to amend the reasons to reflect it.

PINCUS JA:  Yes, I see.

JONES J:  I agree with the reasons already stated by Mr Justice Thomas and the comments of the presiding Judge and I too agree with the orders proposed.

PINCUS JA:  The orders will be as indicated by Mr Justice Thomas.