R v L[2002] QCA 268

COURT OF APPEAL

McPHERSON JA

JERRARD JA

WILSON J

CA No 80 of 2002

DC No 2112 of 2001

THE QUEEN

v

LApplicant

BRISBANE

DATE 26/07/2002

JUDGMENT

JERRARD JA:  On the 25th of February 2002 "L" pleaded guilty to two charges.  One was that he, being an adult, maintained an unlawful relationship of a sexual nature with the complainant, a child under the age of 16 years who was to his knowledge his lineal descendant, and that in the course of that relationship he unlawfully and indecently dealt with her. 

The plea of guilty admitted having maintained that relationship between the 1st of May 1990 and the 16th of February 1991 at Benaraby in Queensland.  The second plea of guilty was to a charge of incest with the complainant on 16 February 1991 at Benaraby. 

The unlawful sexual relationship which he admitted by his plea of guilty began shortly before his daughter's 15th birthday and that relationship continued for nine months.  She was 15 when the act of incest occurred.

"L" was sentenced to four years' imprisonment on each count and recommended for consideration for release on parole after he had served 15 months of that term.  He applies for leave to appeal against both sentences, arguing that they were manifestly excessive.  He contends he ought to have been sentenced to a period of three years' imprisonment, with a recommendation that he be released on parole after serving 12 months.

The circumstances of the first offence included that on between five to 10 occasions "L" had called his daughter into the bathroom when he was showering and had her masturbate him, sometimes to ejaculation.  On other occasions he went into the bathroom when she was in the bath, and when in there he fondled her breasts, touched her on her vulva, and attempted some digital vaginal penetration. 

On other occasions he went into her bedroom and induced her to masturbate him and commit acts of fellatio upon him.  These occurred while he touched her on her breasts and on the vulva.  These incidents occurred apparently on a sporadic basis.

The act of incest occurred in his bedroom, and he desisted from the intercourse when it was plainly too painful to his daughter for him to continue.  He did masturbate himself on that occasion and ejaculated onto her stomach. 

The unlawful sexual relationship between "L" and his daughter came to an end in February 1991 when she told her mother, "L"'s wife, about what had been happening to her.  Her mother took the complainant to the Gladstone Police and to a counsellor, but apparently no "formal" complaint to those police was made and they took no action. 

The child's mother separated for a brief period from "L" but their relationship resumed and the parties moved to Western Australia, where they finally separated in or about April 1999.

In May 2000 "L", who was then living in Western Australia, was questioned by police in that State about an unrelated matter.  At that time he volunteered to those police that he had molested his daughter in Queensland some 10 years earlier, and in September 2000 "L" was interviewed by detectives in Queensland.  He admitted the offences to which he has pleaded guilty.  He also described to the police an incident about which his daughter had not made a complaint, occurring in the backyard of their property when he and his daughter were both naked.

The applicant points to the fact that there would have been no proceedings against him had he not volunteered these offences to the Western Australian Police in May 2000.  He also points to his having voluntarily begun a course of counselling with Safe Care in Western Australia in May 1999.  He attended five out of a possible 10 weeks of an introductory group program, then some individual sessions, and then 35 out of 39 group treatment programs between the 17th of July 2000 and July 2001.

He was assessed in September 2001 as having made considerable progress over his time of attendance at Safe Care, and having gained insight into some of the explanations for his own offending against his daughter, together with a better understanding of the damaging impact his behaviour had had on her.  His ex-wife and his two youngest sons also attended Safe Care, apparently at his instigation, as did his current partner and her two daughters from an earlier marriage.

There can be no doubt that the applicant's own volunteering the fact of his offences and of the steps he took to understand the significance to his daughter of his offending behaviour tell in his favour in mitigation of the appropriate sentence. 

However, I consider that an examination of the extensive list of comparative sentences provided by the prosecution in respect of matters of incest, and matters where there has been a conviction for maintaining an unlawful sexual relationship with a daughter, show that without those mitigating factors the appropriate sentence for imposition upon "L" would have been a sentence of at least five years' imprisonment, and perhaps six years.  For example, in the matter of R v B [2000] QCA 42, a 63 year old man with limited life expectancy and no criminal record, who was sentenced for two counts of incest committed 20 years earlier, did not succeed in having overturned the sentence of six years with a recommendation for release on parole after two years.

It was remarked in the judgment of the Court that a sentence of imprisonment for six years was in accordance with the decision of the matter of R v G, reported in [1997] 1 Qd R 584.  On the hearing of the instant appeal, there were no judgments of this Court referred to since its judgment in R v B suggesting that any lower level of sentence than six years would have been appropriate absent the mitigating factors I have mentioned.

The applicant has referred to sentences imposed in a number of matters in which there was not a conviction for incest, but in which a male offender had been guilty of maintaining a sexual relationship with a daughter or stepdaughter, or both. 

I think those cases show that, absent the commission of the act of incest, "L" may have had an arguable case for a lower head sentence from the sentencing Judge.  For example, in the matter of R v C, No 170 of 1994, an offender who maintained an unlawful sexual relationship with his daughter was sentenced to three years' imprisonment after a trial.  Likewise, in the matter of R v L, an offender maintaining a relationship with his daughter received a similar sentence after a trial.  Those sentences were not altered by this Court.

However, the cases referred to by the applicant are not all one way in his favour.  In the matter of R v G, No 168 of 1992, an offender who maintained a sexual relationship with his daughter, which included an act of incest for which he was not separately convicted, received a sentence on appeal of four and a-half years' imprisonment after a plea of guilty.  That sentence was reduced from one of seven years originally imposed.  This Court when reducing that sentence remarked that it was proper to look at sentences imposed for incest as affording a guide to the appropriate sentence, in a case of the nature of R v G.  Those remarks were made some eight years before the judgment of this Court in R v B.

Further, in the matter of R v S [2001] QCA 054, an offender who pleaded guilty to a count of maintaining an unlawful sexual relationship with his stepdaughter, to 21 separate counts of indecent treatment of that stepdaughter, and to one further count of indecent treatment of his natural daughter, had his sentence of six years' imprisonment with parole recommended after serving two years reduced on an appeal to this Court, to a sentence of four and a-half years' imprisonment with parole recommended after 18 months.

That offender was considered to have very strong circumstances of mitigation that he had himself voluntarily sought out the police, to whom he had confessed his serious wrongdoing; and had then arranged counselling for himself, his complainant daughter and other members of his family.  Mr S's apparently genuine contrition does seem to have gone further than "L"'s.

In the circumstances, it appears to be that the matters which may properly be urged in mitigation on "L"'s behalf have been appropriately taken into account in the sentence of the learned trial Judge, as demonstrated by his sentencing remarks and the orders he made.  The sentence does not appear manifestly excessive by comparison with sentences imposed by this Court where incest has been proven.

In my judgment, although ably presented, the application for leave to appeal against sentence should be dismissed.

McPHERSON JA:  I agree.

WILSON J:  I agree.

McPHERSON JA:  The order is that the application for leave to appeal against sentence is dismissed.