R v BZ[2003] QCA 26

SUPREME COURT OF QUEENSLAND

McPHERSON JA:  This began as an appeal against conviction on an indictment that charged two counts of indecent dealing committed on the complainant when she was under 16 years (counts 1 and 2), one count (count 3) of unlawful carnal knowledge committed on the same complainant when she was a child under 16, and 35 counts of incest on the complainant after she had turned 16.

The offence charged in count 1 was alleged to have been committed between 1st January 1983 and 1st January 1984 at a time, when the complainant was aged seven.  Count 2 related to the period between 22nd April 1985 and 17th June 1988, when she was aged between nine and 11 years old.  Count 3 between 1st June 1992 and 30th September 1992, when she was aged 15 and a half years.

The complainant was the appellant's stepdaughter and the first of the acts of incest with which he was charged, which was in count 4, was alleged to have occurred on 10th July 1997 when the complainant was 20 years old, while the last, count 38, was alleged to have occurred when she was 24 years old in September 2000.

On one of those counts, that is, number 35, there was, for reasons not entirely clear to me, an acquittal.  That can make no material difference to the overall result of this matter.

The appellant was acquitted of count 1, but was found guilty of all of the other charges apart from count 35.  The notice of appeal challenges the conviction on count 2 on a number of separate grounds such as lack or particularity in the evidence adduced to prove the charge, inconsistency with the verdict of acquittal on count 1, and the inadmissibility of certain video tapes tendered by the prosecution.  In the light of events that have now taken place it is not necessary to consider these grounds in any detail or at all.

When the complainant was born in 1976 her mother was married to her father.  Her mother parted from her father and married the appellant in May 1984 at a time when the complainant was about seven or eight years old.  She then had two brothers or stepbrothers who were younger than she, and another child or children were later born to the appellant and her mother after they married.  She lived with the appellant and her mother at various places in southeast Queensland. 

In sentencing the appellant in this case his Honour said the complainant was under the appellant's dominance and control, and there can, I think, be no real doubt about that.  The appellant pleaded not guilty to all the charges but at the trial he seems to have admitted to the offence in count 3, unlawful carnal knowledge, without formally pleading guilty to it.  That he should have admitted it is not altogether surprising because the complainant gave birth to a child in March 1993 of which the appellant has admitted to being the father.  The act of intercourse to which this child can be traced must, therefore, have taken place when she was about 15 and a half years old, which is sufficient, taken together, to establish the offence of count 3 of unlawful carnal knowledge with a girl under 16 years of age.

As I have already said, the appellant was acquitted at trial on count 1.  As to count 2, the Crown now concedes that, because of the lack of particularity, the conviction on that count cannot be supported.  The appeal in respect of that count must, therefore, be allowed.

That leaves for consideration the 34 counts of incest of which the appellant was convicted.  Assuming that the appeals against convictions on those counts are still being pursued, which, I think, is not the case, there was and is ample evidence to support them.  The appellant had a practice of making video recordings of his sexual encounters with the complainant, many of which took place in a nearby State forest.  Three of those tapes were admitted in evidence showing acts of sexual intercourse taking place between the appellant and the complainant on various occasions.

The appeals against conviction on those counts and on count 3 must, in the light of what I have said, now be dismissed.  The result is that the proceedings before this Court are in substance limited to the question of sentence against which leave to appeal is sought.

The sentence imposed at trial was imprisonment for three years concurrent on each of counts 2 and 3 and a further four years imprisonment in respect of the 34 counts of incest of which the appellant was convicted, which sentences were to be served concurrently but cumulatively on a sentence of three years on counts 2 and 3, so making a total of seven years imprisonment in all.

His Honour also imposed reporting conditions in respect of change of name or address for a period of 10 years after release from prison and there is no appeal against that order.

In arriving at the sentence imposed the learned sentencing Judge recorded that among the factors influencing him were the lack of remorse on the part of the appellant, the fact that the complainant had been abused by her stepfather in gross breach of his position of trust, and that it was a bad case of sexual exploitation of a woman by a stepfather.

Some of these observations may now need to be reconsidered in the light of the Crown's concession in relation to count 2 and the allowing of the appeal against conviction on that count.  Apart from the 34 counts of incest of which he was convicted, we are now looking at conviction for a single count of unlawful carnal knowledge committed on a 15 and a half year old girl in a home environment in relation to whom the offender was her stepfather.

In R v. T, ex parte Attorney-General ([2002] QCA 30) this Court on an Attorney's appeal increased the sentence from two years to three years for two counts of unlawful carnal knowledge committed by a stepfather in a home environment.  The Court also removed a recommendation for parole which had formed part of the sentence.

There, however, the complainant was only 12 years old at the time of the first offence and the discrepancy in ages between them was some 30 years, whereas (for what it matters) here it was 20 years.  He was 46 years old at the time of sentencing in 2002 and she was about 24.

On the other hand, the act of intercourse in the case before us resulted in the birth of a child in March 1993 when the complainant was only 16 years old.  Another child was born of them in May 1997.  It should be kept firmly in mind that the appellant was not charged with incest in respect of the act of intercourse giving rise to count 3.

The first of the incest charges, which was count 4, was, as I have said, alleged to have occurred on 10th of July 1997 and the remaining 34 charges were alleged to have been committed more or less continuously from then on through to September 2000 at a time when the complainant was 23 going on 24 years of age.

The decision in R v. T has, in my own experience, since been treated in at least one subsequent appeal as setting something of a benchmark for unlawful carnal knowledge cases of this general kind.  I say "general kind" because in The Queen v. S [2002] QCA 106, the complainant was a 21 year old woman, who, however, was suffering from a moderate degree of intellectual impairment calling for 24 hour care and the offender was the de facto husband of the complainant's mother.  In relation to the carnal knowledge charge, the appellant also pleaded guilty to indecently dealing with the complainant.  The sentences imposed there were three years and 18 months respectively, both suspended after nine months.  It is important to notice that that was an application for leave to appeal against the sentence which was an application by the person sentenced.  The application was dismissed.

Mullins J has since referred me to a case of R v. Waera (no 287 of 2002) in which a sentence for unlawful carnal knowledge of a woman who was intellectually impaired was increased from three years to five years.  I mention it because I would not have it thought that R v. T in some way fixes a maximum for cases of that kind, namely, women suffering from a moderate degree of intellectual impairment who are the victims of an offence of carnal knowledge like the present.

Again, however, as in R v. T, the act of intercourse in R v. S did not result in the birth of a child as it did here.  Giving birth to a child is, of course, a natural, even if not inevitable consequence of sexual intercourse, and if precautions are not taken to avoid it, it may be considered to be something with respect to which an offender takes the risk upon himself, while leaving the victim, that is, the girl or woman against whom he has offended, with the child, together with all the emotional and other problems which it entails.

In the present case, the appellant claimed in the police interviews that he was approached by the complainant saying that she wished to have a baby, a request with which he says he agreed and complied.  To my mind it is a very serious breach of responsibility on the part of a man of his age and position as the stepfather of an adolescent girl in his care, for him to have acted in that way, and I see no reason for reducing the sentence on count 3 to a level below the three years imposed.

In addition, it should be noticed that the appellant has a record of previous convictions of which several are for offences of dishonesty.  What is more significant, two in 1977 were for indecent dealing with a girl aged six or seven who, it appears, was his niece.  For this he was sentenced to concurrent terms of imprisonment amounting to nine months in all.

As regards the 35 incest charges, it is a historical fact that sexual intercourse by a man with a woman or girl who is his stepdaughter and, therefore, not naturally a lineal descendant, was not made an offence in Queensland until mid 1997, which explains why the first of the incest counts in this indictment is charged as having occurred in July of that year.  The offence carries the same penalty of a life term of imprisonment as does incest with a natural lineal descendant which would, I imagine, continue to be regarded by most members of the public as a more serious version of the offence.

Decisions like R v. B [2000] QCA 42 dismissing an appeal against a six year sentence for incest with a natural lineal descendant may therefore be, to some extent, distinguishable on that basis.  It nevertheless remains the fact that the legislature chose to equate an offence like this committed by the appellant with the offence of lineal incest, as I will call it here for want of a better description.  In doing so Parliament might have been influenced by the notorious fact that many of the cases which come before the courts involve the commission of acts of carnal knowledge by stepfathers, and consequently decided on the legislative change in the hope that it would serve as a deterrent against such conduct.  It remains generally true to say, however, that this new statutory form of incest does not involve the eugenic risks inherent in the original form of the offence.  The incidence of congenital defects in the offspring of such encounters is widely reported to be very high.  Acts of sexual intercourse in those circumstances have tragic results for the unoffending children who are born as a result, and for those who have to look after them.  It is, of course, not a risk that the appellant took in the present case; but, at the same time, the offence remains a serious one and the legislature intends that it should be approached in that way.

In the present case it seems to me to be plainly open on the material before the Court to say that it was the carnal knowledge in count 3 committed in 1992, resulting in the birth of the first child in 1993, that opened the door to the later numerous and continuing offences of incest by the appellant in this case.  To that extent some of his Honour's sentencing remarks hold good even after the conviction on count 2 is taken out of consideration.  Contrary to Mr Meredith's submission, it is, however, not possible for the court to punish the appellant for sexual acts committed by the appellant of which he has not been either charged or convicted: R v. D [1996] 1 Qd.R. 363.

Viewing the appellant's conduct overall, but in the light of the difference caused by removing the conviction on count 2, the 34 offences of incest perhaps lose some, but not much, of their seriousness.  In effect the appellant debauched this girl when she was under age and set her on a path to committing numerous later acts of incest with him.

I would allow the appeal against sentence to the extent of reducing the sentence on each of counts 4 to 38, in respect of which he was convicted, from four years to three.  The outcome will therefore be, I suggest, as follows:

1.Appeal against conviction on count 2 allowed.  Conviction and verdict set aside.  Judgment of acquittal entered on count 2;

2.Otherwise appeals against conviction dismissed;

3.Appeal against sentence allowed to the extent of reducing the sentence on each of counts 4 to 38 in respect of which the appellant was convicted from four years to three years imprisonment.

THE PRESIDENT:  I agree with the orders proposed by Mr Justice McPherson.  The appellant's conviction on count 3; when the complainant was only 15 years old, demonstrates that the subsequent offences arose out of the exploitation of the complainant, a minor, by her step-father.  The subsequent birth of a child arising from the appellant's offending in count 3 is a serious aggravating factor.

The applicant does not have the mitigating advantage of an early plea of guilty.  He has shown no remorse.  He has prior convictions in 1977 for sexual offences committed upon his six or seven year old niece.  His acquittal now on count 2, however, warrants some discount in the sentence imposed at first instance.  The order proposed by Mr Justice McPherson is appropriate.

MULLINS J:  It has been necessary to review the sentences imposed by the learned sentencing Judge because the conviction in respect of count 2 was set aside.  One issue arose as to whether there should be cumulative or concurrent sentences.

The circumstances surrounding count 3 involve sufficiently different factors to the subsequent offences of incest to justify the structure of the sentencing which the learned sentencing Judge applied.

I therefore agree with the reasons of his Honour, Mr Justice McPherson, and the orders proposed.

THE PRESIDENT:  The orders are as proposed by Mr Justice McPherson.