R v RDD[2004] QCA 403

SUPREME COURT OF QUEENSLAND

McPHERSON JA:  On 18th of June 2004, the applicant pleaded guilty in the District Court at Ipswich to a total of 55 offences committed against his five children.  The offences consisted of 18 counts of incest, 16 counts of committing an unnatural offence, which is carnal knowledge of his children, six counts of attempting to commit an unnatural offence, four counts of indecent treatment of a boy under 14 years of age, five counts of indecent treatment of a girl under 16 years of age, four counts of indecent assault on a female, one count of an indecent act and one count of attempted incest.  A number of the acts of carnal knowledge of his children counted as incest even in those days and carried with them, at that time, the penalty of life imprisonment.

He was, in fact, sentenced to 14 years' imprisonment for each of the 18 counts of incest to be served concurrently and he was given lesser concurrent terms of imprisonment for the remainder of the offences.  It was recommended that he be considered for parole after serving six years of the sentence imposed.  This is an application for leave to appeal against sentence on the ground that the sentence is manifestly excessive.  In particular, it is submitted by defence counsel, that the sentencing Judge should have recommended the applicant for parole after four rather than six years.

All, except one, of the applicant's offences were committed in a nine year period between 1969 and 1977 when he was between 39 and 47 years of age.  He was married with five children.  He worked for a State entity which, in 1968, transferred him to Mt Isa and his family moved with him to that town.  As a father he disciplined his children strictly including doing so by hitting them with an electric cord, and it is clear that they were afraid to disobey him or question his authority in any respect.

The applicant began to molest his three children in 1969.  The eldest child R was then 15 when the applicant woke him up one night and sodomised him.  He later sodomised R in front of his younger brother L, and made R and his younger brother sodomise each other while he watched them do so.  The offences against R ceased at the end of 1970.

The second eldest child L was 12 or 13 when the offences against him began.  The applicant sodomised him and made him sodomise his brother and his sister while the applicant watched.  In addition to this, the applicant made L have sexual intercourse with his mother. 

Perhaps the most serious of these appalling offences were committed against his daughter E.  E was 12 years old when the applicant attempted to put a pencil in her vagina.  At one stage, she complained about the abuse to a member of their church but the applicant found out about this and the next day, in retribution for the complaint, he sodomised her and unsuccessfully attempted to get a pet dog to mount her.

In 1973 the applicant forced E to have intercourse with him.  She screamed and tried to resist him but he threatened to strangle her if she did not stop screaming.  The facts of this particular offence, as they were presented without objection, to the sentencing Judge really amounted to rape although that was not the offence charged.

The applicant, as has been mentioned before, also procured E to have vaginal and anal intercourse with her brother L.  On her 18th birthday, when she was seven months' pregnant to her boyfriend, the applicant again had vaginal intercourse with her and he did so again on other occasions during her pregnancy.

Two of the complainants E and L complained to a member of the applicant's church about his conduct.  They were, unfortunately, not believed and the abuse continued.  The fact that they were not believed after making a complaint would, no doubt, have exacerbated the emotional impact of the offences that he had committed on them.

The applicant also pleaded guilty to attempting to have unlawful carnal knowledge of J, his younger daughter, who was intellectually disabled and of indecently assaulting his other daughter N in 1987, which was the last of his offences and somewhat separated in time from the others. R, L and E complained to the police about the applicant in May 2003.  The applicant was interviewed by police in August of 2003, at which time he made admissions to the police and also volunteered some offences that the complainants themselves could not recall.  He did first deny having committed count 14, procuring L to have intercourse with his mother and count 31, attempting to procure E to have carnal knowledge of an animal, but he later pleaded guilty to all of the offences alleged against him.

The applicant's pleas of guilty were entered after a full hand-up committal which would have saved the complainants from the trauma of giving evidence as well as saving the public the expense of a trial.  The applicant appears to have been, in the end, genuinely remorseful for his crimes, and so, of course, he ought to be.

The applicant is now 73 years of age.  He suffers from various health problems including poor hearing, high blood pressure and stomach ulcers.  He had a minor stroke last year.  It has now been 28 years since the majority of the offences were committed between 1969 and 1977. 

His counsel, at sentencing, submitted that because of his age and the period of time that has elapsed since the offences he is a low risk of recidivism.  One should certainly hope so.  He had no previous convictions before and apart from these offences. 

The prosecutor, at sentencing, asked for a sentence of 12 to 14 years to be imposed which took into account the mitigating circumstances, such as they were, in the applicant's favour.  The learned sentencing Judge, in her sentencing remarks, described these offences as being "persistent acts of moral depravity" by a father towards his own children.

Her Honour expressed the view that this case was in the worst category and, if there had been a trial and disregarding the applicant's age, the sentencing range of 18 to 20 years would have been appropriate.  However, after taking into account the applicant's guilty plea, his remorse and his age, the sentencing Judge imposed a sentence of 14 years' imprisonment and made a recommendation for parole after six years.  Counsel for the applicant contends that the recommendation for parole should have been ordered to take effect after four instead of six years.

At this hearing, the applicant's substantial complaint is that the learned sentencing Judge adopted too high a starting point of 18 years or more before reducing the sentence to 14 years and recommending parole after serving six years of the sentence. 

It was submitted by Mr Moynihan that such a starting point was outside the scale of sentences referred to in the exhaustive survey by Jerrard J in Queen v SAG [2004] QCA 286.  His Honour's reasons in that case, however, refer, in paragraphs 29, 31 and 32, to cases in which 16 and 17 year terms of imprisonment were respectively imposed on the offenders in those instances after taking account of other factors including, in particular, factors going in mitigation.

I would also add a reference to R v D [2003] QCA 547, in which two life sentences were imposed for a series of offences committed on 62 different girls over a period of 28 years by a man who was 45 years at the time of latest offence.  Most of the victims were members of his church group, but they also included his sister, two of his own daughters and a niece.  The total of 116 offences to which he pleaded included unlawful sexual intercourse and maintaining a sexual relationship, but many of the 55 unfortunate victims were subjected to "only" lesser offences of indecent dealing.

R v D [2003] QCA 547 plainly involves a more serious course of offending from that displayed here.  So much is, in fact, reflected in the sentences imposed on him.  This applicant preyed exclusively on his own children; but, in so far as that might be thought to go in his favour, his conduct was accompanied by physical brutality and personal humiliation in his commission of offences which crossed well over boundaries of natural gender and family relationships.

His is the worst case of paternal tyranny I have ever encountered in my time on the Bench.  He should, I think, be punished accordingly.  His age and state of ill-health attract sympathy; but it is, I think, impossible, at this late stage, to fashion any sentence which would punish him appropriately for the immense wrongs he has done while also giving effect or consideration to all the disadvantages of age and ill-health to which he has now become subject.  If he had volunteered his guilt at an earlier stage of life he would not have been enjoying his freedom when he was a good deal younger.  His delayed confession cannot be used, I think, to make him immune from appropriate punishment or to reduce it now to any greater degree than was allowed by the learned sentencing judge.

Taking into account these and all other factors, including his age and his state of health, I think the penalty imposed by Judge Richards in this instance was appropriate, and I would dismiss the application for leave to appeal.

DAVIES JA:  I agree.

FRYBERG J:  I agree.

McPHERSON JA:  The application for leave to appeal is dismissed.