SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The applicant pleaded guilty to seven counts of permitting abuse of a child under 16 on premises and one count of indecent treatment of a child under 16.  The offences occurred on various occasions between 1 December 1995 and 30 September 1996.  She was sentenced on 20 December 2005 to three years imprisonment with a recommendation for post-prison community-based release after 12 months.

[2] The sorry and sordid tale of these offences is as follows.  The applicant was between 33 and 34 years old at the time of the offences and 43 years old at sentence.  The two complainants, K and M, were her twin daughters who were aged between 12 and 13 at the relevant times.  The applicant allowed the perpetrator of the unlawful carnal knowledge offences on the complainants, a young man, C, to live in the family home.  He was about 19 years old when the offending commenced.  K and M became besotted with him and competed for his affection.  The applicant allowed them all to have sexual intercourse in her home.  She advised K and M to use birth control to avoid becoming pregnant and to use condoms to avoid a mess if they were using her bed.  It seems she had difficulty exercising control over the girls.  Both daughters twice became pregnant to C during the course of their relationships.  C and M's sexual relationship in the family home continued until some time in 1998 when they moved elsewhere.  C and K's sexual relationship continued until some time after 2001.  M gave birth to a child in early 1997 shortly after she had turned 14.  Eighteen months later she gave birth to another child when she was but 15 years and nine months.  K gave birth to a child in 1997 when she was 14 years and nine and a half months and to another child in June 2001 when she was 18.  The period of the applicant's offending was, however, between December 1995 and September 1996.

[3] The offence of indecent dealing occurred when M's younger sister, J, saw the applicant, with C next to her, holding a bottle of blue food colouring whilst M lay on the bed.  M was yelling and upset and cried as she left the room that C and the applicant had just dyed her "pubies".

[4] Each of the applicant's offences was punishable by a maximum term of five years imprisonment.

[5] C was ultimately sentenced, following a successful appeal to this Court, to five years imprisonment with a recommendation for post-prison community-based release after 18 months for two counts of aggravated maintaining a sexual relationship punishable by a maximum sentence of fourteen years imprisonment:  see R v MAN.[1]

[6] The applicant's culpability in these offences is better understood after reading the psychiatric report of Dr Peter Fama, tendered at sentence.  He considered that she is within the upper range of "mild mental retardation" with an IQ of between 60 and 70.  She has six children and 10 grandchildren but is not in regular contact with them other than her intellectually disabled daughter 18 year old son, F, with whom she was living at sentence.  She spoke occasionally by telephone to her complainant daughter K and to another daughter, J, aged 19.  The applicant readily admitted that she had done wrong in her involvement in the offences.  She had an even more squalid and degenerate family upbringing than that she provided for M and K.  When she was 15 and pregnant to her abusive stepfather, her parents induced a late term abortion and deliberately killed the child at birth, burning him in a backyard incinerator.  The applicant was sexually abused by both her stepfather to whom she had a daughter, S, and by her stepgrandfather.  Later her husband was convicted of indecently dealing with S and sentenced to five years imprisonment.  Dr Fama opined that with this background and with her "mild mental retardation" it is scarcely surprising that her adult sexual standards "have turned out to be quite slack".  Dr Fama concluded that the applicant had "mild mental retardation with significant impairment of behaviour";  no personality disorder although she has been impaired by dependent and inadequate traits in her relationships with others;  there is no history of violent or aggressive tendencies;  there has been no indication of any significantly excessive drinking or use of illicit drugs;  a community sentence would be appropriate;  she is capable of adhering to reasonable terms for reporting and for any community work prescribed;  she no longer has any vulnerable children in her care and reoffending is not possible unless she were deliberately to seek out a fresh set of adverse living circumstances, a most unlikely event;  she is no danger to the community in general.  Nothing in Dr Fama's report was disputed by the prosecutor at sentence.

[7] In a victim impact statement the applicant's daughter, K, with a remarkable degree of compassion and insight, observed "... how my mother raised me was wrong and I believe that my mother needs help and has for a long time.  She had a very bad upbringing and I think that she hasn't dealt with those issues and I think this is an opportunity for you to get her some help because sending her to jail won't help her at all, it will just make things worse.  I know my mother very well and as her daughter I would be very upset if she doesn't seek help for her problems.  In my eyes my mother has a mind of a young teenager and not an adult that she appears to be.  She doesn't deserve jail time.  What she needs is someone to help her realize what she did to her children was wrong and one day she might just apologize for the way she brought up her girls."[2]

[8] The prosecutor at sentence contended that the applicant's gross dereliction from her parental duty warranted a sentence of three to four years imprisonment.  Defence counsel at sentence contended that, because of her intellectual disability and her own dysfunctional upbringing, a probation order with medical and psychological treatment or a wholly suspended term of imprisonment should have been imposed.

[9] The applicant, despite her intellectual disability, was self-represented in this hearing.

[10]  In supporting the sentence imposed the respondent can refer, hardly surprisingly, to no comparable cases other than the matter involving the co-offender, R v MAN.  It is not, however, comparable in the sense that C pleaded guilty to more serious offences punishable by 14 years imprisonment and committed over a period of about three years while this applicant's offences were punishable by five years imprisonment and committed over a nine month period.

[11]  The respondent emphasized that the applicant supported C in his appeal and provided him with statements in which she blamed her young adolescent daughters for the offences.  The respondent contends that this shows a lack of remorse and insight.  That may be so.  It is however consistent with her "mild mental retardation" and her inadequate and dependent traits in her relationships with others referred to by Dr Fama.  Intellectually disabled people cannot be expected to have normal insight into their behaviour, especially with the grossly dysfunctional background of this applicant.

[12]  Her conduct in the commission of these offences was unquestionably a gross abuse of parental trust and responsibility.  K and M were entitled to expect maternal protection and guidance in their early adolescence but instead the applicant did nothing to discourage C's unlawful behaviour and on one occasion, perhaps in a misguided prank, humiliated her daughter M in a sexual way in his presence.  There was, however, no exacerbating feature such as physical cruelty, sexual gratification or financial gain.  Taking into account the maximum penalty of five years imprisonment and the nature and number of her offences, despite her plea of guilty, her conduct would ordinarily have warranted a head sentence of three or perhaps even four years imprisonment to reflect society's disapprobation and principles of general and individual deterrence.  As this Court noted in MAN, the circumstances of this case were, however, anything but ordinary.  The facts presented to the sentencing judge and to this Court concerning the applicant, which were not disputed by the prosecution, reaffirm that conclusion:  she has mild intellectual retardation and had an horrific dysfunctional upbringing so that she was unable to be a fully responsible parent.  Those contentions were supported by the statutory declaration tendered at sentence from her complainant daughter, K.  Despite the serious aspects of the offending which, as the learned primary judge noted, warranted a salutary deterrent penalty, these special factors, including the best interests of the complainants who may well continue to have a relationship with the applicant in the future, support her release after a comparatively short time in prison on a well‑structured programme of community supervision such as that offered by post‑prison community-based release.  The sentence imposed by the judge did not give adequate weight to these unique circumstances.

[13]  I would grant the application for leave to appeal against sentence, allow the appeal and instead of the sentence imposed at first instance order that the applicant be sentenced to 25 months imprisonment with a recommendation that she be eligible for post-prison community-based release after serving eight months imprisonment.

[14]  WHITE J:  I have read the reasons for judgment of the President where the facts of this application for leave to appeal against sentence are set out.  Whilst those facts are sordid enough they did not, as the President has observed, have the exacerbating features such as physical cruelty or sexual gratification or financial gain of some of the cases.  I agree with the President that this applicant and the community generally will best be served by a relatively short period of imprisonment which denounces the conduct of the applicant to be followed by a structured program of supervision.

[15]  I agree with the orders proposed by the President.

[16]  PHILIPPIDES J:  I agree with the reasons for judgment of McMurdo P and with the orders proposed.