SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  I agree with the reasons of Holmes JA and with the orders proposed by her Honour. 

[2]  HOLMES JA:  The applicant seeks leave to appeal against sentences imposed on him on the following counts: maintaining an unlawful relationship of a sexual nature with a child under 16 years with a circumstance of aggravation (that he indecently dealt with the child, who was then under his care); two counts of indecent dealing with a child under 16 years, again with a circumstance of aggravation that the child was under his care; three counts of indecent dealing simpliciter; two counts of assault occasioning bodily harm; and two counts of rape.  He was sentenced to five years imprisonment on the maintaining count and lesser periods on the indecent dealing and assault counts, all to be served concurrently, but cumulatively on sentences of 10 years imprisonment imposed on each of the rape convictions. 

The offences

[3] The applicant was convicted after a trial.  He was the stepfather of the complainant, having formed a relationship with her mother when she was about 11 years old.  The first of the unlawful sexual acts capable of supporting the charge of maintaining an unlawful relationship (the jury having acquitted the applicant of an earlier indecent dealing) occurred when the complainant was 12 years old and the applicant 30 years old. It was an indecent dealing: the applicant forced his penis into the child’s mouth and moved it in and out until he ejaculated in her mouth. On the occasion giving rise to the second conviction of indecent dealing, he got into the girl’s bed, put his hands into her underwear and touched her vagina.  That encounter ended when her mother entered the room and drove him out. 

[4] The next three counts were charged as rape.  In respect of the first of those counts, the complainant said that the applicant took her on a shopping trip to the Gold Coast but then diverted to a motel where he took her clothes off, touched and licked her breasts, put his fingers into her vagina and endeavoured to put his penis inside her.  She was 13, almost 14, when that event happened.  She had turned 14 by the next occasion, when the applicant gave her marijuana to smoke and while she was under its effects took her into a bedroom and removed her clothes.  He played with and licked her breasts, put his fingers in her vagina and licked her vagina.  Then, on the complainant’s account, he tried to put his penis inside her.   On the third such occasion, the complainant was 14. She gave evidence that the applicant removed her clothes, licked her breasts and vagina and again attempted penetration. In respect of each of these occasions the complainant gave an account only of partial penetration. The jury was presumably uncertain as to what extent, if any, it had occurred, because it acquitted on rape, and, as it was entitled to do under s 578(1) of the Criminal Code, returned in each case a verdict of guilty on the alternative charge of indecent dealing simpliciter.  It was not asked, when its verdict was taken, to make any finding as to circumstances of aggravation.

[5] Some months later the applicant assaulted the complainant, digging his elbow into her ribs and punching her hard in her arm (the basis of the first of the convictions of assault occasioning bodily harm.)  The only physical consequence was a temporary soreness, but after that event the complainant left home for a period and made a complaint to police about the applicant’s conduct.  She withdrew that complaint at the urging of her mother, who, the learned sentencing judge found, was in turn being manipulated by the applicant. The following year, after the complainant had turned 16, the applicant followed her into her room, removed her clothes, played with her breasts, fingered and licked her vagina and then put his penis inside her and had intercourse with her. (He was convicted of rape on that evidence.) That event resulted in the complainant’s conceiving a child. While she was pregnant, the applicant, angered by her having spent some time with a male friend, assaulted her, punching and kicking her in the stomach and hitting her to the side of the head.  She sustained bruising and lost her hearing for a few days. That event gave rise to the second conviction of assault occasioning bodily harm.

[6] After her baby’s birth, the complainant, who by then had turned 17, was living in a unit complex away from her mother and the applicant. On one occasion, for reasons which are not particularly clear, she went with the applicant in his car to a unit where she had previously lived, taking her baby with her. When the applicant drove her back to her unit, he let her get out of the car and then drove off with the baby.  He returned later and she let him into the unit so that she could retrieve her child. He took the opportunity to take her clothes off, force his penis into her mouth and move it in and out until he ejaculated.  He made her swallow the ejaculate and then raped her vaginally.  Again, the jury convicted the applicant of rape in this instance.

The judge’s approach to sentence

[7] The learned sentencing judge noted that the applicant had shown no remorse or compassion for the complainant but had, rather, boasted of his exploits in letters from jail. His conduct was a gross breach of trust, extending over years, involving his use of the vulnerable complainant for his sexual gratification. On the other hand, it was in his favour that, except in respect of the last count involving rape, he had not used gratuitous violence or threats.  In relation to the last count, however, his conduct did involve violence and degradation of the complainant in her own home with her baby nearby.  The other rape had resulted in the conception of a child, who was now out of the complainant’s care because of the latter’s psychological difficulties. The judge observed that the applicant’s criminal history was not significant. (It consisted of what might be called street offences together with some possession of dangerous drug charges dealt with in the Magistrates Court).

[8] His Honour said that he dealt with the applicant on the basis that he had maintained a sexual relationship with the complainant for at least a substantial part of the time alleged, when she was aged from about 12 to 16.  The penalty he imposed was less than it would have been had she been younger, or had the jury found that rape had occurred in the course of the relationship. In setting the sentence on the maintaining charge, he also took into account the totality principle, since he was imposing a cumulative penalty in respect of the rape convictions. 

[9] The learned judge rejected a submission on behalf of the applicant that the maximum penalty on the maintaining charge was 14 years imprisonment.  Defence counsel’s argument ran as follows: s 229B(3) of the Criminal Code, as it stood between 1 July 1997 and 30 April 2003, set 14 years as the maximum unless the offender had, in the course of the relationship, “committed an offence of a sexual nature for which [he] is liable to imprisonment for 14 years or more”; in that event the maximum penalty was life imprisonment.  The maintaining count here alleged that the relationship existed between 13 December 1994 and 27 August 1999 (when the complainant turned 16). The first two indecent dealing charges with circumstances of aggravation of which the applicant was convicted were offences committed in the course of the relationship, but at the time of their commission, between 30 November 1995 and 31 May 1996, the maximum penalty for them under s 210 of the Code was 10 years imprisonment.  The penalty for indecent dealing with a circumstance of aggravation was increased on 1 July 1997 to 20 years imprisonment; but although two of the other three offences committed in the course of the relationship were certainly committed after that amendment (in the second half of 1997), they resulted in verdicts of indecent dealing simpliciter, the maximum penalty for which was 10 years imprisonment. Defence counsel argued, on that basis, that the requirement of s 229B(3) that the applicant have committed an offence in the course of the relationship for which he was liable to 14 years imprisonment, was not met; so that the applicant was liable to a maximum penalty of 14 years imprisonment on the maintaining charge.

[10]  The learned judge rejected that argument.  He took the view that s 578 did not permit the jury to return a verdict with a circumstance of aggravation on the alternative counts, and went on to say that there was no reason to think that the jury in convicting rejected a conclusion that the complainant was in the applicant’s care at the relevant times, given the evidence to that effect.  He was entitled, he said, to determine the facts based on the evidence consistently with the jury’s verdict, and although he did not consider himself entitled to sentence on those counts as if the circumstance of aggravation had been made out, he was satisfied that the applicant had committed offences for which a maximum penalty of 14 years was provided, so that the maximum available on the maintaining charge was life imprisonment.

Error in exercise of discretion

[11]  That approach seems to me, with respect, mistaken. Section 578(5) would have enabled the jury to convict of the offences with a circumstance of aggravation, but it was not asked for such verdicts. Although the evidence did indeed, as the learned judge observed, support a finding that the complainant was in the applicant’s care, that was not the result.  Once the jury’s verdict had been returned, convicting the applicant of indecent dealing simpliciter, he had a defence of autrefois convict under s 17 of the Code and was no longer at any risk of being convicted of the offences with the circumstance of aggravation. In no sense, then, could it be said that he was liable to imprisonment for 14 years for those counts; consequently he did not meet the criterion in s 229B(3).

[12]  The learned judge erred, therefore, in approaching the sentence on the basis that the maximum penalty for maintaining the unlawful relationship was life imprisonment. His error was not directly reflected in the sentence imposed on that charge, which was moderated for the reasons he gave; but it did, in my view, affect the exercise of his sentencing discretion as a whole. That error requires that the sentence be set aside and the sentencing discretion exercised afresh.

The cases relied on by the applicant

[13]  The applicant also contended that, in the absence of any clear reason, a cumulative sentence should not have been imposed for the rape convictions.  It is not necessary to deal with that contention; of more relevance, given the view I take as to error, were submissions in support of an argument that the ultimate sentence of 15 years was manifestly excessive. Reliance was placed on three decisions of this Court.  In R v Hoban[1] the applicant was convicted, after a trial, of offences of indecent dealing, attempted sodomy, indecent assault and rape. The offences were committed against his stepdaughter over a period of eight and a half years when she was aged between 10 and 18; the rape occurred when she was 16. A sentence of eight and a half years was upheld; it was described as “on the high side but within range”. It is important to note that there was no charge of maintaining an unlawful relationship, probably because that offence was not introduced into the Code until  July 1989 and a good deal of the offending had occurred before then. The offences also pre-dated the enactment in 1997 of the serious violent offence provisions.

[14]  In R v R [2] the applicant was convicted after a trial of two counts of indecent dealing with his stepdaughter and two counts of rape of her.  She was aged between six and nine years old when the indecent dealing occurred and was about 14 at the time of the rapes. A sentence of 10 years imprisonment was set aside and a sentence of eight and a half years substituted. The offences in this case pre-dated the enactment of both the maintaining and serious violent offence provisions.

[15]  The third of the cases cited by the applicant, R v C; ex parte A-G (Qld)[3], was an appeal by the Attorney-General. The respondent there had received a head sentence of nine years imprisonment, with a recommendation for parole after four years, on one count of maintaining a sexual relationship with his daughter, with two offences of rape committed within the maintaining period and a third two months after it had ended. The respondent was the sole carer of his daughter and the offences were committed over a two and a half year period while she was aged between 13 and 16 years.  One of the rapes involved anal penetration; two involved oral sex as well as genital sex and culminated in the respondent ejaculating into the complainant’s mouth. The respondent was not violent, but the complainant submitted out of fear. On one occasion during intercourse he placed a pillow over her head for a couple of moments.  He had made the complainant use oral contraception. 

[16]  This Court, observing that “10 years’ imprisonment would mark the lowest level at which one could appropriately sentence for this offending where there has been a plea of guilty” set aside the original sentence and substituted a sentence of imprisonment for 10 years. In that case the serious violent offence provisions did apply. Counsel for the applicant here placed reliance on the fact that although one of the rapes was committed outside the period during which the unlawful relationship was alleged, the Court in R v C did not consider it necessary to impose a cumulative sentence, instead imposing the head sentence on the maintaining count and making the other sentences concurrent.

The cases relied on by the respondent

[17]  Counsel for the Crown relied on R v A[4],  in which the applicant was convicted after a trial of one count of maintaining an unlawful sexual relationship with a child under the age of 16, one count of indecent dealing, one count of attempted rape and one count of rape.  The complainant was the applicant’s foster child, and he had begun to make her masturbate him when she was three and a half years old.  When she was 10, he digitally penetrated her; when she was 11, he attempted to rape her, and did rape her when she was 14, resulting in a pregnancy.  The complainant, in consequence of her experiences, suffered from severe personality and emotional problems. The applicant had shown no remorse. An effective sentence of 15 years imprisonment was set aside and replaced by a sentence of 14 years. Because of the age of the offences in that case, they did not attract a serious violent offence declaration.

[18]  In R v GQ[5], the applicant for leave to appeal had pleaded guilty to maintaining a sexual relationship with circumstances of aggravation (rape and unlawful carnal knowledge), the relationship lasting six years; two counts of indecent dealing; two counts of rape; and one count of indecent assault. He was sentenced to 10 years imprisonment in respect of the maintaining charge, with concurrent lesser sentences on the other charges.  The child was his niece and the offending had commenced when she was in Year Five at school. The first sexual intercourse occurred when she was 11. At a time after the complainant began to tell adults what had happened, the applicant approached police and made a confession. A sentence of 10 to 12 years, taking into account his plea of guilty, was held to constitute the appropriate range, and the application for leave to appeal against a sentence of 10 years (which did attract an automatic serious violent offence declaration) was refused.

[19]  In R v BAY[6], the applicant had been sentenced to a head sentence of 12 years imprisonment on charges of maintaining an unlawful sexual relationship with a circumstance of aggravation (that the complainant had unlawful and incestuous carnal knowledge of the complainant who was his stepdaughter and was under his care); three counts of incest; four counts of sexual assault and 29 counts of indecent treatment of a child under 16 years.  Those offences occurred over a 10 year period which commenced when the complainant was seven years old.  The maximum penalty for maintaining a sexual relationship had over the period of the charges been increased to life imprisonment.  This Court concluded that 12 years imprisonment would have been appropriate had it not been for the applicant’s plea of guilty, albeit a late one, entered after the commencement of the trial.  In light of that plea, the sentence was reduced to 10 years, to which an automatic serious violent declaration applied.

[20]  Counsel for the Crown also cited R v SAG[7], not so much for its comparability as for a useful list of matters affecting sentence on the charge of maintaining an unlawful sexual relationship. It is worth mentioning the facts of the case, however. The applicant was convicted after a trial of a number of sexual offences against his three stepdaughters including charges of maintaining sexual relationships with them.  One of them had been only eight when the abuse of her began.  There were multiple instances of the girls’ being made to perform fellatio on the applicant and of digital penetration, progressing, in the case of one of the girls, to rape on four occasions.

[21]  These factors were identified in R v SAG as matters which would lead to an increased sentence:

“• a young age of the child when the relationship thereafter maintained first began;

• a lengthy period for which that relationship continued;

• if penile rape occurred during the course of that relationship;

• if there was unlawful carnal knowledge of the victim;

• if so, whether that was over a prolonged period;

• if the victim bore a child to the offender;

• if there had been a parental or protective relationship;

• if the offender was being dealt with for offences against more than one child victim;

• if there had been actual physical violence used by the offender; and if not whether there was evidence of emotional blackmail or other manipulation of the victims.”

while the following were said to go towards mitigation:

“conduct showing remorse, such as the offender voluntarily approaching the authorities, or seeking help for all the family; co-operation with investigating bodies, admissions of offending, co-operating with the administration of justice, and sparing the victims from any contested hearing.”

[22]  The applicant in R v SAG was sentenced to 14 years imprisonment in respect of the rape charges and one of the maintaining counts and lesser sentences in respect of the remaining offences. (The serious violent offence provisions applied, because the rapes seem, from the judgment, to have been committed after 1997.) Those sentences were ordered to be served cumulatively on a sentence of four years imprisonment imposed in respect of sexual offences committed on a fourth stepdaughter. This Court held that 14 years was manifestly excessive as a cumulative sentence, and ordered instead that all sentences be served concurrently.

Conclusions

[23]  The cases cited by counsel for the applicant and counsel for the Crown involve a large number of variables, not all of which are present in this case.  The aggravating circumstances here were the applicant's position of trust as the complainant’s stepfather; the length of the period (five years) over which the acts were committed; the lack of any remorse; the fact that the complainant conceived a child as a result of one of the rapes; and the use of violence in the last of the rapes. Some of the worst features of the cases cited are not present; he was not the complainant’s biological father; she was not a small child when the abuse began; there were not multiple complainants; the rapes occurred, not during the course of the relationship, but after the complainant turned 16.

[24]  Any closer comparison of the details of the cases cited is unlikely to be helpful, but the examination I have undertaken does serve to demonstrate, in my view, that 15 years is too high a sentence on the facts of this case. I do not think, for example, that the offending, gross as it was, reached the levels being dealt with in R v A, R v GQ, or R v SAG.  I would allow the application for leave to appeal, set aside the sentences, and impose sentences of five years on count 1, four years on counts 3 and 4, three years on counts 5, 6, 7, six months on count 8 and two years on count 10. On counts 9 and 11 I would impose sentences of 12 years, to be served concurrently with the sentences on the remaining counts.  The convictions on those counts should be declared to be convictions of serious violent offences. Although that is a higher sentence than one would ordinarily impose for rape in these circumstances, it is necessary that it be so, in order to reflect the overall criminality of the applicant’s conduct. The periods of one day on 24 September 2002, 1017 days between 25 September 2002 and 7 July 2005, two days between 4 February 2006 and 5 February 2006, and 32 days between 6 February 2006 and 9 March 2006, should again be declared as time served under those sentences.

[25]  JONES J:  I agree with the reasons of Holmes JA and the orders proposed.