SUPREME COURT OF QUEENSLAND

[1]  WILLIAMS JA:  The appellant was convicted after a trial on 26 April 2006 of one count of sodomy, eight counts of incest, two counts of rape and one count of indecent treatment of a child.  He had at the outset of the trial pleaded guilty to a further 19 counts involving sexual abuse of young children.  The one count of sodomy, the two counts of rape and seven of the counts of incest involved the appellant's natural daughter.  She was aged about six when the offence of sodomy was committed and about 18 when the offences of rape occurred; the other offences occurred when she was aged 17 to 18 years.  The remaining count of incest and the count of indecent treatment involved the appellant's young niece. 

[2] The other counts involved his stepdaughter, the niece, and two other girls who were friends of the other victims.  All the offences involving those four girls occurred when they were under the age of 16 years.  There were numerous counts of carnal knowledge.  There were also two counts of maintaining a sexual relationship with a child under the age of 16 years.

[3] Most of the offences occurred in the context of the appellant providing the girls with money, alcohol and drugs in return for sexual favours.  A perusal of the record reveals an appalling state of affairs. 

[4] Various sentences were imposed with respect to the 31 counts on which the appellant was convicted.  He was sentenced to 13 years imprisonment on each of the counts of rape, 10 years imprisonment with respect to each of the counts of incest involving his daughter, eight years imprisonment for the count of sodomy, nine years for the count of incest with his niece, eight years imprisonment for each of the offences of incest involving his stepdaughter, eight years for each of the offences of maintaining a sexual relationship with a child under the age of 16, and lesser sentences with respect to the other counts.  All of the sentences were to be served concurrently.  The head sentence was thus 13 years imprisonment with respect to the rape charges.

[5] The appellant has appealed only against the convictions for the two counts of rape and also contends that the sentence of 13 years imposed with respect to those counts was manifestly excessive.  He appeared for himself on the hearing of the appeal and presented to the Court a lengthy handwritten document indicating his position.

[6] In that material he candidly admits to the commission of most of the 31 offences.  He denies the rapes and contends that those convictions are unsafe and unsatisfactory because the only evidence as to the rape came from his daughter.  He says that the prosecution did not provide any other evidence supporting those charges.  Corroboration is not required as a matter of law, and in any event there was ample evidence supporting generally his daughter's evidence.  Even in situations where corroboration was required for the offence of rape it was not necessary that the corroboration specifically relate to the absence of consent. 

[7] The appellant also complains that his legal representatives did not pursue certain lines of cross-examination of some Crown witnesses.  But he has not demonstrated that any such failure, particularly given the totality of the evidence against him, resulted in the convictions for rape being unsafe and unsatisfactory.  He also complains that some letters he wrote were not placed before the jury.  Some were, but again it has not been established how the non-production of that material resulted in the verdicts being unsafe and unsatisfactory.  The letters that were tendered were agreed to by counsel. 

[8] There were inconsistencies in his daughter's account, particularly in relation to the counts of rape.  But those inconsistencies were drawn to the jury's attention and it was a jury question whether or not they were such as to render the complainant's evidence unreliable with respect to those specific accounts. 

[9] In 1999 the complainant daughter had returned to live in the Northern Territory where her mother resided.  She fell pregnant to a boyfriend and for medical reasons it became necessary to terminate that pregnancy.  Arrangements were made for that procedure to be carried out in South East Queensland and against that background the complainant daughter returned to live with the appellant.  On her evidence the appellant paid a considerable sum of money, probably more than $1000 towards the cost of the procedure in question; he asserts now he paid more.  The complainant's evidence was that before the procedure was carried out the appellant demanded sex as a recompense for his outlaying the money in question.  The complainant's evidence in chief with respect to the first count of rape relevantly was as follows:

"I was upstairs in a bathroom and – and my father came in and I was pregnant and he said, you got to pay for a flight and everything.  And he said, he wasn't going to pay for it … I was really frightened … I felt like I had no choice and so, he did it to me while I was pregnant in the bathroom … Just that if I didn't do it, he wasn't going to pay for it and – and I was terrified, so – and then – yeah, I don't know, I just ended up just leaning against this hand basin and – I always did that.  And just pulled my pants down and – and he didn't have any KY or anything like that.  So, he had to spit on himself to get lubrication … I don't know if I said, yes or whatever but I don't think I would have just said, yes.  He would have been him just – he would have been just doing it, kind of thing.  … I don't remember if I said, yes or no or what happened."

[10]  In other words her case was that because of her condition she did not consent to sex but ultimately was prevailed upon by the appellant to submit otherwise the funding would be withdrawn. 

[11]  Then after the procedure had been carried out, and the complainant was still bleeding, the appellant again demanded sex as recompense for his outlay.  The complainant's evidence in chief in relation to the second count of rape was relevantly as follows:

"I wasn't supposed to have sex for six weeks.  … I can't even actually recall, like where the actual incident took place, but I know like he grabbed me and dragged me into a room, but I don't know which one.  And, yeah, kept on saying, you know, he’s not going to let me go home unless I pay my way kind of thing.  And that was through sex.  … [He said] why should you get anything for f-ing free?  Your boyfriend should’ve paid for all this, and I should be getting something out of it. … I know I was leant over a bed, and he – I think he had hold of me.  And, like, I am not too sure where.  But, you know, I think it was like the back of my neck on my shirt or something like that.  And, yeah, I think he pulled my underwear down and held me, and like had sex with me, well raped me."

[12]  Then in answer to a specific question she said she did not consent to the appellant having sex with her on that occasion. 

[13]  The complainant was cross-examined about those matters, and relevantly the following exchanges occurred:

"Q.  Now, you arrived down and you say that this incident occurred – this – your father demanded sex from you in payment for the contribution that he was making to this procedure? – A.  Yep.  That’s correct.

17. Alright.  And you said in your evidence that if he didn't do it, he wasn't going to pay for it? – A. That’s correct. 

…

17. And then, this incident occurred in the bathroom at the house?  - A.  That’s correct.

…

17. And your suggestion that your father had sex with you whilst you were bleeding?  - A. Yes.  That’s correct.

17. And where do you say that second incident occurred?  - A. I believe the second incident was in the bedroom …

…

Q.  I suggest to you that this – none of this happened at all.  You certainly came down for the procedure which your father paid for but none of these incidents, these sexual incidents that you’ve described occurred?  - A. I remember they did."

[14]  It was clearly open to the jury to be satisfied beyond reasonable doubt that, particularly given her medical condition, the complainant did not consent to intercourse and only allowed it to happen because of the threats to which she was subjected.  It has not been demonstrated that there was any error by the trial judge in summing up on the rape charges.

[15]  It has to be said that the circumstances resulting in the two counts of rape, particularly the first, did not materially differ from the circumstances in which many of the counts of incest occurred.  In many instances incest followed heavy importuning, and plying with money, drugs and alcohol.  But the fact that the prosecution was content to charge incest only in most cases does not detract from the fact that two cases were isolated out because of the specific circumstances in which they occurred and made the subject of a charge of rape.  That does not mean that there is anything unsatisfactory about the verdicts of guilty. 

[16]  In all the circumstances neither of the rape convictions can be said to be unsafe and unsatisfactory.

[17]  A sentence of 13 years imprisonment in the circumstances is not manifestly excessive.  If such a sentence was not imposed as the head sentence on the rape counts, it could well be said that such a sentence should have been imposed with respect to some of the other counts.

[18]  In all the circumstances no case has been made out for interfering either with the conviction or the sentence.

[19]  The appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.

[20]  JERRARD JA:  In this appeal I have read the reasons for judgment of Williams JA, and adopt His Honour’s description of the relevant facts.  I agree with him that the appeal against conviction and sentence on count 13 should be dismissed.  However, I would allow the appeal against conviction in respect of count 12 and would reduce the sentence for that count.

[21]  The offences of incest on which HAD was convicted, involving his daughter K, were all alleged to have occurred between 1 December 1997 and 30 August 1998.  Counts 12 and 13, charging rape, were alleged to have occurred between 1 May 1999 and 30 June 1999, when K returned to Queensland from the Northern Territory, for the purpose of terminating a pregnancy.  Her description of those two offences is summarised in the judgment of Williams JA, and she described herself feeling she had no choice but to agree with his demand that she have sexual intercourse with him; if not, he would not pay for the cost of the termination.  That evidence describes a sordid bargain forced upon her, which she did not want, but however corrupt and degrading HAD’s behaviour was, it was an agreement between K and him that he would pay for the termination if she had sexual intercourse with him.  The prosecution case appeared to have been put to the jury on the basis that HAD obtained K’s consent by means of the threat not to pay for the termination, apparently relying on the decision in this Court in R v PS Shaw [1995] 2 Qd R 97, but that case is distinguishable on the facts from those in count 12.

[22]  In that case the threat was that the perpetrator would not let the victim leave Innisfail and return to her home unless she participated in a videotaped occasion of sexual intercourse.  This Court held that if the jury were satisfied that her consent was in fact obtained by means of that threat – apparently understood by the complainant as a threat that she would be kept in Innisfail and available for future sexual abuse – that was sufficient.  That is a description of the position in count 13 in this appeal, but not count 12.  I would accordingly set aside the conviction on count 12, and substitute a conviction for incest. 

[23]  Regarding count 13, that was the complaint of sexual intercourse forced on K perhaps three days after the termination, and forced on her by two manoeuvres, at a time when she did not want sexual intercourse, had been advised to abstain from it, and was discharging blood.  One manoeuvre was HAD telling her that he was not going to let her “go home unless I pay my way kind of thing.  And that was through sex.”[1]  She also said that his other manoeuvre was to grab her and drag her into a room.  There he pulled her underwear down, and “[L]ike, just had sex with me, well raped me.”  Even without the threat of not letting her leave his house, that account of being dragged to a room for intercourse was a description of rape.  The only challenge to her evidence in cross-examination was the very general proposition put to her that at no stage had HAD ever had sexual intercourse with her.  Her reply to that was “No, it’s pretty much been rape every time.”[2]  Her evidence on count 13 was sufficient to sustain the conviction for rape on that count, since it was open to a jury properly instructed as to the law to be satisfied that offence was proven. 

[24]  HAD complained on the appeal that the point was not made in cross-examination, contrary to and despite his instructions to that effect, that he did not pay for his daughter’s return fare to the Northern Territory, and that her boyfriend did.  Establishing that fact would not have contradicted or weakened her evidence that her father had threatened not to pay that return fare unless she had intercourse with him.  It would have tended to suggest that he may have intended to keep her in Brisbane and available to him.  There was therefore, an understandable forensic advantage in not making the point HAD wanted made, and no error or miscarriage of justice.

[25]  Regarding the sentence, HAD’s conviction for an offence of sodomy of K in the late 1980’s, committed at Cairns, demonstrates that – as her evidence describes – he actually maintained an incestuous relationship with her for many years, although committing offences in Queensland against her for a portion only of that time. Most of the offences were committed in the Northern Territory.  Nevertheless, when sentencing him for the offences of incest, sodomy, and the offence of rape, committed against K in Queensland, the judge was sentencing for sexual offences committed against her at the beginning and end of a 10 to 12 year period of abuse.  It follows that while the sentence of 13 years on the charge of rape is a very heavy one, it is consistent, as a head sentence after a trial, with the sentence of 14 years upheld for the offence of incest in R v LJ [2004] QCA 114[3].[4]  Accordingly, the “head” sentence of 13 years for the offence of rape is not manifestly excessive and although I would substitute a conviction for incest on count 12, I would not interfere with the sentence on count 13.  I would order that the sentence on count 12 be varied by reducing it to 10 years.

[26]  FRYBERG J:  I agree with Williams JA that the appeal against conviction should be dismissed.

[27]  The applicant conceded that if the convictions stood, the sentences were not manifestly excessive.  I agree that the application for leave to appeal should be dismissed.