R v HAA[2006] QCA 55

SUPREME COURT OF QUEENSLAND

WILLIAMS JA:  I will ask Justice McMurdo to give his reasons first.

McMURDO J:  After a five day trial, the applicant was convicted by the jury of maintaining an unlawful sexual relationship and one count of rape and 15 counts of unlawful carnal knowledge in the course of that relationship.  He was sentenced to 12 years imprisonment on the first charge and on the others a conviction was recorded but no further penalty was imposed.  He applies for leave to appeal against that sentence on the ground that it is manifestly excessive.  He has abandoned his appeal against conviction.

The complainant was a granddaughter of the applicant's de facto partner.  She was born in 1991 and the unlawful sexual relationship was found to have occurred between 1 January 2000 and 7 January 2004. Her evidence was that she was probably nine years of age when the relationship commenced. 

The applicant had some work making deliveries for a charity.  The complainant's parents had separated and she lived with her father.  Because of her father's work commitments, he entrusted the after school care of the complainant to the applicant.  The applicant would pick her up from school and often she would accompany him on his delivery rounds.  She referred to him as uncle.  Sexual intercourse between them occurred at various places including the applicant's house, a field, a house formerly occupied by the complainant's mother, and a number of other houses which they came to visit in this way: the applicant would go to real estate agents pretending that he was looking for a house to rent; he would obtain the keys to a house supposedly so that he could inspect it; he would then take the complainant there and have sex with her. 

At the trial, there were tendered by consent schedules of these visits to rental properties compiled from evidence from real estate agents.  From this material, the dates of some specific offences were able to be established.  The various counts of unlawful carnal knowledge covered a period between December 2001 and January 2004. There was then what the sentencing Judge described as regular sexual intercourse over at least that period.  There was also one offence of rape which was in June 2003 when the applicant placed his penis in the complainant's mouth.  That was a circumstance of aggravation in relation to the offence of maintaining the relationship.  The sentencing Judge described that offence of rape in these terms:

"Although the offence of oral rape was clearly an offence of violence, the child gave no evidence of force beyond that necessary to achieve the penetration of her mouth.  I had the impression it was simply something that the prisoner did.  It seems the penetration did not last for any great length of time."

Apart from the specifically sexual behaviour, the Judge noted that there was no evidence of other serious, physical violence towards the child.  His Honour found that the applicant was able to maintain this relationship for so long by his threats that if the complainant told anyone, he would give up work and leave her grandmother.  His Honour saw this as a significant threat because, as the child was aware, her grandmother was very ill and needed the applicant's support.

That finding is now challenged although it seems that the applicant did not resist such a finding which the sentencing Judge was invited to make by the prosecutor.  There was evidence to support the finding, and it should not be disturbed. 

Ultimately, in January 2004, the complainant told her brother's girlfriend of what was occurring and she then made a statement to police.  The sentencing Judge noted that he showed no remorse. 

The applicant was born in 1949 so that he was aged 50 to 55 during the relevant time.  He had previous convictions and in particular for sexual offences.  One conviction was in 1973 which because of its age was not regarded by the sentencing Judge as so significant.  The other conviction was in April 1998 when he was sentenced in the District Court for indecent dealing with another child under the age of 16 years.  For that, he was sentenced to nine months wholly suspended for a period of two years.

Apart from his criminal history, he was found by the sentencing Judge to have made some contribution to the community and to have been in regular employment throughout his adult life. 

The sentencing Judge described the effect of this conduct as corrupting the child and affecting her prospect of future relationships. 

The applicant's argument focuses upon R v SAG [2004] QCA 286 where Jerrard JA with whom the other members of the Court agreed, reviewed a considerable number of decisions of this Court in cases involving the charge of maintaining a sexual relationship.  He cited at paragraph 18 many of those cases which involved an offender convicted in respect of one child victim only and on whom a lengthy sentence was upheld or imposed.  Each of them was 10 years or more.  From this analysis, Jerrard JA then said at paragraph [19] that certain matters have been shown to be significant of substantially increasing the sentence for this offence.

At paragraph [20] he then described the matters which mitigate the penalty as including conduct showing remorse, co-operation with investigating bodies, admissions of offending, co-operation with the administration of justice, and sparing the victims from any contested hearing.

In this case, none of those particular mitigating factors is present, but the applicant's argument is that too few of the aggravating circumstances which are identified in SAG are present to warrant this term of 12 years.  It seems that the sentencing Judge was not referred to SAG. 

In particular, the applicant argues that he was not in a parental relationship to the complainant; there was never any physical violence or threats of violence, apart that is from the sexual conduct itself; penile rape did not occur; the offence of rape was relatively speaking not a serious one; the complainant did not become pregnant and her evidence suggested that the applicant had consistently practised the withdrawal method of contraception; there was only one complainant; and the applicant's conduct, although reprehensible, was said not to be characterised by the depravity seen in some other cases.

There were those features of the applicant's case but there were also other significant aggravating features as particularly identified in SAG.  This child was a comparatively young child when the relationship began and it continued over a lengthy period.  There were very many occasions of unlawful carnal knowledge and again over a prolonged period.  Although the relationship was not parental, it was a protective relationship.  The complainant's father had entrusted the care of his daughter to the applicant.  The applicant's threats to abandon the grandmother constituted the emotional blackmail or other manipulation referred to in SAG.

A further submission is that the sentence should have been moderated to reflect the impact of the automatic serious violent offender declaration.  That submission is inconsistent with the judgment of this Court in R v Cowie [2005] QCA 223.  It was there held that whilst the mandatory declaration is relevant in the consideration of what sentence is just in all the circumstances according to section 9(1) of the Penalties and Sentences Act citing R v. Shillingsworth [2002] 1 QdR 527 and R v. Herford [2001] QCA 177 it was wrong to say that the sentencing court should invariably or at least as a general rule be constrained to sentence at the lower end of an appropriate range where the declaration is mandatory.

Since 1st May 2003, the maximum penalty for an offence of maintaining an unlawful sexual relationship has been life imprisonment.  This relationship began before then.  Prior to that date, the maximum penalty was 14 years except if there was some specific offence of a particular kind committed during the relationship.  In this case, there were offences of unlawful carnal knowledge committed before then with the result that by the then terms of Section 229B(3) of the Criminal Code, the maximum penalty was again life imprisonment.

Because of the analysis undertaken in SAG this case does not call for some review of the appropriate range in the relevant circumstances which can only repeat what was there said.  In this matter, there were many circumstances which were aggravating and which made it a more serious example of this offence, and given the absence of any strong mitigating circumstances and the applicant's criminal history, it cannot be said that this sentence was manifestly excessive.

The application for leave to appeal the sentence should be dismissed.

WILLIAMS JA:  I agree.

JERRARD JA:  I agree.

WILLIAMS JA:  The order of the Court is the application is dismissed.