R v OM[2007] QCA 101

SUPREME COURT OF QUEENSLAND

1. KEANE JA:  On 13 April 2006, the applicant was convicted on her plea of guilty of two counts of procuring a person who was not an adult to engage in carnal knowledge, one count of indecent treatment of a child under 16 years of age, one count of attempted rape and three counts of rape.  She was sentenced to eight years imprisonment with a recommendation that she be considered for parole after serving three years of that sentence.

2. The applicant seeks leave to appeal against her sentence. The applicant, who did not have the benefit of legal representation on the appeal, agitated a number of matters of concern to her in relation to the severity of her sentence. These matters include complaints that she was not dealt with fairly and that the learned sentencing judge overlooked circumstances of mitigation. I will discuss these matters further after explaining the circumstances of the offences and the applicant's personal circumstances.

The circumstances of the offences

3. The offences to which the applicant pleaded guilty occurred between 1 March 2004 and 9 May 2005. The victim in each case was the applicant's daughter. She was 15 years old at the time of the first count of rape and 16 years old at the time of the second count of rape.

4. The applicant, who had effectively separated from her husband in 2003, developed a relationship with W, a man who lived in a different town in Queensland and who the applicant met on the internet.

5. The relationship which developed between the applicant and W was a sexual relationship of the most degrading kind. The applicant became subservient to W who asked her to persuade the complainant to have sex with W. The applicant tried to persuade the complainant to have sex with W. Initially, the complainant refused.

6. Subsequently at W's request, the applicant took five or six photographs of the complainant naked and sent these to W by e-mail.

7. The applicant continued to press the complainant to have sex with W. The applicant, who knew her daughter to be a virgin, took her to the doctor to obtain a prescription for the contraceptive pill. On 23 July 2004, the applicant took the complainant to a motel and booked two adjoining rooms. The applicant left the complainant alone with W after she had given the complainant alcohol. W then attempted to rape the complainant, but she resisted successfully.

8. The applicant apologised to the complainant for the incident saying that it would never happen again. The complainant spent the night in the room next door.

9. On a later occasion prior to the complainant's 16^th birthday, the applicant drove her to the town where W lived.  They stayed the night at W's house.  The complainant went to bed, but was awakened at 4.00 am by the applicant who told her:  "He's asking for it."  The complainant refused and said she was sick.  The applicant told W, who abused and hit her.  The applicant then forced the complainant into W's bedroom despite the complainant's protests and pleas for protection.  W then raped the complainant.  Next morning, the applicant thanked the complainant and told her that it would never happen again.

10. According to the complainant's victim impact statement, the complainant fell pregnant as a result of the rape, but the pregnancy miscarried. The applicant disputes the truth of this allegation. It may be noted here that the learned sentencing judge did not refer to it in his sentencing remarks.

11. The applicant moved her children, including the complainant, into W's house. In April 2005, the applicant again solicited the complainant to have sex with W. The complainant refused and ran from the house. The applicant pursued and caught her, and dragged her back to her bedroom by her hair. W was waiting. The applicant forced the complainant onto the bed and threatened to hit her if she moved. The applicant left the room, and the complainant struggled unsuccessfully with W. The applicant then re-entered the room and said: "Hurry the fuck up. I want this over right now." W then raped the complainant although she continued to punch him. After the incident, the applicant said to W: "Never again".

12. Nevertheless, on the evening of 7 May 2005, the applicant took the complainant to a hotel and gave her alcohol. She repeatedly asked the complainant to have sex with W. The complainant refused and pleaded with the applicant not to make her have sex with W. W then arrived and took them back to his house where he forcibly raped the complainant.

13. Shortly afterwards, the applicant gave the complainant a note. The complainant said to the applicant: "Mum, you'd better stop this or there's going to be a big fight and I'll win." The applicant's note read:

"… I know you're going to hate me for this but I need you to do it again.  I won't take 'no' for an answer.  I want you and [W] to go to a motel and let him do whatever he wants to do so we can finish this, please.  And then after this, you and your brother can probably get a flat together and move out and be independent.  I will love you for this."

That afternoon, the complainant ran away from home.

The applicant's circumstances

14. The applicant was born on 18 September 1963. She seems to have had a normal childhood. She was married at 23 years of age. She has three children. She has no previous criminal history.

15. According to the applicant, she had been made to engage in acts of sexual perversion by W who threatened to publish photographs of the applicant engaging in these acts if she did not comply with his wishes in relation to the complainant.

16. A report from a psychologist, Mr Zemaitis, which was tendered at trial, suggests that the applicant suffers from "significant depression" and is a "very moody, overly sensitive person, dissatisfied with many aspects of her life. She is also low in self esteem and has considerable insecurity about herself and her future." Mr Zemaitis was of the opinion that the applicant would "benefit from future counselling, helping her to come to terms with her guilt and helping her to improve her symptoms of depression".

The sentence

17. The learned sentencing judge noted that the offences committed by the applicant upon the complainant, her daughter, involved a "prolonged and significant repetitive gross breach of trust". His Honour referred to the complainant's victim impact statement which details the devastating effect that her ordeal at the hands of her mother and W have had upon her young life, especially in terms of emotional turmoil and disruption of family ties.

18. The learned sentencing judge took into account in the applicant's favour her plea of guilty. His Honour also formed the view that the applicant has some insight into the gravity of her offending.

19. The learned sentencing judge would have imposed a sentence of 10 years imprisonment upon the applicant but for the extent of her co-operation with the authorities in relation to the prosecution of charges against W. Pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld), the learned sentencing judge discounted the applicant's sentence substantially.  But for that discount, the applicant would have been obliged to serve eight years in actual custody before being eligible for parole.  The sentence which was actually imposed on the applicant was precisely that which had been urged on her behalf by her Counsel at the sentencing hearing.

The application

20. The applicant contends that insufficient regard was paid by the learned sentencing judge to the nature of her relationship with W and the controlling role of W in the offences committed on the complainant. In relation to this contention, it may readily be accepted that the applicant was subservient to W in her ill-advised relationship with him. That cannot, however, diminish the gravity of the offending, which was persistent and occurred over a period of time. In particular, the applicant actually moved towns with the complainant to live with W in circumstances where he had already raped the complainant and the applicant had assured the complainant that this would not happen again. In these circumstances, the applicant's assertion that her ability to act independently of W's control had been diminished cannot be given significant weight.

21. The decision of this Court in R v EC & Anor; ex parte A-G^[1] establishes that a sentence of 10 years imprisonment was within the appropriate range having regard to the overall criminality of the applicant's conduct.  In that case, the female offender, who was the mother of the victim, pleaded guilty to four counts of rape and one count of indecent dealing.  She was sentenced to seven years imprisonment with a recommendation for parole after three years.  The Attorney-General appealed to this Court against the leniency of the sentence.  That appeal was dismissed, but the Court accepted that a sentence of 10 years imprisonment would have been within the appropriate range.  In R v B and P,^[2] the offenders, who were the father and mother of the victim, were convicted after a trial of procuring their 11 year old daughter for carnal knowledge by a 67 year old man.  The mother had no previous convictions.  She was sentenced to 12 years imprisonment, with a recommendation for parole after four years and six months added on appeal.  While there are differences between the facts of these cases and the present case, these decisions serve to indicate the gravity of the applicant's offending and the range of sentence for offending of this kind. 

22. The matters personal to the applicant, such as her low self-esteem and insecurity, cannot alter the need for condign punishment in cases of offending of this kind. It may be noted in this regard that, in R v EC & Anor; ex parte A-G, the female offender was 58 years of age and in poor health.  Like the applicant in this case, she had no previous criminal history.

23. The applicant also complains about the circumstance that she was not aware of the terms of the complainant's victim impact statement before the sentence hearing. No adjournment of the sentence hearing was sought to enable the applicant to give extended consideration to the terms of the victim impact statement, and the applicant was not able to explain what would have been achieved had an adjournment been sought and granted. The learned sentencing judge assumed that the applicant would have been familiar with the terms of the victim impact statement, no doubt because it had been provided to the applicant's legal representatives. In any event, the suggestion in the victim impact statement that the complainant fell pregnant as a result of rape by W was not put before his Honour by the Crown Prosecutor and was not referred to by his Honour. The complainant's assertion in this regard may be ignored without lessening the seriousness of the applicant's offending.

24. The applicant, in her written submissions, disputed the handwriting of the victim impact statement, but there is no evidence which would give rise to any doubt as to the genuineness of the victim impact statement, and, in any event, no objection was taken to its genuineness at the sentence hearing. As to the effect of the offences of which the applicant was convicted upon the complainant, there can be no serious suggestion that the effect of the complainant's ordeal, and the applicant's betrayal, was not devastating for the complainant.

25. The applicant disputes the extent of the discount allowed under s 13A of the Penalties and Sentences Act.  It is clear, however, that the applicant received a substantial discount, effectively involving a reduction of five years in the non-parole period which the applicant must serve.  Any greater discount might well have attracted legitimate criticism on the ground of excessive leniency, particularly when, if the applicant truly has the insight into her wrongdoing with which the learned sentencing judge was prepared to credit her, she would hardly have needed the incentive of the informer's discount under s 13A of the Penalties and Sentences Act to make her willing to give evidence against W.

26. Finally, the applicant argued that her sentence should be reduced in order to expedite the opportunity for her to "build up [her] relationship" with her children. The applicant wrote:

"And the sooner I do that the better for them and for our whole family.  I make plea to the Courts to consider that one mistake should not impact on my children suffering for the length of time I am charged with staying here, when the time could be appropriately spent building up our family support and seeking professional help to do this together."

This submission by the applicant is somewhat disturbing in the lack of insight it reveals.  The applicant did not make "one mistake".  Over a period of more than a year she repeatedly sacrificed her daughter to the most brutal degradation on the altar of the applicant's infatuation with W.  To the extent that the applicant was subservient to W, it must be recognised that the applicant chose to move towns to bring her family into close contact with W even though the abusive nature of the relationship and the dangers to the complainant were clear to her.

27. Mr Campbell of Counsel, who appeared for the respondent, drew the Court's attention to the circumstance that the learned sentencing judge had imposed one sentence for all the offences to which the applicant pleaded guilty. That course was erroneous.^[3]

28. As a result, this Court must re-sentence the applicant, even though it is readily apparent that the operative sentence imposed in relation to the three counts of rape should not be reduced. The appropriate course, in the circumstances, is to allow the appeal but only to the extent of imposing lesser concurrent sentences in respect of the counts other than the rape counts.

Conclusion and orders

29. The application for leave to appeal should be granted. The appeal should be allowed, and the sentence imposed below should be set aside.

30. The following sentence should be imposed:

1. in respect of each of the three counts of rape, eight years imprisonment;

2. in respect of the count of attempted rape, four years imprisonment;

3. in respect of each of the two counts of procuring, four years imprisonment; and

4. in respect of the count of indecent treatment, two years imprisonment.

These sentences are to be served concurrently.  The applicant will be eligible for parole after serving three years of the period of imprisonment resulting from those sentences.

31. MUIR J:  I agree with the reasons of Keane JA and with his proposed orders.

32. PHILIP MCMURDO J:  I agree with Keane JA.