R v HAP[2008] QCA 137

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:  The applicant pleaded guilty to an ex-officio indictment on 12 December 2007, charging two counts of maintaining a sexual relationship with a child under the age of 16 with circumstances of aggravation and three counts of rape.  He was sentenced in the Townsville District Court on 7 February 2008 for a single term of 13 years imprisonment with respect to all 5 offences. 

He applies for leave to appeal against his sentence contending that it was manifestly excessive and that the judge erred by imposing a single sentence of imprisonment for 5 different offences.

The complainant on all counts was the applicant's stepdaughter.  He had been her stepfather since she was six months old.  According to the prosecutor, the two counts of maintaining, counts 1 and 2, reflected amendments made to section 229B Criminal Code 1899 (Qld).  Counts 1 and 2 reflected, in fact, one continuing relationship.

The relationship began when the complainant was five years old and continued until she was 16 years old.  It involved regular and frequent penile vaginal rape.  The complainant recalled ten specific instances and that the sexual offending initially occurred monthly, increasing in later years.  Three offences were committed when she was 16.  These were the three counts of rape charged on the indictment. 

The first occasion the complainant recalled was when she was five years old.  Her mother was out to bingo and her siblings were asleep.  The applicant came into her room and inserted his penis into her vagina.  He had sex with her, notwithstanding that she was crying.  He told her to shut up.  The next occasion she recalls was also when she was five years old.  Her mother was out and her siblings were asleep.  Again he came into her room, inserted his penis into her vagina and had sex. 

When she was 10 years old there were four episodes of sexual assault that she recalled.  The first involved the applicant coming into her bedroom, removing her clothes, lying on top of her, trying to kiss her but she turned away, then rubbing his hand on her vagina with his fingers and finally inserting his penis into her vagina and having sex.  This conduct was repeated on a further three occasions when she was 10.

She recalled another occasion when she was 15 years old.  He was driving her home when he pulled off the road into a cane paddock.  He pulled his penis from the side of his shorts and tried to force the complainant to perform oral sex on him.  She resisted.  He tried to force her again but ultimately gave up.  She had tears in her eyes.  He then began to touch her breasts.  He tried to kiss her, she turned her head away.  He pushed her onto her back and took her shorts off.  He put his hand onto her vagina and rubbed it with his fingers.  He used his other hand to apply a condom.  He then inserted his penis into her vagina and had sex.

The remaining offences were committed outside the maintaining period and constituted the charged offences of rape on the indictment.  The first count of rape occurred on an occasion when he would not let her go out with her mother and siblings.  She was 16 years old.  He came into her bedroom, took off his shorts and her shorts, inserted his penis into her vagina and had sex (count 3).

On the next occasion he collected her from school for a doctor's appointment.  He drove her home first and made her go into the master bedroom where he took his and the complainant's shorts off and had sexual intercourse with her.  He then drove her to her medical appointment (count 4).

The final particularised occasion was when he came into her bedroom and lay on top of her.  He attempted to remove her shorts but she struggled.  She began to cry.  She said, "I don't want to do his."  He overpowered her and pulled her shorts to one side.  He put his hand on her knees trying to spread them apart but she resisted.  He again overpowered her and manoeuvred his body in between her knees.  He braced himself against the bed and used his free hand to spread open her vagina and insert his penis.  She resisted him by attempting to kick him and push his shoulders away but he was too strong.  He did not wear a condom.  The episode took about 15 minutes.  She showered and dressed and sat in the lounge room.  He asked her what was wrong.  She said, "You should know." 

He said he was sorry and told her to go and do a chore.  When she was doing that chore, hanging out the clothes on the clothesline, she sent a text message to her boyfriend stating that her dad had just had sex with her.  She texted, "I'm scared.  I don't know what to do."  Her boyfriend and another friend, to whom she had sent a similar message, told her to leave home.  She took their advice.  Ultimately a complaint was made to police.

The applicant was interviewed by police and admitted to having sex with the complainant four or five times maintaining it was consensual.

A victim impact statement was tendered which suggested that, although this offending has had the expected shocking impact on the young complainant's life and has split the family, at least it appears that her making of the complaint has removed the applicant from her life and to some extent has actually improved her life.

The applicant pleaded guilty to an ex-officio indictment.  He had some unrelated, relatively minor drug convictions but no history of like offences.

The prosecutor at sentence emphasised that the applicant's conduct amounted to an egregious breach of trust.  It warranted a heavy penalty notwithstanding the early plea of guilty.  The offending extended over more than a decade.  A sentence of between 12 to 14 years imprisonment was appropriate.  In making the submission the Prosecutor relied on R v Robinson [2007] QCA 99 and R v C; ex parte A-G (Qld) [2003] QCA 134.

Defence counsel tendered a psychological report from Mr Robert Zemaitis.  The report contained the following information.  The applicant came from a troubled family.  His father was a violent alcoholic who frequently abused him and his mother.  His mother eventually had a nervous breakdown.  He and his siblings became wards of the State and he spent lengthy periods in a children's home in Rockhampton.  The applicant himself developed drinking and drug-related problems.  He has had steady employment and he earned good money but has wasted a great deal of it on drugs and alcohol abuse.  He has low self-esteem and is quite depressed because of these charges and his estrangement from his children and partner.

Mr Zemaitis considers that the applicant suffers chronic post-traumatic stress disorder from his childhood years.  He has been additionally significantly impaired by his long-term alcohol abuse.  He is a reasonably intelligent person who would benefit from counselling to help him come to terms with his behaviour and to understand the impact of it on the victim.

Defence counsel also referred to a number of cases which he submitted were comparable.  He argued that because of the applicant's background and early plea of guilty to an ex-officio indictment and his lack of prior relevant convictions, leniency was warranted.

The learned sentencing judge referred to the mitigating circumstances relied on by defence counsel and that the victim impact statement had promising signs for the complainant's recovery.  The serious level of offending, the lengthy time over which it occurred and its regularity were, his Honour considered, aggravating features.  As noted, the learned sentencing judge imposed a sentence of 13 years imprisonment.

It is clear that the judge erred in imposing a single sentence of imprisonment for a number of different offences.  See R v Crofts [1999] 1 Qd R 386 recently applied by this Court in R v Dolan [2008] QCA 41.  Those cases are strong authority for requiring this Court to allow the appeal and to re-exercise the sentencing discretion, imposing discrete sentences in respect of each individual offence.

Counsel for the respondent concedes that this is so, but argues that an effective sentence of 13 years imprisonment should be re-imposed in respect of the maintaining offences and a sentence of seven years imprisonment should be imposed in respect of each of the rape offences.

Counsel for the applicant contends that the high end of the range applicable in this case is reflected in R v PAD [2006] QCA 398.  PAD was convicted after a trial of maintaining a sexual relationship with his stepdaughter.  The relationship began when she was 12 years old and continued until she turned 16.  The abuse included digital penetration and oral sex.  After she turned 16 he vaginally raped her with his penis and she became pregnant.  PAD was sentenced to an effective term of 15 years imprisonment.  On appeal this was found to be manifestly excessive.  He was instead sentenced to an effective term of 12 years imprisonment. 

It is immediately apparent that whilst PAD did not have the mitigating factor of remorse and an early plea of guilty, the present applicant's behaviour extended over many more years and involved more episodes of rape and regular penile vaginal penetration commencing when the complainant was but five years old.

Counsel for the respondent relies on the cases of R v Robinson [2007] QCA 99 and R v C; ex parte A-G (Qld) [2003] QCA 134 to support a sentence of 13 years imprisonment.  She contends the appropriate range in this case, for the present offending, is 12 to 16 years imprisonment.  Whilst not diminishing the very serious aspects of the applicant's offending, it is very plain that this is not a case that is closely comparable to Robinson.

In R v C; ex parte A-G (Qld), C pleaded guilty to maintaining a sexual relationship with his natural daughter over a two and a half year period while she was aged 13 to 16 and to three counts of rape, two of which occurred during the maintaining period.  The Attorney-General appealed against the nine year sentence imposed.  The Court allowed the appeal and substituted a period of 10 years imprisonment.

The present offending began when the complainant was but five years old and continued for 11 years.  It involved regular penile vaginal rape.  It constituted a shocking breach of trust and took away the complainant's childhood and adolescence.  What can be said in the applicant's favour, and which is of real significance in the sentencing process, is that the applicant pleaded guilty at an early stage to an ex-officio indictment.  He has demonstrated remorse by doing this.  He has also shown some insight into his behaviour, and into his own problems that led to it, so that it seems from the psychological report there are at least some prospects of rehabilitation.

The present offending is of greater magnitude than in C, but C and PAD, considered together with the two other cases to which we have been referred, R v SAG [2004] (2004) 147 A Crim R 301; QCA 286 and R v BAY [2005] QCA 427, support a sentence in the present case on each of the charges of maintaining of 11 years imprisonment and sentences in respect of each of the counts of rape of seven years imprisonment.

I would grant the application for leave to appeal and allow the appeal.

I would set aside the sentences imposed at first instance.

In respect of each of counts 1 and 2 I would order that the applicant be sentenced to 11 years imprisonment.

These offences are declared to be serious violent offences.

In respect of each of counts 3, 4 and 5 I would order that the applicant be sentenced to imprisonment for seven years.

MUIR JA:  I agree.

CULLINANE J:  I also agree.

THE PRESIDENT:  Those are the orders of the Court.