SUPREME COURT OF QUEENSLAND

[1]  MUIR JA: I agree with the reasons of Fraser JA and with the orders he proposes.

[2]  FRASER JA:  On 29 September 2006 the applicant was convicted on his plea of guilty of one count of maintaining an unlawful relationship of a sexual nature with his adopted daughter, then a child under 16 years, and eight counts of incest of his adopted daughter.  The sentencing judge pronounced a sentence of 10 years imprisonment and stated that the offences constitute “serious violent offences” with the result that the applicant was not eligible to be released on parole until he had served 80 per cent of the term.  442 days was declared as time served in respect of the sentence.  The endorsement on the indictment records “10 years for each count concurrent”.

[3]  Six grounds are stated in the applicant’s application namely

1.That the sentence was manifestly excessive.

2.That her Honour acted on a wrong principle of law not applicable to the matter at hand.

3.That the plea was ambiguous.

4.That the facts were mistakenly placed before the Court.

5.That her Honour failed to take into account relevant consideration.

6.That her Honour had taken into account extraneous and irrelevant matter by taking into account a matter she ought to have ignored.

Circumstances of the applicant’s plea

[4]  There is no substance in grounds 3 and 4 of the application.  The applicant was represented by a solicitor at the sentence hearing.  He agreed that he had read each of the charges contained in the indictment, fully understood them, had the opportunity of discussing each of them with his counsel, sought and received advice from his counsel in respect of each of the charges, was prepared to plead to each of the charges without each separate charge being read to him, and pleaded guilty to each of them.  The schedule of facts with reference to which the sentence was imposed was tendered and marked as an exhibit with no objection by the applicant’s solicitor who accepted the facts and made submissions on the applicant’s behalf on that basis.  There was no ambiguity in the plea and no mistake has been demonstrated in the facts placed before the Court.

Circumstances of the offences

[5]  The complainant was the adopted daughter of the applicant and his wife.  The complainant was born on 24 December, 1982 and was aged between 8 and 15 years during the period the subject of the maintaining charge (1 January 1991 to 31 October 1998).  She was aged between 17 and 21 years during the period the subject of the eight charges of incest.  The complainant was born with disabilities, a cleft palate, eyesight problems, and special dietary needs.  The applicant and his wife adopted her before she was three years old. 

Count 1: maintaining an unlawful sexual relationship

[6]  From when the complainant was eight years of age, the applicant would come to her bedroom to say goodnight to her and then would kiss her, placing his tongue inside her mouth, every night while she was in primary school and high school.  From when she was 10 years of age the applicant started also touching her breasts, which he continued throughout the charge period. 

[7]  Also from when the complainant was 10 years of age, every Sunday whilst the applicant’s wife was out the applicant would get into bed with the complainant, kiss her and touch her breasts, put her hand on his penis and sometimes masturbate himself.  If the complainant refused, the applicant would emotionally blackmail her by being angry with her and not talking to her for the rest of the day.

[8]  When the complainant started horse riding in about grade seven or grade eight, every weekend the applicant forced her to put her hand down his underpants to retrieve the money he had put there to pay for the horse riding.  He repeatedly forced her to touch his penis, and he kissed her and touched her breasts.  He also masturbated himself in front of her.  This also continued during this charge period.

[9]  When the complainant was aged 14 years of age, he had sexual intercourse with her on three occasions (in addition to continuing the other sexual misconduct), until after three months she ran away from home for a period.  The last of those three occasions was on 19 August 1997.  The applicant used a condom on those three occasions.  The complainant complained of physical pain in those episodes.  Before the complainant turned 16, the applicant also performed cunnilingus on her on three occasions.

Counts 2-9: incest

[10]  Seven of the eight incest charges included vaginal penetration.  The applicant did not always use a condom.  He had had a vasectomy in 1988.  One of the incest charges involved an act of sodomy. 

[11]  The applicant persisted in his conduct until the complainant left the family home when she was 21 years of age.

Personal circumstances of the applicant

[12]  The applicant was born on 15 December, 1942 and was aged between 48 and 59 years at the time of the offences.  He was 63 years of age at the time of sentence. He has no prior criminal history.

[13]  After the applicant was arrested and before sentence he was diagnosed with Parkinson’s disease.  According to a medical report of 21 September 2006, medication had improved the applicant’s tremor in his right arm and involuntary movements significantly, although there is no cure for this slowly progressive disease which carries with it an increased mortality rate.

The applicant’s “medical condition”

[14]  The applicant argues that the sentencing Judge failed to take into account what he said were his difficulties in controlling his “urges”. 

[15] No evidence was placed before the sentencing judge, and none has been placed before this Court, which establishes that the applicant was suffering from any mental abnormality in that respect at the time of the offences. In the absence of such evidence there is no ground for treating the applicant’s moral culpability as having been reduced by any psychiatric abnormality.  There is, in my opinion, no basis for applying the principle that an offender’s mental abnormality falling short of insanity might be a significant mitigating factor in sentencing: compare R v Neumann; ex parte A-G (Qld) [2007] 1 Qd R 53; [2005] QCA 362.

Factors taken into account in sentencing

[16]  The sentencing judge took into account the young age of the complainant when the applicant’s offending conduct commenced, her disabilities, the lengthy period of the unlawful sexual relationship, the occurrence of penile penetration over a prolonged period of years, the gross breach of trust to the applicant by her adopted father, and the persistent emotional blackmail involved in the offending conduct.  All of those matters were properly regarded as serious aggravating factors.

[17]  The sentencing judge also expressly took into account, in the applicant’s favour, the absence of any physical violence involved in the offences, although physical pain was caused to the complainant during the occasions of penile penetration. 

[18]  The sentencing judge also took into account in the applicant’s favour the diagnosis of Parkinson’s disease.  Her Honour also, appropriately, particularly stressed the applicant’s remorse and co-operation with the administration of justice in making admissions when confronted and in entering an early plea of guilty.  Those mitigating circumstances were taken into account as reducing what the sentencing judge thought was otherwise an appropriate sentence of 14 years imprisonment to a sentence of 10 years imprisonment.

Error in the sentencing discretion

[19]  When discussing this Court’s decision in R v SAG [2004] QCA 286 (which concerned the offence of maintaining an unlawful sexual relationship) the trial judge referred to “matters which substantially increase the sentence” as including “if penile rape occurred during the course of that relationship, it did, both vaginal and anal.”

[20]  The fact that the applicant had unlawful carnal knowledge of the complainant during the period covered by count 1, as he did on three occasions when the complainant was 14 years old, was plainly a significant matter justifying a substantial increase in what otherwise might be the sentence for that offence.  The sentencing judge’s reference to vaginal and anal rape was an error, however: the applicant was not charged with rape and the act of sodomy occurred after the end of the period the subject of the maintaining charge.

[21]  This mistake highlights another problem, which is that the sentencing remarks do not distinguish between the maintaining count and the other counts which charged the different offence of incest.  One sentence of 10 years was imposed, and the sentencing remarks are ambiguous as to whether the judge imposed one sentence or nine sentences.  It was necessary for separate sentences to be imposed for each offence: R v Crofts [1999] 1 Qd R 386 at 387; [1998] QCA 60. 

[22]  Furthermore, the sentencing remarks do not explain why the judge considered it appropriate that the same sentence should be imposed for each incest offence and the maintaining offence, even though the maintaining offence occurred over a very much longer period (more than seven years) than any of the separate incest offences, commenced when the applicant was at a tender age, involved regular sexual misconduct, and included three occasions of unlawful carnal knowledge. 

[23]  The sentences must be set aside because of those errors.  It is necessary for this Court to exercise the sentencing discretion afresh.

Count 1: maintaining an unlawful sexual relationship

[24]  I earlier described the circumstances of these offences and the applicant’s personal circumstances.

[25]  The maximum penalty for the maintaining offence (taking into account the charged circumstance of aggravation that the complainant was the applicant’s daughter) varied over the period of offending from 14 years to life imprisonment.  Life imprisonment was the maximum that applied in the period after 1 July 1997 (when the increases to the penalties effected by Act No. 3 of 1997 commenced), during which the applicant continued his regular indecently dealings with his daughter and committed at least the third act of unlawful carnal knowledge: Criminal Code, s 229B(3), s 210(4), 215(2).  For the offending before 1 July 1997, the maximum for the offence with this circumstance of aggravation was 14 years: s 229B(1B), s 210(3) and (4).  (That assumes that the applicant did not commit the two earlier acts of carnal knowledge, for which no precise date was given, until after that period.)

[26]  In R v SAG [2004] QCA 286 at [18] Jerrard JA referred to a large number of decisions in this Court in which offenders who had maintained an unlawful sexual relationship with one child victim for a lengthy period, as here, were sentenced for periods between 10 and 15 years, which sentences were imposed or upheld on appeal.  The Court upheld a sentence of 12 years imprisonment for the applicant’s maintaining offence against his stepdaughter P, which lasted for five years and nine months from when she was 10.  Significantly, there was no penile intercourse and the maximum penalty for that whole period was 14 years imprisonment.  There were other forms of indecent dealing, including digital penetration.  The 12 year sentence for what was otherwise less serious offending than here reflected the absence of remorse and worse manipulative conduct, including that the offender also dealt with his other children and blackmailed P with that knowledge. 

[27]  In R v BAY [2005] QCA 427 this Court allowed an application for leave to appeal against a sentence of 12 years imprisonment for an offence of maintaining an unlawful sexual relationship with a child under the age of 16 years and substituted a sentence of 10 years imprisonment on that count.  A term of eight years imprisonment was imposed for 30 other offences, involving indecent treatment of a child under 16 years and incest.  Atkinson J referred at [47] – [51] to a series of decisions of this Court in comparable circumstances in which sentences of between 10 and 12 years imprisonment were imposed for the maintaining offence where the applicant had pleaded guilty.  In BAY, the offender molested his eldest daughter over a period of some 12 years from when she was seven years old.  That applicant’s offending was otherwise similar to that of the applicant here, but differences included that the offender there hit the complainant on an occasion and also forced her to perform oral sex on him.  In this case though there is also the complainant’s special vulnerability associated with her disabilities.

[28] In view of the applicant’s medical condition, his remorse, and his age, personal deterrence is not a significant factor here, but on the other hand there were very serious aggravating factors.  The applicant was guilty of one of the grossest breaches of trust imaginable in treating his young, disabled daughter as an object for the satisfaction of his sexual desires over a very long period of years, destroying his family in the process.  In addition to repeated sexual misconduct in various forms, the applicant repeatedly had unlawful carnal knowledge of his daughter when she was 14 years old, having conditioned her to his misconduct since she was only eight years of age.  The agreed schedule of facts describes the physical pain suffered by the complainant during acts of sexual intercourse, her fear of the applicant, and his persistent emotional blackmail of her.  Unsurprisingly the complainant’s victim impact statement describes the seriously adverse effects on her and the family of the applicant’s persistent offending.

[29]  I referred earlier to mitigating factors.  Particular importance must be attached to the applicant’s early plea, which saved the complainant the ordeal of a trial, by allowing a very significant reduction in the sentence that otherwise would have been imposed.

[30]  In my opinion, the sentence imposed by the sentencing judge of 10 years for this offence, with the necessary declaration that this is a “serious violent offence”, was appropriate and I would impose it in the exercise of the sentencing discretion afresh.

Counts 2-9: incest

[31]  The maximum penalty for incest is life imprisonment.

[32]  The sentences of 10 years on the incest charges though were manifestly excessive in my respectful opinion, even though these were serious offences.

[33]  The offences occurred whilst the applicant was aged from 17 – 21 years.  The seriousness of the offences is aggravated by the fact that they followed the earlier offending when the applicant was very young, and they involved the repeated serious sexual misconduct against the applicant’s disabled daughter that I have outlined.  On the other hand, there are the mitigating factors mentioned earlier, particularly the applicant’s early plea.  In these circumstances, concurrent sentences of 7 years for each of those offences is appropriate, in my view, and it is in line with Lee J's discussion in R v P [1998] 2 Qd R 191 at 199 – 200; [1997] QCA 453, of the appropriate range of sentences for comparable offences.

Orders

[34]  I would therefore grant the application, allow the appeal, and set aside the sentence imposed by the sentencing judge.  In lieu thereof I would impose the following sentences.  In respect of the applicant’s conviction on count 1 of the indictment, I would impose a period of imprisonment of 10 years and declare that it is a “serious violent offence”.  In respect of the applicant’s conviction on counts 2-9 of the indictment I would impose a period of imprisonment of 7 years for each count.  All sentences are to be served concurrently with each other.  I would declare that the 442 days spent in presentence custody between 14 July 2005 and 29 September 2006 be taken to be imprisonment already served under the sentences.

[35]  MACKENZIE AJA: I agree that the orders proposed by Fraser JA should be made for the reasons given by him.