SUPREME COURT OF QUEENSLAND

[1]  de JERSEY CJ: The applicant pleaded guilty to maintaining a sexual relationship with a child under 16 years of age, over the period 15 August 2002 to 15 August 2006.  He was sentenced, on 1 July 2008, to eight years imprisonment.  He seeks leave to appeal on the ground that the sentence was manifestly excessive.

[2] The applicant’s wife pleaded guilty to a similar charge, but covering a substantially lesser period, 30 April 2006 to 15 August 2006.  The complainant was her daughter, and the applicant’s stepdaughter.  The applicant’s wife was sentenced on the basis that she allowed the applicant to conduct a sexual relationship with her daughter from April to August 2006.  The applicant’s wife was sentenced to six months imprisonment followed by three years probation.  Allowing for the feature that the applicant was the active offender, and the substantially longer period over which his offence continued, the matter of parity in the treatment of co-offenders did not in any real sense arise.

[3] It is regrettably necessary to cover the circumstances of the applicant’s offending in some detail.

[4] The complainant was born in August 1990.  The applicant married the complainant’s mother at a time when the complainant was four years old.  He committed this offence over a four year period, over which she was aged from 12 years to 16 years.  Broadly speaking, over that period the applicant persistently sexually abused his stepdaughter, on many occasion masturbating in her presence, touching her breasts, licking her vagina, as well as engaging in the digital and penile penetration of her vagina.  The licking of the vagina and digital penetration characterized the whole of the relationship.  The penile penetration commenced when the complainant was 12 or 13 years old, occurring three to four times over the first three and a half years of the relationship, but on numerous occasions over the last three to four months of the relationship – after, extraordinarily enough, the applicant had reached an “agreement” with his stepdaughter that she should attempt to conceive a child by him.

[5] Over this four year period, the applicant was aged between 29 years and 33 years.  He had a prior criminal history, but not for offences of any great significance in the current context.  He had not previously been imprisoned.

[6] The offending conduct may conveniently be examined first with reference to the period up to May 2006, and then for the period thereafter until August 2006.

[7] In the first period, from 15 August 2002 to May 2006, the applicant regularly performed oral sex on the complainant, touched her vagina and penetrated her digitally.  Generally speaking, that happened at least twice a week.  The first penile penetration occurred when the complainant was 12 or 13 years old during a family camping trip.  The applicant approached the complainant on the basis:  “Let me have sex with you once and…there’ll be no more.”  He subsequently up until May 2006 had sexual intercourse with her two or three times.  The applicant would bribe the complainant into allowing him to perform sexual acts upon her, by buying her things, or promising not to adopt an unfriendly attitude towards her, and he told the complainant that he would “kill himself” if anyone found out about the activity.

[8] The applicant’s conduct after May 2006 was preceded by a bizarre and grossly reprehensible understanding reached in early May, involving the applicant, the complainant and her mother.  The applicant and his wife had two natural children, sons afflicted with Hirschsprung’s disease, a congenital disorder of the colon causing chronic constipation, and requiring a sufferer to wear a colonoscopy bag.  The applicant and his wife reached the view that if the complainant bore a child by the applicant, that child would not be afflicted by the disease.  In early May 2006, the complainant agreed with the applicant and her mother that she would seek to have a baby by union with the applicant. 

[9] Thereafter, on about 10 to 15 occasions over a fortnight, the complainant attempted to inseminate herself using a syringe containing the applicant’s ejaculate.  The applicant would masturbate in her presence and ejaculate into a large syringe and then, despite the complainant’s request that he leave, remain in the room and watch the complainant insert the syringe into her vagina.  On one occasion, he digitally penetrated the complainant as he masturbated.  The complainant failed to conceive.

[10] Then the applicant resorted to penile penetration of the complainant, with increasing frequency over time.  In the weeks leading up to the complainant’s 16th birthday, “they would have sexual intercourse twice a day and sometimes three times a day when it was estimated that she was ovulating or right before she started her period”. 

[11] The following detail is set out to illustrate the degradation to which the applicant subjected the 15 year old complainant.  For example, notwithstanding the complainant was menstruating, and her pointing out to him that sexual intercourse in that period would not result in pregnancy, he insisted on having sexual intercourse with her, and she “gave up”, notwithstanding her being supported in her objection by her mother.  The applicant went so far as keeping the complainant home from school, so that he might have intercourse with her.  On one occasion he called her into his bedroom where he lay on the bed having just had intercourse with the complainant’s mother, and “he said that it was the complainant’s turn”.  Notwithstanding the mother’s angry departure, the applicant proceeded to have sexual intercourse with the complainant. 

[12] The applicant had a distorted perception of the wrongfulness of his conduct.  When arrested by the police, he asked:  “Did you not see the fucking contract?”, and refused to participate in the taking of a record of interview.  He was referring to a number of copies of an “agreement” to have a child, written out by the complainant, to be used as evidence “that it was fully her decision and that she had not been forced or bribed”.  At the time that “agreement” was entered into, the complainant was 15 years old, and the applicant was 33.  As an inducement, the applicant had promised to give the complainant all of the “baby bonuses”.  His gross deception extended to requiring the complainant to write a diary “saying that she was stealing condoms and sneaking off to see a boy named Luke…so that she could say when she did get pregnant that it was the fictional person Luke” who was the father.

[13] In her victim impact statement, the complainant tragically speaks of a lost childhood, a childhood without privacy:  “…when he started to do things to her, the thought was that he was always there, always watching and was continuously in her head…he made her feel paranoid and on edge all of the time…she would listen to the footsteps in the hall and hope that he didn’t feel like coming into her room while she was doing her homework…”; she speaks of his having robbed her of her virginity on a broken promise, of feeling lost and confused, and of her inability to relate to other people.  After reporting the offence and moving out of the house, she had to repeat grade 10 at school, but in saying that, I acknowledge that must frankly have been the least of her troubles.  It is obvious the long-term effect on her psychological and emotional development will have been disastrous.

[14] The learned sentencing Judge observed that the applicant was the dominating member of the household, manipulating both his wife and the complainant.  He cajoled the complainant into having sex.  He accepted that the applicant had shown remorse and that he had cooperated in the administration of justice.  (The applicant entered an early plea of guilty, after the presentation of the indictment, and there was no requirement that the complainant be cross-examined.)

[15] In setting the head sentence of eight years, His Honour said that he had taken into account the mitigating features of the early plea, the cooperation and that the complainant had not been required for cross-examination.  He also took into account a psychological assessment of the applicant.

[16]  By the time of that psychological assessment, provided by the report dated 31 August 2007, the applicant was accepting responsibility “for only those charges which relate to him and (the complainant) attempting to conceive a baby because he and his wife could only produce children who had a significant genetic disorder.  He reports that he was depressed at the thought of not having his ‘ideal’ four children and when (the complainant) ‘came up with a solution’ he reluctantly accepted her offer”.  The report goes on:

“The applicant’s profile provides no evidence of any anti-social or psychopathic tendencies, however it does provide evidence of an individual who did not set his boundaries or have control over his desire to have four children.  He behaved in a manner that was socially and legally unacceptable for his own gain, however he was motivated by a desire to fulfil his dreams and his behaviour was compounded by the depression he was experiencing.”

[17] As will have been noted, he eventually later pleaded guilty to the maintaining offence covering the period right back to August 2002:  he entered his plea on 25 March 2008 and was sentenced on 1 July 2008.

[18] The learned Judge noted the hardship the sentence imposed upon the applicant would cause the members of his family.  His wife was sentenced on the basis that the applicant’s parents would, albeit with some difficulty, be looking after the applicant’s sons during the period of the applicant’s wife’s incarceration.

[19] Counsel for the applicant submitted that in determining upon a sentence of eight years imprisonment, after allowing for the mitigating circumstances, the learned Judge must have worked from a starting point of 11 to 12 years, which he submitted, by comparison with other cases, was too high.  He submitted that a sentence of six to seven years imprisonment, with eligibility for parole after one-third, would have been an appropriate sentence.

[20] It will be necessary to compare the circumstances of this case with those of some others, but before I embark on that exercise, it must be said that this was a very bad example of the maintaining offence. 

[21] These features amply warrant that characterization:  the relationship extended over a substantial period, four years; it covered a particularly impressionable period of the child’s teenage development, from when she was aged 12 years to 16 years; the complainant was the applicant’s stepchild, with whom he had lived from when she was four years of age; the offending involved multitudinous instances of digital and penile penetration in addition to other graphically inappropriate sexual activity; the applicant used emotional blackmail and manipulation to secure the complainant’s compliance with his disgraceful demands; the applicant set out to render the 15 year old complainant pregnant, regardless of the obvious risks to her physical and emotional condition, not to mention her moral development; the applicant sought, in some apparently serious but grossly distorted way, to justify his depredations by reference to the so-called “agreement”; the applicant effectively treated the complainant as his “sexual plaything”, well illustrated by his keeping her home from school for the purpose of intercourse, openly having intercourse with her after intercourse with his wife, and insisting on intercourse when she was menstruating; and the seriously adverse resultant effects of all of this on the complainant.

[22] I turn now to a comparison between the circumstances of this case and some of the others to which we were referred by counsel.

[23] Mr Kissick, who appeared for the applicant, relied particularly on the cases of R v HAN [2008] QCA 106, R v BAT [2005] QCA 82 and R v SAU [2006] QCA 192.

[24] The particular points which distinguish this case from HAN (where the ultimate sentence was six years imprisonment with parole after two years) are that in HAN there was no sexual intercourse and the complainant retained her virginity; and that the complainant in HAN was not subjected to the particularly sinister and corrupt so-called “agreement” which in this case preceded the last three or four months of the relationship, in which such frenetic sexual activity occurred.  The latter point of distinction may also be made in relation to BAT, where conviction, following a trial, led to six years imprisonment.  SAU was sentenced to eight years imprisonment, with parole recommended after three years, but the character of this applicant’s offending was more serious, and it persisted over a period (four years) twice as long as in SAU.  Also, there is in this case the highly significant context of the “agreement” secured by the applicant, and his specific intention of making his vulnerable 15 year old stepdaughter pregnant – which he went about securing with dreadful devotion.

[25] Mr Rutledge, who appeared for the respondent, referred to a number of additional cases.  It suffices to mention only two of them, R v KJB [2002] QCA 448 and R v H [2003] QCA 392.  Each of those offenders was imprisoned for eight years with parole recommended after three years.  But in each of those cases, the extent of unlawful sexual activity was much less than in this case, and this case is additionally distinguished by the aggravating feature of the specific intention of rendering the complainant pregnant, and the particular deceit attending that.

[26] Reverting to the earlier summation of the aggregation of features which warrants characterizing the instant case as a very bad instance of the offence, it is difficult to conceive how, on the face of things, this sentence of eight years imprisonment could reasonably be regarded as manifestly excessive.  Furthermore, comparison with other cases, allowing for the fact that precise comparison is not possible in this area, does not support a contention that this sentence was manifestly excessive.

[27] I would refuse the application.

[28] MUIR JA: I agree with the reasons of de Jersey CJ and with the order he proposes.

[29] ATKINSON J: The sentence imposed was consistent with the careful and thorough analysis of the authorities by Jerrard JA in R v SAG [2004] QCA 286.  I agree with the order proposed by the Chief Justice and with his Honour’s reasons for doing so.