SUPREME COURT OF QUEENSLAND

[1]  CHIEF JUSTICE: The applicant seeks leave to appeal against a sentence of six years imprisonment imposed following his conviction by a jury on a charge of maintaining an unlawful sexual relationship with a child aged under 16 years.  At the time of the offending, the applicant was aged approximately 50 years, and the complainant 13 years.  The maintaining took place over at least two months, and involved his having sexual intercourse with the complainant three or four times per week.

[2] The applicant was also charged with 12 separate counts of rape.  In the course of the trial, the learned trial Judge directed the jury to return verdicts of not guilty on eight of those rape counts, and to consider, in respect of those alleged incidents and three of the remaining rape counts, alternative charges of unlawful carnal knowledge, and in respect of one of the remaining rape counts, an alternate charge of indecent dealing with a child aged under 16 years. 

[3] In the result, the jury acquitted of rape on three of what I have termed the remaining rape counts, but could not reach agreement on the remaining and alternate counts.  After some discussion, the applicant undertook to abandon “any right of appeal on the basis of…inconsistent verdicts”, if the prosecution were to enter a nolle prosequi in respect of the counts on which the jury had not been able to agree.  That was done, with the prosecutor acknowledging the relevance to the sentencing process of the consequent savings (avoiding a retrial).

[4] Mr Vasta QC appeared for the applicant, on a pro bono basis.  While in his written outline he queries the jury’s inability to agree on the rape counts, while convicting of maintaining, there is no appeal against conviction, and there was this following body of evidence (among other evidence) upon which the jury may be taken to have relied, and relied reasonably, in convicting of maintaining notwithstanding its approach to the other counts:

“Yeah, okay.  Now we’re talk – that’s May.  Now we’re going to May, June, July, August, September, October, we’ve still got five months before you know, police um, came into your life, okay?  Um, what happened in those five months? --Those five months, same thing happened.  We were [indistinct] in um, that motel, that first motel we went into, that’s white one----

Yes? --The one I was talking about in the beginning.

Yep, that’s fine that tape’s fine? --Okay.  Just heard a noise, was wondering what – and yeah.

And the same.  And how – and in those five months there, how many times a week would you be in that motel room? --Lots of times.  Sometimes I’d skip days and sometimes in the afternoon.

Okay.  And would it be weekdays and weekends? --Yep.

Yep? --Some – some weekends we went shopping so we weren’t there at all.

Okay.  But some weekends you would be there?  --Yeh.

And – and how often would DW come to that motel? --Oh, that time I think he was real busy so he only came sometimes.

In a week then, how often would he come within a week? --Um, three or four times.

Three or four times in a week.  An what – when he came to that motel room, what would he do?  --Same thing.

What’s the same thing? --Get on top of me, get undressed, I had to, and get on top of me.  He went [indistinct].

So what would he do with his penis? --[Indistinct] inside my figure.

Yeah? --And he spermed.

Mmm-hmm?  --About – he was going up and down for four or five minutes and he spermed and he got up, wiped his penis and got dressed and I had to get – I got up and went to the toilet.

So, this was happening about every week.  Would it happen every week?  Yes, it would have – can you tell me if it happened every week, yes or no, or -----? --Every week.

Every week.  And you’re saying about three or four times a week this would happen with DW? --Yes.

Okay.  And it would happen at that motel room? --Mmm.”

[5] The primary Judge sentenced on the following basis, as drawn from his sentencing remarks:

“I sentence you on the basis that that activity occurred regularly, perhaps up to but no more than three to four times a week, over a period of two months and that you also involved yourself in that activity with the complainant on one or two occasions at the Boathouse Restaurant which was a place where you took the child.  The place over the two months where the activity occurred regularly was the Premium Resort Motel.

… you appreciated that the child was under 16 years of age…you appreciated that she was being prostituted by her mother to whom you initially paid money for the services and the abuse which you visited upon the child.  You took advantage of the child in that sense by knowing that she was being prostituted by her mother and you did so for your own sexual gratification.

…

You did not initiate the corruption of the child but you took advantage of that position the child had been placed in, who you knew was under the control of the mother, and your actions perpetuated the corruption.

…

Your relationship with the child was such that you did exercise control over her.  That is evidenced, I find, by the telephone call of December 2004 where you were able to speak to her and ask her to confirm that, in fact, no sexual activity took place between the two of you.”

[6] As aggravating features, the Judge identified the disparity in age, the commercial dimension and that the applicant’s behaviour was premeditated not opportunistic.

[7] On the other hand, the Judge took account of the applicant’s good work history, the absence of relevant prior criminal history, the absence of violence or threats, that there was no breach of trust in the regrettably usual sense, and that although the sexual activity was “of the higher end of intensity of sexual activity, that is, unlawful carnal knowledge”, it persisted over no more than approximately two months.

[8] There was evidence before the primary Judge of the psychological effect upon the complainant of this offending.

[9] The complainant’s parents were charged with a variety of offences including maintaining, knowingly participating in the provision of prostitution, and procuring the complainant to engage in prostitution.  They pleaded guilty.  For the maintaining, the mother was, on an Attorney-General’s appeal, sentenced to nine years imprisonment, to be served concurrently with 13 years imprisonment for the prostitution offences.  The father was sentenced to seven years imprisonment for the maintaining, to be served concurrently with 10 years imprisonment for the prostitution offences.  The decision of the Court of Appeal is reported at R v TR and FV; ex parte Attorney-General (2008) 186 A Crim R 420. 

[10]  The learned Judge referred to the “mitigating features” which distinguished the applicant’s offence from the complainant’s mother’s maintaining offence.  He said:

“Significantly, in contrast with the mother’s situation, this period of abuse was over a relatively short period of time, two months, I find, but it was of the high end of intensity of sexual activity, that is, unlawful carnal knowledge.

You were not in a position of loco parentis or in any position of trust.  The mother’s position, on the other hand, was one of the gravest breaches of trust that one could imagine.

You did not initiate the corruption of the child but you took advantage of that position the child had been placed in, who you knew was under the control of the mother, and your actions perpetuated the corruption…

The type of activity which you indulged in is also to be distinguished from that of the mother whose activity was at the lower end of the scale of sexual activity with her daughter and others, and also an involvement in the promotion of the abuse of her daughter, which is the basis, as I understand it, for the maintaining charge.  It is immediately obvious that your activity is entirely different.  Your activity was penetrative sexual activity, unlawful carnal knowledge.”

[11] At the conclusion of his remarks, His Honour referred in this way to the issue of parity:

“The issue of parity has been raised.  I’ve already made a number of comments which demonstrate some significant and substantial differences between your case and that of the mother, in particular.  The father was also sentenced to a period of seven years’ imprisonment for behaviour less culpable than the mother.

By comparing the facts and circumstances that the jury have found in your case, and which I accept, it is, in my view, a case where, considering the principle of parity and the substantial and significant differences, I come to the conclusion that your sentence should be a sentence of less severity than the mother.  Your behaviour to the child was nonetheless abusive in the circumstances and, as I have said before, at the higher end of the scale of sexual misconduct…”

[12] Mr Vasta submitted that His Honour’s sentencing discretion miscarried “in that the process of sentencing became preoccupied with a comparison between the applicant’s criminal conduct and that of the child’s parents”.  That is not evident from a reading of the record, which shows that this issue, while discussed, did not predominate.  The sentencing remarks read as a balanced and comprehensive assessment of the whole range of relevant circumstances.  In any event, at the sentencing hearing Mr Vasta invited the Judge to give consideration to the sentences imposed on the parents in respect of the maintaining offences.  Having referred to “the parity of sentencing principle”, he submitted as follows:

“[W]hen we’re looking at the level of criminality, one must say that at the top of the tree must come the mother and the father, and from that point onwards, whoever may be guilty of maintaining the sexual relationship on the basis that the actual physical acts that are associated with that maintaining, that that sentence has got to be far less…”

[13] The sentences imposed upon the parents for the maintaining were relevant issues for consideration by the sentencing Judge, and the comparisons he made were both accurate and reasonable.

[14] Mr Vasta submitted that the six year sentence was manifestly excessive, and that the applicant should have been sentenced to three years imprisonment suspended after 12 months for an operational period of two years.  The primary response of Mr Copley SC for the respondent emphasized the extent of the applicant’s activity – a 50 year old engaging in sexual intercourse three or four times per week over a two month period with a 13 year old girl he knew was being prostituted by her parents.

[15] Mr Vasta referred to a number of cases to which I will now refer.  He mentions Gleeson CJ’s reference to “reasonable consistency” in Wong v R (2001) 207 CLR 584, 591.  The circumstances of these cases vary substantially.  This case for example, is remarkable for the premeditated way the applicant, by committing this offence of maintaining, “perpetuated the corruption” of a 13 year old girl who he knew was being prostituted by her parents.  That lends this case a particularly reprehensible and grave character.  Indeed, as conceded by Mr Vasta in his written material, “there were no sentences relating to the charge of maintaining comparable to the present”. 

[16] Nevertheless, I will mention the cases to which he draws attention: 

(a) In R v Cunningham [2008] QCA 289, where a sentence of 18 months imprisonment was imposed following a plea of guilty, the conduct did not extend beyond indecent dealing.  Significantly, the Prosecutor had there sought a sentence of three years imprisonment:  in the instant case, the prosecutor advanced a range of nine to 12 years.

(b) The sentence in R v WAB [2008] QCA 107 was three years imprisonment.  But that again was a case of indecent touching (as was R v CAQ [1999] QCA 197).  Also, on appeal, there was no application for leave to appeal against sentence.

(c) R v MAG [2004] QCA 397 attracted a seven year term following a trial, where the prisoner had maintained the relationship with a 13 year old foster daughter, paying her for sex.  This six year term does not sit uncomfortably with that sentence.

(d) R v WAA [2008] QCA 87 was a case where the primary Judge sentenced on an impermissible basis, and the Court of Appeal imposed a three year term for maintaining which persisted over nine months.  The respondent had contended for a range of three and a half to four years.  It was not a carnal knowledge case, and the Court of Appeal noted that the applicant was in poor health and would suffer “additional hardship” because of the imprisonment.

(e) R v Beesley [2008] QCA 240 was again a case where the sentencing process had miscarried, and four years imprisonment was imposed on appeal.  That offending was of more substantial proportion than the present.

[17] I accept Mr Copley’s submission that the sentence imposed in this case gains support from R v W [1998] QCA 343, judgment given 26 August 1998.  That maintaining persisted over four months.  The victim was a 13 year old girl.  The complainant was about 30 years of age.  The offending involved about 19 instances of sexual relations, some including W’s de facto partner.  W had occupied a position of trust in relation to the complainant, although they were not related.  W was sentenced to seven years imprisonment.  I accept the submission that “W is similar to the present case in that it involved unlawful carnal knowledge over a short period but frequently with a girl of 13; W demonstrates that the sentence imposed on the applicant was not manifestly excessive”.

[18] There is no basis for concluding that the learned Judge erred in principle, or that the sentence imposed is manifestly excessive.

[19] I would order that the application for leave to appeal against sentence be refused.

[20] KEANE JA:  I agree with the Chief Justice.

[21] CHESTERMAN JA:  I agree with the order proposed by the Chief Justice, for the reasons given by his Honour.