R v BBY[2011] QCA 69

SUPREME COURT OF QUEENSLAND

1. FRASER JA: I agree that the application should be refused for the reasons given by Atkinson J.

2. MARGARET WILSON AJA:  I would dismiss the application for leave to appeal against sentence for the reasons given by Atkinson J.

3. ATKINSON J:  The applicant was convicted on his own pleas of guilty on 2 September 2010 on 41 counts of sexual offences against children.  His offending was persistent, prolonged and degrading sexual offending against nine different children.

4. On the first indictment he was convicted on five counts of maintaining a sexual relationship with a child, eight counts of indecent treatment of a child under 16, under 12, two counts of attempted rape, 23 counts of rape, one count of sodomy and one count of carnal knowledge of a child under 16 years. On a second indictment he was convicted on one count of maintaining a sexual relationship with a child.

5. The maximum penalty for an adult maintaining an unlawful sexual relationship with a child is life imprisonment; for rape, life imprisonment; for indecent treatment of a child under 12, 20 years imprisonment; for attempted rape, 14 years imprisonment; for unlawful sodomy of a person under 18 years, 14 years imprisonment; and for unlawful carnal knowledge, 14 years imprisonment.  He thus pleaded guilty to 28 offences for which life imprisonment was the maximum penalty.

6. Against child A, he was convicted on one count of maintaining a sexual relationship with a child for a period of five years when A was aged between six and 11 years old (count 1); one count of attempted rape when A was seven to eight years old (count 2); and three counts of rape when A was eight to 10 years old (counts 3 to 5).

7. Against child B, the applicant was convicted of one count of maintaining a sexual relationship with a child when she was aged between 14 and 16 years old (count 6); and one count of rape when she was aged 15 (count 7).

8. Against child C, the applicant was convicted on six counts of indecent treatment of a child under 16, under 12 when she was aged between nine and 10 years old (counts 8 to 13).

9. Against child D, he was convicted of one count of maintaining a sexual relationship with a child when she was aged between eight and 11 years old (count 14); and four counts of rape (counts 15 to 18).

10. Child E and child F were sisters. Against child E, he was convicted of one count of maintaining a sexual relationship with a child when she was aged between eight and 11 years old (count 19); and seven counts of rape (counts 20 to 26). Against her older sister, child F, the applicant was convicted of one count of maintaining a sexual relationship with a child when she was aged between 10 and 12 years old (count 27); and six counts of rape and one count of sodomy (counts 28 to 34).

11. Against child G, the applicant was convicted of two counts of indecent treatment of a child under 16, under 12 (counts 35 to 36), two counts of rape (counts 37 to 38) and one count of attempted rape (count 39). Child G was aged between eight and nine at the time of the offences against her. Against child H, the applicant was convicted of one count of unlawful carnal knowledge of a child under 16 (count 40). She was 14 years old at the time.

12. On the second indictment, the applicant was convicted of one count of maintaining a sexual relationship with a child. That relationship took place over 10 months when child I was aged 14 to 15 years.

13. The applicant was sentenced to concurrent sentences of 14½ years imprisonment on counts 1, 14, 19 and 27; 10 years imprisonment on count 6 on the first indictment and count 1 on the second indictment; eight years imprisonment for each of the counts of rape and sodomy; three years imprisonment for each of the two counts of attempted rape and one count of unlawful carnal knowledge; and three years imprisonment for each of the counts of indecent treatment of a child under 16, under 12.

14. The learned sentencing judge took the view that a head sentence of 18 years imprisonment was appropriate in relation to his plea of guilty to those matters. His Honour said that the sentence would have been higher had he gone to trial. The factors that led his Honour to the view that 18 years imprisonment was appropriate were the number of victims involved, the tender age of some of the children, the duration of the maintaining offences, the type of conduct involved in the maintaining offences including penetration of the children both digitally and orally as well as, on occasions, penile penetration in acts of anal intercourse as well as attempted vaginal intercourse, that the offences were committed in the presence of other children and the breach of trust involved in the offences.

15. The applicant came into contact with the children in a position of trust involving him in his role as a school bus driver and as a family friend. Taking into account his age, his pleas of guilty which meant that the children were not required to give evidence in any of the matters, and his health problems, which his Honour said paled into insignificance in the light of his offending behaviour, the learned sentencing judge reduced the sentence to a sentence of 14½ years on the most serious four maintaining offences and lesser concurrent sentences for the other offences.

16. The cases decided in this court show that there are a number of factors which tend to exacerbate a sentence for maintaining a sexual relationship with a child. They include:

• Young age of child when offending began: R v SAG (2004) 147 A Crim R 301 at 306;

• Lengthy period for which relationship continued: R v SAG (2004) 147 A Crim R 301 at 306;

• If there was a parental or protective relationship or abuse of trust: R v SAG (2004) 147 A Crim R 301 at 307;

• If there were multiple victims: R v SAG (2004) 147 A Crim R 301 at 307;

• If rape occurred during relationship and if so, how often;

• If penile rape occurred during relationship: R v SAG (2004) 147 A Crim R 301 at 306;

• If there was unlawful carnal knowledge of the victim: R v SAG (2004) 147 A Crim R 301 at 306;

• If the victim bore a child to the offender: R v SAG (2004) 147 A Crim R 301 at 307;

• If offences took place in presence of other victims: R v Ruhland [1999] QCA 430;

• Actual physical violence or emotional blackmail or other manipulation of victims:  R v SAG (2004) 147 A Crim R 301 at 307; R v L [2002] QCA 377 at 11;

• Whether offences committed whilst on bail or were committed soon after release from prison for similar offences: R v G [2002] QCA 381 at 4; R v Ruhland [1999] QCA 430;

• Whether offences committed with a group of other predators against children: R v Ruhland [1999] QCA 430.

17. In addition there are a number of factors which tend to mitigate a sentence that otherwise would be imposed:

• Remorse such as by voluntarily approaching the authorities or seeking help for the whole family: R v SAG (2004) 147 A Crim R 301 at 307;

• Co-operation with investigating authorities: R v SAG (2004) 147 A Crim R 301 at 307;

• Co-operation with administration of justice such as pleading guilty and saving victims from testifying: R v SAG (2004) 147 A Crim R 301 at 307;

• Lack of previous convictions: R v L [2002] QCA 377 at 7;

• Personal history including employment history, age, ill-health and whether the offender had himself been abused: R v L [2002] QCA 377 at 7.

18. Many of the exacerbating factors apply in this case. The longest period of maintaining was some five years and the youngest child, A, was only six years old when that began. The other children ranged in age when the offences began from seven to 14 years old.

19. The applicant worked in positions where he was able to gain the trust of the children’s parents and so arranged for the children to be left at his home where he sexually abused them. The mother of child A knew the applicant as the bus driver for the local social club. He sometimes took A on his bus run with him. A was also a friend of the applicant’s daughter and child D and would sometimes stay overnight at the applicant’s home either with the applicant’s daughter or with D.

20. B’s mother knew the applicant from when B was only one year old. He delivered milk to their home and B called him “Uncle”. In addition B’s grandmother was a close friend of the applicant and lived at his home for a few months during the period.  B was for some time under the care of her aunt and stayed at the applicant’s home to give her aunt a break.  B was also a friend of the applicant’s daughter.  B complained of the applicant’s offending behaviour to her mother who unfortunately did not believe her.

21. Child C was the niece of A. C’s mother knew the applicant through her mother and knew that he was a bus driver for a local social club and the school. C started staying at the applicant’s house with A.

22. The applicant was known to D’s mother because he was the bus driver for a local social club. D’s mother considered the applicant to be a close family friend who socialised regularly with her family and celebrated Christmas and birthdays with them. He was the bus driver for D’s school and often minded D for her mother.

23. As mentioned earlier E and F were sisters. Their mother met the applicant in his capacity as the local school bus driver. The applicant’s daughter was a friend of F, and E and F often stayed at the applicant’s house. G’s mother also knew the applicant as the local school bus driver. G was a friend of E and F and once stayed the night at the applicant’s house with E and F. H’s mother was a close friend of the applicant and had known him for 25 years. H stayed at the applicant’s house during the school holidays to give her mother a break. I’s parents were friends of the applicant.

24. The applicant abused the close relationship of trust by which the parents allowed these children to stay at his house where he sexually abused them. He also abused his position of trust as a school bus driver to sexually molest the children both in his home and on the bus.

25. The circumstances of the offending showed the seriousness of his offences against these children, many of which were performed in the presence of other children. Count 1 on the indictment concerns the offence of maintaining a sexual relationship with child A. The circumstances were as follows. He offered A and D money to lick their vaginas when A was only six. They refused. On another occasion when A, C and D refused he nevertheless licked the vaginas of A and C. On the following day he requested A, C and D to suck his “doodle” saying that they could not go to D’s house to swim unless they did. He put A’s hand on his penis; he touched her breast, he had her search for a rubber band in his pants (sometimes with other complainant children present and sometimes on the bus). While she was sleeping he came into her room and put his hand on her vagina under her underwear. He had A and D lie on the bed naked with their legs apart and he then touched A’s vagina with his finger. He put his hand on A’s leg and moved it up to her vagina on top of her shorts, desisting when asked. He pulled A and D’s pants down when they were staying overnight and slapped A’s bottom with a tea towel. He put his hand down A’s shirt and squeezed and rubbed her breast. He told her not to tell anyone.

26. The facts of the count of attempted rape occurred when A and D were having a shower at the applicant’s house. He came into the bathroom and got undressed. He tried to stick his “doodle” in their vaginas and they told him not to do it as it was disgusting. The applicant’s penis touched A’s vagina but did not enter it. The first of three counts of rape concerned an occasion when A was on her own. He inserted his finger into her vagina. The two other rapes occurred when A and D were together. The applicant demanded that A suck his penis. When she refused he took her by the head and moved her head on to his penis which went into her mouth for about five seconds. On another occasion when A was with D, A recalls that the applicant put his penis “in her bottom”. There was partial penetration of A’s anus by the applicant’s penis.

27. Count 6 concerned the offence of maintaining an unlawful sexual relationship with B. Over a three year period she visited his house twice a month and he almost always did sexual things to her. He exposed himself to B, requested sex, digitally penetrated her vagina, touched her breasts and made her search for a rubber band which he put down his pants. She watched a pornographic movie with him in his bed with his daughter. The count of rape occurred when they were watching the pornographic film. The applicant inserted two fingers into her vagina for ten minutes. She tried to stop him however he would not desist until she got up saying she needed to go to the toilet.

28. The counts against child C were six counts of indecent treatment of a child under 16, under 12. On one occasion he pulled a towel away from her after she had showered. On another occasion he grabbed her when she was in the spare bedroom of his house. He pulled down her pants and licked her vagina for about two seconds but stopped when she pushed him away. On another occasion when C was with A, the applicant touched C’s vagina through her clothes. Later that morning he tried to rub her again but she walked out. He grabbed her and made her lie down but she got up. On another occasion the applicant touched and rubbed C’s bare vagina when she was staying at his house. On another occasion he grabbed her and showed her his penis. She was playing on the Playstation when he pulled down his pants and scratched his penis. A and C both looked at it.

29. The offending contained in count 14, maintaining an unlawful sexual relationship with a child, happened for a period of some two and a half years when D was aged between eight and 11. She said he often touched her in an unsafe way. The details included her masturbating him when she was at his house; his kissing her “on the rude part” when she was on her own or when she was with E and F. She performed oral sex on him several times. She said that every time she had a shower at his house something sexual occurred. On one occasion he made her sit on his head.

30. She recalled when she was digitally raped and watched her friend A being digitally raped. This happened often. D said that more things happened when she was on her own with the applicant because he would not have to keep quiet. She also told police that a few times he had done things to her and made E stand in the bedroom and watch or sit on the bed and watch. She recalled a number of specific occasions including a time when he had her masturbate him while he was alone with her in the swimming pool at her parents’ house while her parents were inside the house; there was another occasion where she went over to his house to use the trampoline and computer a few weeks later and he had her masturbate him while he was in his bed; on another occasion while she was in the bus he was driving he hid a rubber band down his pants and told her to find it; on another occasion he removed his clothing and touched her vagina while A was present in the applicant’s house.

31. When D stayed at the applicant’s house with E and F he made E take off all her clothes, then D and then F. D recalled an occasion when he was driving the bus and making children touch his penis while he was driving. She engaged in that activity twice.

32. While A and D were in the applicant’s lounge room he instructed them to take their clothes off and then he rubbed his finger on D’s vagina while kissing her breasts. He did the same to A in front of D. On another occasion when A and D were present at the applicant’s house and D was making lunch, he picked up D and moved her up and down against his penis whilst they were both clothed. On another occasion when D and F were having a shower at the applicant’s house, he came into the bathroom and touched and rubbed D’s vagina. He once licked D’s “bum crack”. He put on a pornographic film showing amongst other things a man moving his penis in a girl’s vagina. The last offending occurred about a month before she was interviewed. She remembers being in his bedroom with E and F when he touched D on the vagina and the breasts.

33. The four counts of rape against D involved digital penetration inside D’s vagina in the context of what was supposed to be a children’s game. Whilst D, E and F were on his bed, the applicant pulled down D’s pants and put his penis into her anus resulting in partial penetration. D said this hurt her. On another occasion when he was naked in his room with A and D he pulled off D’s clothes and put his penis into her anus.  On yet another occasion he pulled D’s clothes off in his bedroom, kissed her on the vagina and touched her breasts.  He put his finger into her vagina.  E came into the room and told him to stop which he did.

34. With regard to child E, on the first occasion he molested her, he digitally and orally raped her. He had E masturbate him until he ejaculated and then perform oral sex on him and said to her “I’m your boyfriend now”. E said this happened about twice a week on the school bus run. He drove the school bus for three years from 2005 to 2008. On occasions he made E look to the front and not look back while he was in the back of the bus with her sister F. She could hear sucking noises. E said that he sometimes sucked her breasts. He made her lie on the back seat of the bus while he sat on the floor, lifted her top and sucked her breasts one at a time. He licked her vagina at his house over many years.

35. The seven counts of rape involved inserting his finger into her vagina under her shorts, sucking her vagina and then masturbating himself with her hand until he ejaculated into her hand. During the school holidays he showed E and F what he referred to as a “dick massager”. He used it in front of them. He showed them pornographic films and pornographic pictures on his computer. On another occasion on the bus he instructed her to suck his penis saying if she didn’t he would tell her mother that she was cracking on to him. He held her mouth and pushed it on to his penis making her suck it while lifting her head up and down his penis for about three minutes until saying it was her sister’s turn.

36. On the following day he again made her suck his penis. On another occasion E woke up at the applicant’s house during the school holidays and found cream on her vagina.  About a week later he admitted to her sister that he had been putting his middle finger into E’s vagina and it got red so he put cream on it.  On another occasion the applicant made E suck his penis until he ejaculated into her mouth.  This happened on the bus.  On another occasion when E was alone at his house he pulled her legs apart and put his tongue into her vagina.  On the last occasion she observed him doing something sexual to her sister F.  He then sucked E’s vagina and then had her suck his penis.

37. The offence of maintaining an unlawful sexual relationship with F occurred in the period from 1 January 2006 to 27 April 2008. On the first occasion he digitally raped F and used his hands and mouth to play with her breasts. She said this sort of conduct could have happened every day while he was her bus driver. When they were sleeping at the applicant’s house he required the children who were there, being D, E and F, to walk around the house naked. He made them “go in there, one by one”. She recalled him showing them how to use his “dick massager”. She recalled him showing a pornographic DVD which involved a graphic depiction of sexual intercourse.

38. On another occasion when the applicant was about to drive the bus, he assaulted E, F and G in turn. He endeavoured to do this on another occasion by way of playing a children’s game.  He showed F pornographic material on the computer.  On another occasion he masturbated ejaculate into her hand.  He licked her vagina on the bus and offered her a $100 for vaginal sex which she refused.

39. There were six counts of rape and one of sodomy committed by the applicant on F. These involved digital penetration on the bus; forcing her to perform oral sex on him on the bus; forcing his penis into her anus in his bedroom, in the bathroom and in the computer room and one night when she was asleep she woke to find him pulling her pants down and inserting his penis into her anus. This was followed by other sexual behaviour towards her such as sucking her breasts and licking her vagina.

40. The counts against child G were two counts of indecent treatment of a child under 16, under 12, two counts of rape and one count of attempted rape. Those counts involved her finding a coin which he had put in his pants near his erect penis, touching her vaginal area again in the context of a purported children’s game, putting his penis into her mouth when the bus was parked, on more than one occasion, and then trying to make her suck his penis at his house when she was staying overnight. She put her hand over her mouth so his penis did not enter it.

41. The count of unlawful carnal knowledge concerning child H aged 14, involved his cajoling a reluctant child to sit on his penis which partially entered her vagina until she objected.

42. His offending against I involved her wagging school and having sexual intercourse with him on many occasions in exchange for money and alcohol.

43. I have set out in some detail the factors which tend to exacerbate the sentence. On the other hand the mitigating features were few. Primarily they were that he pleaded guilty and thus saved the children from having to give evidence and he had no previous criminal history. In addition he is a 72 year old man with multiple chronic medical problems including ischaemic heart disease, cerebral vascular disease, hypertension, hypercholesterolaemia, peptic ulcer disease and depression. The vision in his left eye is permanently impaired as a result of retinal detachment. That was taken into account by the sentencing judge although, unlike the situation in R v LS [2006] QCA 354, there was no evidence that his time in prison would be more difficult because of those conditions.

44. The learned sentencing judge did not make a finding that his plea of guilty indicated remorse. His Honour’s view of the applicant is confirmed by the nature of his handwritten grounds of appeal against conviction, now withdrawn, which confirmed his complete lack of insight into the serious nature of his offending.

45. Understandably the children and their mothers have been very adversely affected by the applicant’s behaviour.

46. Comparable cases suggest that a sentence of this length is warranted for crimes as serious as this. The applicant’s counsel quite properly conceded that a head sentence of 18 to 20 years imprisonment was the appropriate starting point.

47. In R v SAG, the applicant’s sentence was changed on appeal after a trial from cumulative sentences to concurrent.  He received 14 years for maintaining a unlawful sexual relationship with four step-daughters with only one offence of rape.  In R v Robinson,^[1] the applicant received an 18 year sentence on appeal in place of life imprisonment which had been imposed by the sentencing judge for maintaining an unlawful sexual relationship in respect of a child aged five to seven years old and two rapes.  That sentence was imposed after a trial.

48. In R v Ruhland the applicant pleaded guilty and was sentenced to 17 years imprisonment.  That was reduced on appeal by a further three and a half years to recognise co-operation with the police and early pleas of guilty.  In that case there were eight counts of maintaining an unlawful sexual relationship with a boy under the age of 16, three with the aggravating circumstances of carnal knowledge and anal intercourse.  The offences involved 12 boys and there were 98 offences in all.  None of the children were as young as the youngest children in this case.  At that time only one of the offences was punishable by life imprisonment.

49. Those comparative sentences suggest that the sentencing judge would have been correct, as the applicant’s counsel submitted, to start with a head sentence of 18 to 20 years. The applicant argued that a reduction of the sentence by 3½ - 5½ years was insufficient to give effect to the matters in mitigation. He submitted that the head sentence which would otherwise have been imposed should have been reduced by the “customary” one-third to recognise the advantage to the administration of justice by his plea of guilty, which saved a long and complex trial and any of the children having to give evidence, and to recognise an appropriate amelioration because of his ill health.

50. A plea of guilty does not inevitably lead to a reduction in the head sentence of one-third. Each sentence depends on its own facts. It is the case that when a serious violent offence declaration is made or is automatically part of the sentence because it is 10 years imprisonment or longer, the only means of recognising the effect of the plea of guilty is by reducing the head sentence: R v Wark [2008] QCA 172 at [20].  In R v Wark, the sentence of imprisonment was reduced from 15 to 16 years to 13 years because of the plea of guilty.  In R v Ruhland, the sentence was reduced from 17 years to 13½ years for that reason.  Neither of those comparable cases support the proposition that the reduction of the sentence in this case was inadequate. 

51. The applicant’s plea of guilty assisted in the administration of justice by saving the nine children from having to give evidence and that warranted a reduction in the head sentence. There was however, no contrition or remorse and no evidence that his medical conditions would make his time in prison any more arduous. Indeed the affidavit relied upon on appeal about his medical conditions tended to show that they had been attended to promptly and appropriately in custody.

52. A reduction of between 3½ to 5½ years was adequate to recognise the factors in his favour. I would refuse the application for leave to appeal against the sentences imposed.