R v DBC[2012] QCA 203

SUPREME COURT OF QUEENSLAND

[1] CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Muir JA.  I agree that the appeal should be dismissed, for those reasons.

[2] HOLMES JA: I agree with the reasons of Muir JA and the order he proposes.

[3] MUIR JA: The respondent pleaded guilty to one count of maintaining an unlawful sexual relationship with his daughter, two counts of indecently dealing with the child and six counts of rape.  He was sentenced to nine years imprisonment for the maintaining offence with the parole eligibility date fixed at 2 September 2013 (at the one third point of the term of the sentence).  Concurrent six year terms of imprisonment were imposed for the rape offences and concurrent three year terms for the indecent treatment offences. 

[4] The appellant appeals under s 669A of the Criminal Code (Qld) on grounds that the nine year sentence for the maintaining offence was manifestly inadequate and that the sentencing judge erred in failing to declare that offence a serious violent offence. 

[5] The respondent was aged between 32 and 34 at the time of the offending conduct and had no prior criminal history.  The complainant was 11 or 12.  The respondent’s wife, the complainant’s mother, died on 3 May 2008 of cancer having suffered from that condition since 2001.  A psychologist, in a pre-sentence report prepared for Legal Aid Queensland, expressed the opinion that the respondent experienced “…a poor adjustment to the loss of his wife” and exhibited “…a cluster of signs and symptoms consistent with adjustment disorder and depression”.  He was of the view that these matters and his exposure to his wife’s treatment and deterioration in health were likely to have been “severe and exacerbated by the depression experienced through his wife’s treatment”.  He concluded that by virtue of his condition, the respondent’s “capacity to understand the nature of [his offending conduct] was likely to be impaired…”  He was also of the view that the respondent demonstrated empathy for the complainant and appeared remorseful and ashamed of his actions. 

[6] The respondent’s offending came to light after the complainant had told her boyfriend about the respondent’s conduct.  When interviewed by police, the respondent admitted the complainant’s allegations and volunteered that there had been additional offending conduct.  The two indecent treatment counts and two rape counts were based on the respondent’s admissions.  He pleaded guilty at an early stage.  The sentencing judge, in his sentencing remarks, observed that the admissions were “…of significant assistance to the prosecution of [the] charge of maintaining”.

[7] The respondent’s offending commenced after the death of his wife.  The complainant said that intercourse occurred on a dozen occasions, but she could only particularise two.  The respondent particularised others and admitted to rubbing the complainant’s vaginal region on at least two other occasions.  One of the rape counts involved “fingering”.  The others involved penile intercourse accompanied by “fingering” and cunnilingus.  The offending conduct ended when the respondent commenced a relationship with another woman. 

[8] The appellant contended, by reference to the schedule of facts in evidence on the sentencing hearing that sexual intercourse occurred once or twice a week over the maintaining period of about 17 months.  The schedule does not support that conclusion.  There is an introductory statement that:[1]

“The complainant states that intercourse occurred on a dozen occasions but could not particularise more than two events.  The defendant particularised three events of intercourse and also made admissions to rubbing the complainant’s vagina on at least two other occasions.”

[9] In the part of the schedule relating to count 1, it is stated that:[2]

“The complainant is able to particularise two occasions of sexual intercourse but indicated that the [respondent] had sex with her ‘probably about a dozen times’ but does not particularise further events.  When asked why she thought it happened a dozen times she replied ‘Um, dunno, just though it would have been.’ The complainant indicates that the [respondent] had ‘full sex’ with her on each of the dozen occasions, and he also ‘fingered’ her and would ‘lick her down below’.

…

The complainant states that it happened 12 times between June/July 2008 and September/October 2009 but that it was ‘off and on’ and did not happen regularly – but she goes on to say that he would do it once or twice a week.  This is approximately a 15 month period.”

[10] The reference to “once or twice a week”, taken in context, means that on occasions during the offending period intercourse occurs once or twice a week.  That was the basis on which the judge sentenced.  He said that the respondent’s admissions were “of significant assistance to the prosecution of the charge of maintaining”.

[11] The appellant submitted that the nine year term of imprisonment coupled with eligibility for release on parole after serving only three years gave the respondent an excessive benefit for mitigating circumstances and gave insufficient weight to the serious nature of the offence, general and personal deterrence and the protection of the community.  For those reasons, it was said, the sentence was “plainly unreasonable and manifestly inadequate”.[3]

[12] The sentencing judge was also criticised for not having any or any sufficient regard to the risk that the respondent might reoffend.[4]  A psychologist’s report had remarked that the respondent “did not appear to understand the exploitation of his role as a parent that contributed to the sexual act” and that he “failed to truly acknowledge and respect the bereavement experienced by his daughter”.  Using “actuarial tools”, the psychologist concluded that the respondent posed a “MEDIUM risk of sexual recidivism”.  He said that based on actuarial data 84 per cent of such offenders were unlikely to reoffend.

[13] The above matters were canvassed during the sentencing hearing and the fact that they were not mentioned in the sentencing remarks does not mean that they were not taken into account by the sentencing judge.

[14] The appellant submitted that the appropriate starting point “for the regular rape and sexual abuse of one’s very young natural daughter would be in the order of 12 to 15 years imprisonment before moderation for matters of mitigation”.  It was accepted that those matters included: the respondent’s “poor adjustment” and depression associated with the loss of his wife; cooperation with authorities; and the guilty plea.  However, it was contended that the moderated sentence should have been no less than 10 years imprisonment unless strengthened by a serious violent offence declaration or the postponement of the parole eligibility date until half the head sentence had been served.  The appellant emphasised the serious nature of the respondent’s offending which included taking advantage of his daughter’s special needs arising from the loss of her mother coupled with a gross betrayal of trust and the inevitable impact of the offending conduct on the complainant.

[15] Particular emphasis was placed on R v C; ex parte A-G (Qld),[5] in which de Jersey CJ, Jerrard JA and White J agreeing, observed:

“The cases suggest that for roughly comparable offending and after allowing for a plea of guilty a range generally commencing at about the level of 10 years’ imprisonment would apply.  One must observe, however, that the circumstances of these offences exhibiting infinite variation, one should not be rigidly tied to ranges as such, but flexible enough to give due allowance to significant variations from case to case.  Having said that, however, it is in my view difficult to see, in a case generally like this, after allowing for the plea, that one could responsibly proceed below 10 years’ imprisonment.”

[16] In order to fully understand the import of the Chief Justice’s observations, it is necessary to know the nature of the conduct to which they referred.  The offending, perpetrated by the complainant’s natural father, involved multitudinous acts of non-consensual intercourse, was persisted in despite the complainant’s protestations and, in the latter period of the offending, was accompanied by the complainant being made to swallow the respondent’s ejaculate in the course of oral sex.  There was one act of sodomy which caused the complainant to “kick and scream”.  That was followed by an act of oral sex.  On another occasion, the respondent placed a pillow over the complainant’s head for a couple of minutes when she cried during intercourse.  There were “literally hundreds of acts of sexual intercourse, including rape as such” over a period of two and half years.

[17] Not surprisingly, the Chief Justice said that “…it is in my view difficult to see, in a case generally like this, after allowing for the plea, that one could responsibly proceed below 10 years’ imprisonment” (emphasis added).

[18] The respondent relied also on R v TS,[6] in which Mackenzie AJA, Fraser JA and Daubney J agreeing, said:[7]

“Analysis of numerous authorities has been conducted in some detail in cases such as R v SAG and R v BAY [2005] QCA 427.  Repetitive analysis of them is unnecessary.  The cases generally and others particularly referred to by counsel, some of which were pleas of guilty and some of which involved a late plea or a plea of not guilty, reveal a diversity of outcomes, but generally between 10 to 15 years.  That reinforces what de Jersey CJ said in R v C; ex parte A-G (Qld), previously referred to.  Ultimately, assessment of the individual circumstances of this case within the constraints, for jurisdictional reasons and to achieve an outcome that is of a kind that is not inconsistent with other broadly comparable cases, leads to the conclusion that the sentence imposed for maintaining was manifestly excessive.”

[19] In R v TS, a sentence of 20 years imprisonment for counts of maintaining, sodomy and rape were set aside and replaced by 12 year terms.  The offender, who pleaded guilty to the offences against his daughter was sentenced on the basis that he had committed offences against the complainant “at every available opportunity” during a six year period “subject to the qualification that as the complainant grew older, she began to resist [the offender’s] advances and the offending became less regular”.  The offending included painful penile intercourse, sodomy which caused the complainant “great pain and distress” and was accompanied by the aggravating circumstance that “the applicant had manipulated the complainant by providing her with rewards and other incentives as a way of coercing her cooperation and by threatening to withhold them if she was not cooperative”.  The offender, who had a previous conviction for rape, had been sexually interfering with the complainant since she was three.

[20] The offending conduct in R v C and R v TS was more protracted, more frequent, more cruel and more demeaning than that of the respondent.

[21] In support of the submission that the subject sentence was not manifestly inadequate, the respondent relied in particular on R v KAI,[8] R v SAU [9] and R v SBJ.[10]

[22] In KAI an application for leave to appeal against a 10 year sentence for the applicant’s maintaining a sexual relationship with his step-daughter, aged between nine and 15 at relevant times, was refused.  Williams JA observed that decisions to which the Court had been referred indicated “a broad range for offences of this type from seven to 13 years with some exceptional cases justifying sentences in excess of 13 years”.  The offending conduct commenced with touching the complainant’s breasts and vaginal area through her clothes, graduated to touching those areas unclothed and culminated in oral sex and vaginal intercourse.  Some five or six acts of intercourse took place after the complainant had been impregnated by the applicant.  The fact that the applicant fathered the complainant’s child was regarded as a “serious aggravating circumstance”.  McPherson JA observed in that regard that:

“It has burdened her future with the responsibilities of a mother at a very early age to say nothing of the effect on the life and future of the baby who was conceived and born in these unhappy circumstances.”

[23] The complainant was on a pension, having had to leave school in order to care for her child.

[24] An application for leave to appeal against an eight year term of imprisonment with a recommendation for parole after three years imposed for a maintaining offence was refused in SAU.  The applicant, who indicated that he would plead guilty on the day before his trial was to commence, abused his natural daughter sexually when she was 14, 15 and had just turned 16.  Initially, his conduct included showing her pornographic movies, touching her vaginal area, masturbating her and himself, using a vibrator and making her perform fellatio on him.  In the final 12 months of the offending period, he regularly engaged in penetrative intercourse with her.  Although the applicant acknowledged some of his wrongdoing to police, the complainant was required to give evidence at a committal hearing and the matter was sent to trial.  There was no indication of remorse. 

[25] Holmes JA, with whom the Chief Justice and Mackenzie J agreed, remarked that given the nature and extent of the offending the head sentence was not out of proportion to those imposed in the matters cited, which included R v H,[11] in which a sentence of eight years imprisonment with a recommendation of parole after three years in respect of a count of maintaining with a circumstance of aggravation was upheld.  In that case, after reviewing the authorities, Philippides J, with whom the other members of the Court agreed, concluded that the sentence, while at the upper end of the sentencing range, was within the proper exercise of the sentencing discretion. 

[26] The applicant, who pleaded guilty, was between 41 and 43 years of age at the time of offending and he had no relevant prior criminal history.  The offending conduct took place over a two year period with the applicant touching the complainant’s genitals and breasts and placing his erect penis against her body.  This conduct occurred up to several times a week, culminating in two non-consensual acts of intercourse which occasioned the complainant pain and left her feeling frightened and disgusted.  The sentencing judge described the second act of incest, which was accompanied by threats, as “inhuman, humiliating, [and] physically disgusting”.  The Court concluded that the sentencing judge was entitled to take the view that the conduct involved in the rapes was “brutal” and “terrifying”.

[27] R v SBJ provides little assistance for present purposes.  The applicant, who appeared on his own behalf, did not seek to interfere with the head sentence of nine years for maintaining a sexual relationship over a five year period with his daughter who was under 16.  Rather, he sought to have the parole eligibility date brought forward.  The offending, which commenced when the complainant was in grade 5 or grade 6 and concluded when she was in grades 8 or 9, consisted of sexual intercourse up to three to four times a week.

[28] The appellant’s contentions as to the appropriate sentencing range may be contrasted with the prosecutor’s submission to the sentencing judge that the authorities indicated a range of eight to 10 years and that there was nothing in the respondent’s conduct that would “lead” to the submission that a serious violent offence declaration should be made.  She accepted also that parole eligibility at the one third point of the sentence was appropriate.

[29] In reliance on R v Vincent; ex parte Attorney-General (Qld)[12] and R v Price; ex parte A-G (Qld),[13] the respondent submitted that in the absence of “exceptional circumstances” the appellant should not be permitted to seek a sentence on appeal more severe than that imposed in accordance with the prosecutor’s submissions.  In Lacey v A-G (Qld),[14] the reasons for the majority, in the context of a discussion of the principle against double jeopardy, referred to the traditional treatment of Crown appeals against sentence as “exceptional”.[15]  In Everett v The Queen,[16] Brennan, Deane, Dawson and Gaudron JJ quoted with approval the observations of King CJ (with whom Mitchell and Williams JJ agreed) in R v Wilton:[17]

“It is necessary to consider whether the prosecution should be allowed to raise on the appeal the contention that the sentence ought not to have been suspended when contention was not put in the Court below.  The consequences of allowing the prosecution to do so are serious.  The respondent has faced the prospect of deprivation of his liberty by way of imprisonment and has been spared, subject to observance of the conditions of the bond.  If the prosecution is allowed to raise the contention he must again face the prospect of imprisonment.  This is what the Federal Court meant in R v Tait and Bartley by ‘double jeopardy’.  In my opinion, this Court should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing Judge, only in exceptional circumstances which appear to justify that course.  I endorse with respect what was said in Tait and Bartley as to the duty of prosecuting counsel before the sentencing judge.  In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge, and this course is regarded by the prosecution as beyond the proper scope of the judge’s discretion, a submission to that effect should be made.  Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General.”

[30] After quoting the above passage from King CJ’s reasons and referring to GAS v The Queen[18] and Everett, this Court in R v KU; ex parte Attorney-General (Qld) (No 2),[19] said:

“The proper sentencing of offenders is, of course, a matter of public interest; but the principles reflected in the passages cited above show that that interest will only exceptionally justify an appellate court acting upon an argument advanced on appeal on behalf of the prosecution that a sentence imposed in accordance with the prosecution’s submission was not a proper sentence.  As the passages cited above show, the abiding reason for this constraint upon the exercise of the appellate function is that, in the administration of criminal justice, the interests of finality are, save in exceptional cases, of paramount importance as a protection of the individual from ongoing harassment by the state.”

[31] The principle or approach under discussion is also based on “deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy”.[20]  In GAS v The Queen,[21] Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ referred to the principle recognised by McHugh J in Everett[22] that the Court had a discretion to dismiss an appeal by the Crown on the ground that the prosecution had led the sentencing judge into a material and decisive error.  In Everett, McHugh J relevantly said:[23]

“It is well established that, in the exercise of its discretion to grant leave to appeal against a sentence, a court of criminal appeal must take into account the attitude of the Crown in the sentencing court.  Even when it appears that the sentencing judge has erred in a fundamental way that may affect the administration of justice, fairness to the sentenced person requires that the Crown’s concurrence with, or failure to object to, a proposed course of action by the sentencing judge must be weighed in the exercise of the discretion.  This is particularly so when the convicted person has been given a non-custodial sentence.  Private litigants who appeal against judgments and orders are not usually allowed to withdraw concessions made or concurrences expressed in the course of litigation.  As a general rule, neither should the Crown be permitted to depart from a course of action that may have induced the sentencing judge to take the course that he or she did.”

[32] The “general rule”, and the principles underlying it, were discussed recently by the Court in Director of Public Prosecutions (Cth) v Gregory,[24] but it is unnecessary, for present purposes, to further explore these principles which were not in dispute on this appeal.

[33] In R v KU, the Court concluded that the appeal should be allowed despite the finding that a major factor responsible for the sentencing judge’s failure to impose sentences reflecting the seriousness of the offending conduct was the approach taken before her of the prosecutor.  The circumstances which led the Court to take that course in R v KU do not exist here.  It will be apparent, I think, from the earlier discussion of the authorities relied on by the appellant, that the offending conduct in those cases was substantially graver than that of the respondent in this case, abhorrent though it was.  It is plain from the sentencing remarks that the primary judge was under no misapprehensions as to the gravity of the respondent’s offending, but he was persuaded by the authorities cited to him, including KAI and R v SBJ, that the sentencing range advocated by the prosecutor was correct.  The sentencing judge appropriately took into account the mitigating matters raised in the psychologist’s report and, no doubt, the respondent’s remorse, prospects of rehabilitation and early plea of guilty.

[34] Having regard to the earlier discussion of comparable sentences, I am not persuaded that the sentence for maintaining fell outside the range of sentences that could have been imposed by the exercise of a sound sentencing discretion, particularly in light of the respondent’s confessions which assisted his conviction on the maintaining count and secured his conviction on other counts.[25]  Even if, contrary to my conclusion, the nine year sentence was not within the appropriate range, the circumstances of this case are not such as to warrant the intervention of this Court, having regard to the conduct of the prosecution on the sentencing hearing.

[35] I would dismiss the appeal.