R v CBJ[2013] QCA 258

SUPREME COURT OF QUEENSLAND

[1] MUIR JA:  Introduction The applicant pleaded guilty to 42 of the 47 counts on an indictment.  A nolle prosequi was entered on the remaining counts (counts 30, 33, 34, 40 and 41).  The complainant in respect of counts 1, 2, 3 and 6 (complainant A) was aged between four and eight years at the time of the offending conduct.  His sister (complainant B), aged six when the majority of the offences were committed, was the complainant in respect of the other counts.  Sentences of 15 years imprisonment were imposed in respect of eight (counts 20, 22, 24, 29, 36, 37, 39 and 45) of the 10 counts of rape and ten year terms were imposed in respect of the other two counts (counts 1 and 28).  A serious violent offence declaration was made in respect of each of those counts.  The remaining concurrent sentences were all imposed in respect of counts of either indecent dealing with a child or exposure to an indecent act.  They were:

• Counts 2, 5, 14, 19, 21, 23, 26, 38, 44 – six years imprisonment
• Counts 3, 7, 8, 10, 13, 16, 18, 25, 27, 31, 35, 42, 46 – four years imprisonment
• Counts 9 and 11 – three and a half years imprisonment
• Counts 4, 6, 12, 15, 17, 32, 43, 47 – three years imprisonment

[2] The applicant seeks leave to appeal against the sentences on the ground that they were manifestly excessive.  On the hearing of the appeal, the applicant’s case was confined to challenging the 15 year terms of imprisonment.

The applicant’s antecedents

[3] The applicant was 54 years of age when sentenced.  When offending against the complainants, he was living with the two children and their mother, whom he married in December 2006.  The applicant had a history of stealing female clothing.  He was sentenced to 12 months probation in 1976 for wilful exposure.  He was then 17 years old.  When aged 19, he was sentenced to an effective period of nine months imprisonment for the aggravated assault of a 12 year old girl.  He entered the house in which she was sleeping and tried to kiss her.  He then fled the house but subsequently returned and was seen by the victim’s mother climbing, naked, into the house through a window.  In 1995, he was sentenced to three years imprisonment for wilfully exposing a six year old child to an indecent act.  The applicant, then 36 years of age, entered a house and masturbated in front of the child.

[4] The applicant’s present offending was discovered in January 2012 after the complainants’ mother sold a CCTV security system belonging to the applicant.  The purchaser saw footage saved on the system’s hard drive showing the applicant committing sexual acts on complainant B and contacted the police.  These acts formed the bases of counts 7 to 47.

The offending conduct

Incident 1 – counts 7–17 on 5 January 2009

[5] Over an eight minute period, the applicant may be seen: placing his mouth on and moving his mouth over complainant B’s vagina underneath her underwear; committing two acts of simulated intercourse on the complainant who was dressed at the time; masturbating while kneeling or leaning over the complainant; and touching and moving his mouth over the complainant’s genital region over her underwear on numerous occasions.

Incident 2 – counts 18–29, 31 and 32 on 9 January 2009

[6] Over a period of 14 minutes 30 seconds, the applicant is depicted perpetrating sexual acts on complainant B which include: four acts of penile vaginal penetration; an act of digital penetration; acts of simulated intercourse on the complainant’s exposed genital region; placing his face between the cheeks of the victim’s buttocks; rubbing and kissing the victim’s buttocks; licking the complainant’s exposed vagina; and masturbating, culminating in ejaculation on the victim’s stomach.

Incident 3 – counts 35–39, 42 and 43 on 14 January 2009

[7] The relevant footage, which is about seven minutes in duration, depicts the applicant masturbating in the presence of complainant B, engaging in vaginal intercourse with her on three occasions and engaging in oral sex.  He is also seen to ejaculate on the child’s face.

Incident 4 – counts 44–47 on 20 January 2009

[8] Over a period of two minutes and six seconds, the applicant engaged in vaginal intercourse with complainant B.  He also engaged in oral sex with her and ejaculated on her stomach.

Counts 1–6 on unknown dates between 2 July 2006 and 14 July 2010

[9] Counts 1–4 inclusive were committed when the naked applicant made complainant A suck his penis and the applicant sucked the child’s penis.  The applicant also made complainant A, in the presence of complainant B, “lick the inside of his bottom”.  Counts 5 and 6 concern the applicant placing his tongue in complainant B’s vagina in the presence of complainant A.  Counts 1–6 were based on disclosures made by complainant A during a police interview in February 2012.

The applicant’s contentions

[10] The applicant submitted that, despite the nature of the offending conduct and the involvement of more than one complainant, the 15 year sentences imposed failed to give sufficient allowance for his early plea, the relatively brief duration of the offending and the absence of a maintaining charge.  It was submitted that this case was more serious than those that attracted 10 to 12 year sentences, but was less serious than those in which the starting point was said to be 18 to 20 years.  The appropriate sentence was said to be 13 years.  The cases particularly relied on to support the above contentions were R v Dickeson; ex parte A-G; R v Dickeson,[1] R v NK,[2] R v S,[3] R v Ruhland,[4] R v Krieger,[5] R v KAC,[6] R v BBY[7] and R v MBJ.[8]

Comparable sentences relied on by the applicant

[11] The 29 year old applicant in Dickeson, who had no relevant criminal history, was sentenced to 10 years imprisonment for maintaining a sexual relationship with one complainant aged eight and another aged six over a period of about nine and a half months and to five years imprisonment for indecent treatment of a child under 12 years.  He had befriended the victims’ mother in order to gain the trust of the complainants.  Images obtained from computer hard drives and a digital camera revealed that Dickeson had “a full sexual relationship with [the older complainant], including penile vaginal intercourse and fellatio”.  Dickeson’s offending included having both girls masturbate him and permitting his penis to be placed in their mouths.  Dickeson’s penis was placed partly inside the younger complainant’s outer labia.  It was found that Dickeson “groomed [the children] and corrupted them for his own selfish, perverted sexual satisfaction”.  Dickeson’s application for leave to appeal against sentence and the Attorney-General’s appeal against sentence were dismissed.

[12] The applicant in NK, who was 27 to 29 when offending, was sentenced after pleas of guilty to terms of 15 years imprisonment for each of two counts of rape and four counts of incest.  In two separate episodes of up to 10 minutes in duration about one week apart, the applicant raped, committed incest with and indecently dealt with the five year old complainant, the applicant’s step-daughter, who looked upon him as her father.  The applicant caused the complainant to perform oral sex on him, penetrated her anus with his penis, ejaculated on her and made her masturbate him.  He produced 17 separate video files depicting his rape and other sexual abuse of the complainant which he widely distributed.  The applicant had been convicted in 2000 of possession of an objectionable computer game depicting “tiny girls” being anally penetrated.

[13] Fraser JA, with whose reasons the other members of the Court relevantly agreed, concluded that the sentencing judge had erred in relying on R v Robinson[9] as an indication that the permissible sentencing range “extended as high as 18 years”.[10]  On the re-exercise of the sentencing discretion, a sentence of 10 years imprisonment was imposed for each of the rape and incest counts.

[14] In S, the 20 year sentence imposed on the offender, after a plea of guilty, for maintaining a sexual relationship with his natural daughter over a four year period commencing when she was four years old, was reduced to 15 years.  The offender, who was 37 years old with no criminal history, subjected the child to numerous and repeated acts of indecency including: procuring her to masturbate him; the performance of oral sex by each on the other; penetration of her anus and vagina with his finger; attempted penetration of her vagina and anus with his penis; at least one act of sodomy; and one act of rape.  He developed the practice of paying the child money to suck his penis and swallow his ejaculate.  The child “was corrupted to such an extent that eventually she sought to repeat the performance of oral sex upon him in order to get money from him and sometimes in order to avoid the pain of interference with her vagina”.[11]

[15] The Court concluded that the sentence was manifestly excessive having regard to the early plea of guilty and the considerably lower sentences imposed in comparable matters.  One of the decisions referred to was Krieger, which is discussed below.

[16] Ruhland succeeded in having a head sentence of 17 years imprisonment, imposed on each of three counts of maintaining an unlawful sexual relationship with a child under the age of 16 with the aggravating circumstance of anal intercourse, reduced to 13 and a half years to recognise his pleas of guilty and cooperation with police.  Ruhland was convicted of in excess of 90 other sexual offences committed over a period of approximately five years.  The complainants were 12 boys aged between 10 and 15 years with whom Ruhland routinely engaged in massaging, mutual masturbation and mutual oral sex.  On occasions he paid the complainants for sexual favours or gave them gifts.  Some of the sexual relationships involved sodomy.

[17] Ruhland had prior convictions for similar offences and commenced reoffending soon after his release from prison in 1992.  The sentencing judge stated that, but for Ruhland’s pleas of guilty and cooperation with police, the head sentence would have been 20 years to reflect the overall criminality of Ruhland’s entrenched behaviour.

[18] White J, with whose reasons Byrne J agreed, observed that Ruhland’s offending was not as serious as the abuse of trust involving sexual depredation by parents and step‑parents upon vulnerable children within the family group.  The number of victims corrupted by Ruhland, however, was regarded as an aggravating circumstance.  Ruhland’s cooperation with police was his identification of the complainants who could lay complaints and give evidence against other offenders.

[19] Krieger’s application for leave to appeal against his head sentence of 15 years imprisonment, imposed for an offence of maintaining a sexual relationship with a child under 16 and in respect of other offences of unlawful carnal knowledge, sodomy, indecent dealing and indecent treatment of a child under 12, was refused.  Krieger’s offending occurred over a period of about four years commencing when the complainant girl was seven years of age and Krieger was 23.  Krieger, who was the complainant’s relation, corrupted her and had “regular [intercourse] with her on literally hundreds of occasions, oral sex – both ways – digital activity, exposure to pornographic material and sodomy”.  In the early stages of the conduct, the complainant suffered both vaginal and anal bleeding.  Thomas J observed that the head sentence was prima facie appropriate.

[20] In KAC, the applicant was between 43 and 44 years of age at the time of offending and had no relevant criminal history.  He applied unsuccessfully for leave to appeal against an overall sentence of 12 years imprisonment imposed after guilty pleas for offences which included the rape of his three year old niece over a four day period whilst the child was in his care and the rape of an eight year old complainant who was also left in his care.  The rape of the three year old child involved partial penile penetration of the child’s vagina.  The rape of the eight year old was penile and it was facilitated by the binding and gagging of the victim.  There was also less serious sexual offending against three other children.  Keane JA, with whose reasons the Chief Justice and Holmes JA agreed, held that the sentence was not outside the range of a sound exercise of the sentencing discretion.  Holmes JA remarked that the sentence was at the high end of the appropriate range.

[21] The 72 year old applicant with no criminal history and poor health in BBY was refused leave to appeal against sentences of 14 and a half years imprisonment for each of four counts of maintaining a sexual relationship with a child, 10 years imprisonment in respect of another two such offences and various lesser sentences imposed in respect of 35 other sexual offences.  The applicant was a school bus driver who used his position to sexually prey on nine complainant girls.  The duration of the maintaining offences and the ages of the complainants at their commencement were respectively: (A) five years and six years of age; (B) two years and fourteen years of age; (D) three years and eight years of age; (E) three years and eight years of age; (F) two years and ten years of age; and (I) 10 months and 14 years of age.  The maintaining offences typically involved: indecent touching of the complainants’ genitalia; digital vaginal penetration; oral sex including fellatio; and procuring the complainants to masturbate him.  The applicant penetrated the anus of three of his victims, ejaculated in the mouth of another and partially penetrated the vagina of a 14 year old complainant.  Atkinson J, with whose reasons Fraser JA and Margaret Wilson AJA agreed, observed that the applicant’s counsel properly accepted that a head sentence of 18 to 20 years imprisonment was the appropriate starting point.

[22] The applicant in this case submitted that his offending was worse than that in NK and Dickeson and that a sentence beyond 10 to 12 years was justified.  Robinson and R v CAP,[12] it was submitted, supported a head sentence of 18 to 20 years after a trial or late guilty plea where there was a maintaining offence or several complainants.

Comparable sentences relied on by the respondent

[23] The respondent placed particular reliance on Robinson, CAP, R v Flynn,[13] R v HAD[14] and MBJ.

[24] It is convenient to adopt Fraser JA’s analysis of Robinson in NK:[15]

“In R v Robinson, this Court set aside sentences of life imprisonment in respect of one count of maintaining a sexual relationship with a child under 16 years of age and two counts of rape and substituted concurrent sentences of 18 years imprisonment in respect of those offences …

In my respectful opinion R v Robinson is not a comparable decision. That offender was aged between 51 and 53 at the time of his offences. He was a friend of the parents of the complainant girl, who was between five and seven years old during the period of the maintaining offence. That offence included repeated penile penetration of the very young complainant during the course of a sexual relationship which extended over very many months: Keane JA, with whose reasons Williams and Muir JJA agreed, described those facts as ‘serious aggravating features of this case.’ Keane JA observed (in [36]) that Robinson had ‘cunningly won the trust of the complainant’s parents and then persistently and callously abused the complainant’. The very high degree of that offender’s callous persistence and the pain and distress he caused that complainant over the lengthy period of his serious sexual abuse was graphically illustrated by an audio recording (covertly made by police when searching for evidence of a different offence): see R v RAC [2008] QCA 185 at [30]. It was in that context that Keane JA observed in Robinson, in [40], that the authorities supported a sentence of imprisonment in a case of that kind of offending where the offender had the benefit of a plea of guilty, of ‘up to’ 18 years.”

[25] I would add to those observations that the central issue in Robinson was whether Robinson’s sentence of life imprisonment should be set aside.

[26] In CAP, the offender, who was 63 years old at the time of his appeal, was 34 at the commencement of the 10 year period of his offending against his daughter and others.  Most of the offending occurred over a period of four years.  There were four convictions for the rape of the offender’s daughter; the first when she was seven, the others when she was between 15 and 17.  The last rape resulted in pregnancy.  Three rapes were committed against an 11 year old niece, two were committed against a second niece, aged nine, and another against a third niece, aged between 16 and 17 years.  The rapes of the applicant’s daughter were accompanied by violence or the fear of violence and, in one such case, the complainant was hospitalised as a result of her injuries.  There were also four 14 year terms of imprisonment imposed for carnal knowledge against the order of nature.  One of those acts of anal penetration was committed against the offender’s daughter when she was aged between seven and 11 years.  The other acts of anal penetration were committed against his nieces, then aged nine and 11 years.  Some of the sexual offending took place in the presence of the offender’s de facto partner who did not report the offending because of fear for her own safety.

[27] The offender’s application for leave to appeal against sentences of 19 years for each of the four rapes of his daughter and 17 years for the rapes of his nieces was refused.

[28] Flynn is of little assistance.  Flynn’s application for leave to appeal against sentence concerned eight year terms of imprisonment imposed in respect of the taking of indecent photographs.  He did not appeal against 15 year terms imposed in respect of one count of maintaining a sexual relationship with the male complainant, aged between 10 and 12, who was in the offender’s care and one count of rape of the complainant.  The offender had been sentenced to a three year term of imprisonment in Victoria and to a four year term of imprisonment in Queensland for sexual offences against children.  He was described by Fraser JA, with whose reasons White JA and Mullins J agreed, as “a deviant, persistent, predatory sex offender [who] represented a serious danger to the community”.[16]

[29] In MBJ, the applicant, who was 21 years of age at the time of his offending, failed to obtain leave to appeal against a sentence of 13 years imprisonment imposed after a plea of guilty for the penile anal rape of his three year old nephew.  The complainant was heard to cry out in pain; blood and faeces were found on a bed in the applicant’s bedroom where the offending occurred and, on inspection by a paediatrician, blood was seen oozing from tears radiating from the complainant’s anal verge.

[30] The offender in HAD was convicted after a trial of one count of sodomy, eight counts of incest, two counts of rape and one count of indecent treatment of a child.  At the commencement of the trial, he pleaded guilty to a further 19 counts involving sexual abuse of young children.  The sodomy count, seven of the eight incest counts and the two rape counts concerned the offender’s natural daughter, who was about six when the sodomy occurred and 17 or 18 at the time of the other offences.  The offender was sentenced to: 13 years imprisonment for each rape; 10 years imprisonment for the counts of incest involving his daughter; eight years imprisonment for sodomy; nine years imprisonment for incest with his niece; eight years imprisonment for each of the offences of incest with his step-daughter; and eight years imprisonment for each of the two maintaining offences.

[31] The offender appealed against his convictions and sought leave to appeal against sentence only in respect of the rape sentences.  He was unsuccessful.  The circumstances of the rapes were unusually sordid.  On the first occasion, the offender coerced his pregnant daughter into permitting him to have intercourse with her by threatening to withhold money she needed to pay for the termination of her pregnancy.  The second rape occurred shortly after the termination of the pregnancy from which the complainant was still bleeding.  On that occasion, the offender forced himself on the resisting complainant asserting, in effect, that she had to repay him for his assistance in paying for the procedure.

Consideration

[32] Of the comparable sentences relied on by the respondent, Flynn is of little assistance and Robinson has its limitations as does HAD.  The offending in HAD occurred over a lengthy period and the sodomy and maintaining offences attracted eight year terms of imprisonment.  The complainant in respect of the sodomy offence was only six.  Because of the limited extent of the appeal and application for leave to appeal, little is known of the circumstances of the offences apart from the two rapes of the offender’s 17 or 18 year old daughter.

[33] CAP involved offending against the offender’s natural daughter and three nieces over a protracted period.  Considerable physical violence was involved.  The offender’s daughter had a child as a result of one rape.  The sentencing judge observed that the offences of rape against the offender’s own daughter “were at the highest level of depravity”.[17]  There was an indication that the offender would plead guilty only a week before the trial and, as Jones J remarked, with the concurrence of the other members of the Court, “the complainants were left to contemplate the giving of evidence at trial until a very late stage”.[18]

[34] MBJ is an example of a lengthy sentence imposed for a violent rape of a very young child in which the victim suffered considerable pain and physical injury.  Like another such case, R v Corr; ex parte A-G (Qld),[19] discussed in MBJ, it does not appear to me to have direct relevance to the sentences under consideration.

[35] Dickeson and NK appear to me to offer more useful comparisons for present purposes.  Dickeson had two victims, one aged six and the other eight.  The nature of the offending was generally similar to the applicant’s although engaged in over a much lengthier period.  Dickeson, however, unlike this applicant, did not have a parental role in respect of his victims.

[36] In NK, the offender was in the same position of trust as the applicant.  The offending was substantially similar in nature although limited to two incidents, not four as in the instant case (not including the matters the subject of counts 1 to 6).  There were two counts of rape, whereas in the instant case there were 10.  Although the victim in NK was only five, the applicant’s offending was against two children, one of whom was only six.

[37] Ruhland (13 and a half years), Krieger (15 years) and BBY (14 and a half years) also provide some more general guidance.  Ruhland and BBY involved grave offending against multiple victims over a lengthy period.  Krieger appeared not to have the benefit of any mitigating circumstances other than his age and the absence of a criminal history.  The offending in KAC (12 years) was at least as serious as the applicant’s.  It involved the rape of a three year old child and the violent rape of an eight year old.  It is of limited use for present purposes however, as like Krieger, the question decided was whether the sentence was manifestly excessive.

[38] It appears from the sentencing judge’s reasons that he commenced from a range of 18 to 20 years for the contemplated head sentence and arrived at the 15 year term by making allowance for the applicant’s early plea.  I am mindful of the breadth of the discretion afforded sentencing judges and that where an appeal against sentence is not based on a specific error of principle, but on grounds that the sentence is manifestly inadequate or excessive:[20]

“… appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.”

[39] In my respectful opinion, it may be deduced from the sentencing remarks and the level of the sentences imposed that the sentences were overly influenced by decisions on facts that were distinctly less comparable with the subject offending than the offending in the decisions relied on by the applicant.  This case is one in which it may be concluded that “there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”.[21]

[40] On any view of the matter, the applicant’s offending conduct was singularly abhorrent and deserving of condign punishment.  But most sexual offending against children will merit that description and deserve such punishment.  In attempting to determine where such offending sits in relation to comparable offending with a view to maintaining appropriate consistency in sentencing, no minute weighing of subject conduct against that in comparable cases is appropriate.[22]  In R v Dwyer, Keane JA observed:[23]

“An approach which seeks to grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process.”

[41] Rather, it is necessary to identify the features of the subject offending which are relevant to sentencing and to determine by reference to comparable cases where the subject offending sits within any range of sentences that is able to be discerned.[24]

[42] In this case, the applicant abused a position of trust on four separate occasions in a brief series of offending in one month by engaging in sexual conduct, including the penile vaginal penetration of a six year old girl.  He also engaged in oral sex with his victim and her brother, who was between four and eight years old during the relevant period, in the presence of each other.  The applicant recorded the conduct which involved himself and complainant B on a CCTV system’s hard drive.  He had relevant prior convictions for offences which were less serious than the subject offending.  The only material mitigating circumstance is the applicant’s early plea of guilty, but its benefit is diminished by the fact that the applicant’s conviction for all offences other than those the subject of counts 1 to 6 was rendered inevitable by the CCTV footage.  Furthermore, the applicant initially denied offending and only progressively expanded his admissions as the footage was revealed to him.

[43] The authorities reviewed above show that sentences of 15 years and over after a plea of guilty are not imposed in the absence of a circumstance such as substantial psychological or physical cruelty as in Robinson and CAP, or a protracted period of offending.

[44] I would order that: the application for leave to appeal be granted; the appeal be allowed, but only to the extent that the sentences of 15 years imprisonment imposed in respect of counts 20, 22, 24, 29, 36, 37, 39 and 45 be set aside and sentences of 13 years imprisonment be substituted therefor.

[45] FRASER JA:  I agree with the reasons for judgment of Muir JA and the orders proposed by his Honour.

[46] ATKINSON J:  I agree with the reasons for judgment of Muir JA and the orders proposed by his Honour.