R v Crothers (a pseudonym)[2020] QCA 268

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P: The applicant pleaded guilty to one count of maintaining a sexual relationship with a child, one count of common assault and nine counts of rape. All of the offences were domestic violence offences. The maintaining offence was committed between 1March 2010 and 10February 2016. The assault was committed during the same period and between August 2014 and June 2015. The rapes were perpetrated in September and November 2016. The victim in every case was the applicant’s step-daughter. When the offending began the step-daughter was only 10years old. When the applicant raped his step-daughter she was 16years old. The applicant is 22years older than his step-daughter.
2. [2]
   The maintaining offence persisted over six years. At first it involved the applicant’s forcing the girl to suck his penis. This soon escalated to his putting his penis into her vagina and anus. The complainant said that this happened about once a week. Each time would begin with her having to suck the applicant’s penis and it would end with his raping her vaginally and anally. When the complainant turned 12 or 13 the applicant said that, as she was getting older, they could have sex more frequently. Afterwards, he would rape her vaginally and anally almost every day. He persisted in his sexual offences, including rape, until the complainant turned 16. These acts constituted the maintaining offence.
3. [3]
   When the complainant was 15 years old she gave birth to a boy who was the applicant’s son. The applicant told the complainant that she needed to “kill it”. She told him that an abortion was out of the question because she was, by then, five months pregnant. The defendant said that there were always ways to kill it. He pushed against the complainant’s stomach with his fists until it hurt. He slapped her stomach a few times. This was the assault count.
4. [4]
   On 16 September 2016, when the complainant was 16 years old, police attended the applicant’s home on an unrelated matter. The applicant thought that the complainant had brought about the visit. He did not believe her denials and said that she had to “suck his dick”. When she refused he said that if she did not comply he would put his penis into her anus. To avoid this, the complainant sucked the applicant’s penis. She tried to avoid his ejaculate but he pulled her head back towards his penis and ejaculated onto her face and into her mouth. This rape was count 3.
5. [5]
   On 24 November 2016 the complainant was sitting on a couch. The applicant pulled her forward on the couch and forced her legs into the air. He then inserted his penis into her vagina causing her pain. This was count 4. He then pulled her into a bedroom where he grabbed her by the hair and forced her mouth open and inserted his penis. He forced the complainant to suck his penis. This was count 5. In doing this the applicant pulled out some of her hair. When the complainant tried to leave the applicant penetrated her once again with his penis. This was count 6.
6. [6]
   On 26 November 2016, in the early morning, the applicant got into bed with the complainant and took off her clothes. He penetrated her vagina with his penis. The complainant complained about the pain and said that she was bleeding. The applicant said that he did not care and that it wasn’t the worst thing that she had been through with him. He told her that this would not be the last time and that he would “get her” later. This was count 7.
7. [7]
   Later on the same day the applicant forced the complainant into a bedroom and tried to force his penis into her anus. When she screamed the applicant covered her mouth. He took some Vaseline and rubbed it onto his penis and, thus enabled, he raped her anally. This was count 8. He then raped her vaginally. This was count 9. He then forced the complainant to her knees and put his penis into her mouth and ejaculated. This was count 10.
8. [8]
   Later that afternoon, as the complainant was watching TV with her infant son, the defendant lifted the baby from her and told her to “bounce on his dick” because he didn’t “finish” earlier. The applicant then penetrated the complainant’s vagina with his fingers. This was count 11.
9. [9]
   The complainant fled her home on the same day and complained to police on 20December 2016.
10. [10]
    In her victim impact statement the complainant said that the offences cost her a normal childhood. She is now a single mother having to support a child. Not surprisingly, she suffers anxiety and depression. Her depression “gets really bad most times” when she “just [wants] to disappear and never come back”. She has self-harming thoughts. She is fearful when shopping. She is frightened that a man might grab her and take her away. She awakes most days angry and upset. She finds life difficult with an infant son to support. She is unable to get a job and finds it hard to live on Centrelink payments. In short, the applicant’s crimes have wrecked the complainant’s life.
11. [11]
    The applicant pleaded guilty to these offences but, as his counsel acknowledged, his pleas of guilty were not early but they can be regarded as not untimely because they were made just before the pre-recording of evidence was to begin. He has a tertiary education and holds an engineering certificate from TAFE. His work history is unremarkable except that the applicant ceased working after suffering an injury to his hand.
12. [12]
    The applicant underwent a psychological evaluation. He claimed to have no, or little, recollection of his offending. He was assessed as having an alcohol dependency, poor coping strategies and an underlying sexual deviance. He was also assessed as “psychologically disassociating from the extent and nature of his offences”. He was said to be in the “very medium risk range” for repeated sexual offending. The psychologist found that the applicant “displayed a lack of remorse and insight into the extent and nature of his offending” but that, “[a]lternatively, he just was not ready psychologically to face the nature of his offences”. The applicant did not agree to be interviewed by police.
13. [13]
    During argument RichardsDCJ observed that the maintaining offence was constituted by acts done until the complainant was 16years old but that the rapes committed afterwards, which were charged as nine separate offences, were “serious rapes which, in themselves, would probably call for eight or nine years”. In sentencing the applicant, RichardsDCJ evidently rejected the applicant’s counsel’s submission that all of the offending should be regarded as a single continuous course of conduct. Her Honour said:

“The defence submit that the appropriate sentence is 12 years for the maintaining offence and that that sentence would reflect the overall criminality for all of the offending. MrRobson submitted that there should be no additional punishment for the rapes committed after the maintaining period, as it is a continuous period of offending. I accept that there is little time lapse in the maintaining and the later rape offences. However, in my view, there is an escalation in the violence for the rape offences in 2016 which, in my view, call for additional punishment.”

14. [14]
    Her Honour also remarked that the applicant’s persistence in offending against his step-daughter after she became pregnant to him and his persistent rape of her from the age of 10 demonstrated that these offences were “brazen and violent”. Her Honour also noted the escalation in the use of actual violence and manipulation, which also took the form of physical punishment to control and humiliate his victim. Her Honour said that the final offences were “callous, violent, persistent” and committed “through protest, committed in front of a small child” and “caused bleeding and pain”. Her Honour found that these offences were serious acts of violence calling for cumulative sentences. Her Honour took note that the pleas of guilty were “timely”. Her Honour also referred to the applicant’s conviction in 2005 for offences involving violence. These were assaults occasioning bodily harm including one such offence committed while armed and in company. The applicant was sentenced to 18months’ imprisonment suspended after four months.
15. [15]
    RichardsDCJ sentenced the applicant to 12 years’ imprisonment for the maintaining offence and to a concurrent term of six months’ imprisonment on the assault count. Her Honour then sentenced the applicant to 12 months’ imprisonment on counts3 and 11and three years’ imprisonment on each of counts 4 to 10. These latter sentences were concurrent with each other but cumulative upon the sentence imposed for the maintaining offence. The result was a total sentence of 15 years.
16. [16]
    The applicant does not criticise any of the learned judge’s findings or her Honour’s sentencing approach. He submits only that the total sentence is manifestly excessive when regard is had to “a comparison between the offending engaged in by the appellant and cases of great seriousness heard in the Court of Appeal”.^[1] In this connection, the applicant cited R v P; Ex parte Attorney-General,^[2] R v H,^[3] R v SAG,^[4] R v Robinson,^[5] R v Ruhland,^[6] R v PAN,^[7] and R v BBY.^[8] He submits that his offending was less serious than that which was under consideration in these cases. He also submits that RichardsDCJ made no allowance for the applicant’s pleas of guilty.
17. [17]
    The latter point can be disposed of at once. The applicant’s pleas were of some utility in negating the need for a trial. However, the degree of weight to be given to that result of the plea is a matter for a sentencing judge’s discretion and is not to be second-guessed by an appellate court. In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the sentencing judge and not the Court of Appeal to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising a statutory power.^[9] The applicant submitted that the effect of authorities of this court is that a plea of guilty “warrants a significant reduction of the head sentence, especially where it indicates remorse”.^[10] The Penalties and Sentences Act 1992 (Qld) provides that, in imposing a sentence upon an offender who has pleaded guilty, the court must take the plea into account and may reduce the sentence that it would have imposed had the offender not pleaded guilty. When a guilty plea is evidence of remorse, or is consistent with other evidence of remorse, it would be unusual not to give effect to this mitigating factor by way of a reduction in sentence and, depending upon the circumstances of a case, perhaps a significant reduction. However, as this court said in R v BAY,^[11] the weight to be given to a guilty plea depends upon the nature of the crime, the time at which the plea was indicated or entered and the extent of any cooperation with prosecution authorities. In this case it could not be contended that any of these factors could be accorded much value. The only factor that existed was the avoidance of a trial, for what that was worth in a case in which the Crown could prove that a 15 year old girl bore the applicant’s child.
18. [18]
    In any event, while s13 of the Act requires a guilty plea to be taken into account, the weight to be given to such a plea when sentencing an offender who has committed sexual offences against children is affected by the terms of s9(6) of the Act which requires a sentencing judge to “have regard primarily to” the factors there listed. The first four of these factors relate to the situation of the victim of the sexual offence and three relate to the situation of potential future victims. These were the matters to which RichardsDCJ rightly gave the greatest attention and weight. The remaining factors of real consequence mentioned in s9(6) which relate to the applicant are his prospects of rehabilitation, his remorse or lack of remorse and any psychiatric reports relating to him. For reasons that should be obvious, none of these factors are worth much in this case.
19. [19]
    The applicant’s reliance upon similar cases is misguided. This was an extremely serious case of persistent shocking offending. Each of the offences carried amaximum penalty of life imprisonment. As MsCupina, who appeared for the respondent, submitted, it is necessary to show more than a difference, even a marked difference, from sentences in other cases. When it is contended that it must be inferred that the sentencing discretion miscarried, what is required is a demonstration that the sentence that has been imposed is so unjust that it must be the consequence of a hidden error. The applicant has failed to show any arguable error. The sentences that were imposed were consistent even with a case decided almost 20 years ago, RvP^[12] as well as the latest case upon which the applicant relies, namely R v PAN.^[13]
20. [20]
    The application should be refused.
21. [21]
    FRASER JA: I agree with the reasons for judgment of Sofronoff P and the order proposed by his Honour.
22. [22]
    BRADLEY J: For the reasons set out by the President, I agree that the application should be refused.