R v CCR[2021] QCA 119

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  The applicant pleaded guilty in the District Court to two counts of maintaining a sexual relationship with a child, two counts of rape and 22 counts of the indecent treatment of a child.  There were four child complainants, and the offending occurred in a period between early 2003 and February 2016.  The applicant was sentenced to concurrent terms of imprisonment, the longest being a term of 14 years for one of the offences of maintaining a sexual relationship.  That offence, and the other offence of the same kind (for which a term of 10 years was imposed) were necessarily declared to have been serious violent offences according to s 161A(a) of the Penalties and Sentences Act 1992 (Qld).  A period of 683 days was declared as pre-sentence custody which had been served.
2. [2]
   The application is for leave to appeal against the sentence of 14 years, to the end that the sentence should be reduced to 10 and a half years.  The proposed appeal is upon two grounds, namely that the sentence is manifestly excessive and that the sentencing judge erred in giving inadequate weight to the applicant’s plea of guilty.

The facts

3. [3]
   The facts of the offending were not in dispute.  The applicant committed sexual offences against four girls who were the daughters of two of his de facto partners.
4. [4]
   The first group of offences were committed against S, who was the daughter of his first de facto partner.  During the relevant period S was aged between six and 11 years.  This offending involved rubbing S’s vagina, showing her pornographic images, asking her to touch his penis and masturbating to ejaculation while watching her showering.
5. [5]
   In 2011, the applicant began a relationship with another woman, who had four daughters, against three of whom offences were committed.  Two of those girls disclosed the offending to their mother, which caused her to end the relationship with the applicant in August 2017.  The subsequent investigation revealed that there had been offences against the third girl.  The applicant maintained a sexual relationship with one of these girls, O, from when she was aged nine until she was 13 years old.  This was the offence for which the 14 year term was imposed.  This course of conduct consisted of frequent penile rapes at different locations in their home.  The sentencing judge accepted that the frequency of the repeated rapes was such that there were “hundreds of examples” of penile penetration.  At the same time, the applicant maintained a sexual relationship with one of her sisters, B, from when B was eight years old until she was aged 11.  This offending involved repeated acts of trying to insert a vibrator into her vagina and her anus.  B was also forced to perform oral sex on the applicant, to masturbate him and to allow him to use the vibrator against her vagina.  The offending against the third sister, W, involved the indecent treatment of her when she was aged around 13 or 14 years.
6. [6]
   Two of the three sisters disclosed the offending against them to their mother, and with W, were taken to a police station, where they made their complaints.  From the police station, the mother then telephoned the applicant, who admitted to her that he had had sex “quite regularly” with O.  The applicant was apprehended by police the following day.

The judge’s sentencing remarks

7. [7]
   In his sentencing remarks, the judge recorded these facts and others, and said that the applicant’s conduct had had a catastrophic effect on two families.  The judge noted that the applicant had also acted aggressively towards the girls, and had used emotional blackmail.  His Honour referred to the abuse of trust involved in these cases, the applicant having been the girls’ step-father in each case.
8. [8]
   The applicant wrote a letter of apology to the two families, which was read to the judge in the sentencing hearing.  His Honour said that he was prepared to proceed on the basis that this was a genuine apology.
9. [9]
   The applicant’s counsel submitted to the sentencing judge that the appropriate term of imprisonment for the most serious offence (which the parties agreed should be that which is in question here) should be 10 years, derived from “the appropriate range” of 10 to 12 years and making allowance for his early plea of guilty.  However the judge said that he was not prepared to accept the submission that, absent the plea of guilty, this was the appropriate range.  Instead, his Honour accepted the submission of the prosecutor, that the sentence for this offence should be 14 years’ imprisonment, which allowed for his plea of guilty.  His Honour said but for the plea of guilty, the appropriate head sentence for this count would have been 16 years’ imprisonment.

The arguments in this Court

10. [10]
    The applicant’s argument accepts that, absent the applicant’s plea of guilty, a sentence of 16 years would have been open.  It is submitted that the sentence which was imposed was excessive because that starting point was insufficiently discounted on account of the plea.  It is emphasised that the reduction in the head sentence here was of the order of 12.5 per cent, whereas the general practice in this jurisdiction is to reduce the sentence by anything from 20 to 35 per cent.  The argument cites the statement by White JA in R v Ungvari that:^[1]

“As a matter of general practice in this jurisdiction, the one-third mark of the sentence of imprisonment is seen as an appropriate starting point to recognise a plea of guilty.”

It is submitted that there was nothing in the present case which made it exceptional, warranting what is said to have been such a modest discount for the applicant’s plea of guilty.  It was an early plea of guilty, showing a remorse which was demonstrated also by the applicant’s written apology.  From a starting point of 16 years, it is said that the outcome should have been a reduction of the head sentence to 10 and a half years.

11. [11]
    For the respondent, it is acknowledged that there is a practice in Queensland of discounting at least the non-parole period by one-third.  However, the respondent adds that this is not a hard and fast rule, and that in principle, a sentencing judge’s discretion ought not to be unduly confined by the practice.^[2]  It is submitted that, as Ann Lyons J said in this Court in R v Torrens:^[3]

“The authorities do not condone, in any aspect of sentencing, some arithmetical approach under which a deduction is made from a pre-determined range of sentences”.

12. [12]
    The respondent’s argument also cites this passage from the judgment of Gaudron, Gummow and Hayne JJ in Wong v The Queen:^[4]

“[76] … So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.

[77] The core of the difficulty lies in the complexity of the sentencing task.  A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender.  Very often there are competing and contradictory considerations.  What may mitigate the seriousness of one offence may aggravate the seriousness of another.  Yet from these the sentencing judge must distil an answer which reflects human behaviour in the time or monetary units of punishment.”

13. [13]
    The respondent’s argument cites a number of suggested yardsticks, which are said to demonstrate that the sentence imposed on the applicant is not unjust, namely R v Robinson,^[5] R v H,^[6] R v TS,^[7] R v Young; Ex parte Attorney-General (Qld)^[8] and R v KAI.^[9]

Consideration

14. [14]
    By s 13(1) of the Penalties and Sentences Act 1992 (Qld), a Court which is imposing a sentence on an offender who has pleaded guilty to an offence must take the guilty plea into account, and may reduce the sentence that it would have imposed had the offender not pleaded guilty.  A reduction of the sentence which would have been imposed may be made having regard to the time at which the offender pleaded guilty or informed the relevant law enforcement agency of their intention to plead guilty: s 13(2).  By s 13(4), a Court that does not, under sub-section (2), reduce the sentence imposed on an offender who pleaded guilty must state in open court that fact, and its reasons for not reducing the sentence.
15. [15]
    Section 13 does not require a sentencing judge, as this judge did, to state in the sentencing reasons the extent of the reduction for the plea of guilty.  However it does require a sentencing judge to state whether the sentence has been reduced for the plea of guilty.  A practical consequence of the requirements of s 13 is that the judge must form an opinion of the sentence which would have been imposed but for the plea of guilty.  This is not inconsistent with the passage in Wong v The Queen, which we have set out earlier, in a case not involving the application of a provision analogous to s 13.
16. [16]
    Section 13 does not prescribe the factors which are relevant to a judge’s decision to reduce a sentence on this ground.  The relevant considerations in this respect come from the common law.
17. [17]
    In Siganto v The Queen,^[10] it was said:

“[A] plea of guilty is ordinarily a matter to be taken into account in mitigation; first because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground the community is spared the expense of a contested trial.  The extent of the mitigation may vary depending on the circumstances of the case”.

The rationale for reducing a sentence for a plea of guilty depends not only upon remorse and acceptance of responsibility, but also the willingness to facilitate the course of justice which is evidenced by the plea.^[11]

18. [18]
    As to the extent of a reduction of a sentence on this basis, it is true that a reduction which is frequently given is by a reduction of the non-parole period by a third.^[12]  The frequent application of that degree of discount reflects the value which is ordinarily attributed to the mitigating factors which are the basis for this rule.  In each case, however, the extent of the reduction will be affected by a number of factors, such as the specific circumstances of the offender.
19. [19]
    In the present case, the applicant will have to serve at least 80 per cent of his sentence, this being a declared serious violent offence.  A reduction of the term will necessarily affect the non-parole period to the same extent, expressed as a proportion of what would have been the sentence.  The reduction here was to the extent of one-eighth.  A larger reduction might have been employed, but this level of reduction is not unprecedented.  For example, in R v BAY,^[13] this Court re-sentenced an offender by imposing a term of 10 years where the appropriate sentence, absent the plea, was “about” 12 years.^[14]  Of course that was still proportionately a higher reduction than in the present case, but the difference does not matter for present purposes.
20. [20]
    The sentencing judge is not said to have made an identified error of principle.  The complaint is that the plea of guilty was not given sufficient weight.  In R v Coutts,^[15] Fraser JA said:

“[4] Otherwise ground 2 relies upon a contention that the sentencing judge placed “insufficient weight” on each of the three matters mentioned in ground 2. That is not an allegation that the sentencing judge acted upon a wrong principle, took into account extraneous or irrelevant matters, mistook the facts, or failed to take into account a material consideration: cf House v The King (1936) 55 CLR 499 at 505. The weight to be given to relevant considerations is a matter for the sentencing judge in the exercise of the sentencing discretion. This Court has decided that, in a sentence appeal of this kind, a ground of appeal which contends that a sentencing judge placed insufficient weight upon a factor which the sentencing judge took into account does not justify the Court in setting aside the sentence: R v Major; ex parte A-G (Qld) [2011] QCA 210, R v Tout [2012] QCA 296 at [7] and the decisions there cited; see also R v Buckman [2016] QCA 176 at [8]. This aspect of ground 2 was the focus of the applicant’s arguments, but in my respectful opinion it is not a viable ground of appeal.”

21. [21]
    For the applicant it is submitted that this ground of appeal can be distinguished from what was said in that passage, because in this case, the reduction in the sentence was expressly quantified, that reduction is without justification and it is substantially less than that which is the norm for pleas of guilty.  However those circumstances do not provide a basis for displacing what was said in Coutts.
22. [22]
    Consequently, the applicant’s arguments must be considered by reference to the alternative ground, namely that the sentence is manifestly excessive.  In the consideration of that ground, the applicant’s plea of guilty has an obvious importance.  The sentence is to be considered by the application of the rule that, absent any reason for not doing so, the sentence was to be reduced for the applicant’s remorse, acceptance of responsibility, and willingness to facilitate the course of justice, as evidenced by his plea of guilty.
23. [23]
    We go then to the cases cited in the respondent’s argument, of which the first is R v Robinson, where this Court set aside a sentence of life imprisonment, and substituted a term of 18 years, in relation to an offence of maintaining a sexual relationship which involved the penile penetration, over “many months”, of a seven year old girl.  The applicant in that case was convicted after a trial.  Nevertheless, it was said that decisions prior to that case would support a sentence of imprisonment, in a case such as that one but where the offender had the benefit of a plea of guilty, of “up to 18 years”.^[16]
24. [24]
    In R v H, this Court refused an application for leave to appeal against a sentence of 17 years.  That applicant had pleaded guilty to offending against three children over a period of 16 years, involving offences of rape and sodomy, including against his own daughter from when she was aged between five to 15 years.
25. [25]
    In R v TS, Mackenzie AJA analysed a number of previous cases, “some of which were pleas of guilty and some of which involved a late plea or a plea of not guilty” which he said revealed a “diversity of outcomes, but generally between 10 to 15 years.”^[17]
26. [26]
    In R v Young; Ex parte Attorney-General (Qld), de Jersey CJ said that “[f]or multiple violent rapes by a mature man committed upon a girl as young as 12, over a period as long as nine months, amounting to maintaining, even allowing for the pleas of guilty, imprisonment [in] the order of 10 to 12 years was … warranted.”^[18]
27. [27]
    In R v KAI, the applicant pleaded guilty to one count of maintaining a sexual relationship with a child, three counts of indecent dealing, two counts of unlawful carnal knowledge and eight counts of incest.  The complainant girl was aged nine years when the period of the offending commenced, and that period extended over six years.  He was her step-father.  The girl gave birth to a baby of which he was the father.  This Court refused leave to appeal against the sentence in that case of 10 years’ imprisonment.  Williams JA said that a perusal of prior decisions indicated that there was a “broad range for offences of this type from seven to 13 years with some exceptional cases justifying sentences in excess of 13 years”.^[19]  He said that the cases would support a head sentence of 12 years for that offending absent the plea of guilty, and with a discounting to 10 years for the plea.^[20]
28. [28]
    In our conclusion, although this was a heavy sentence, it is not demonstrated to be so excessive that it must be concluded that there was an error of principle or that the sentence imposed is “unreasonable or plainly unjust”.^[21]  This was an especially serious case, involving four complainants, with offending extending over a period of 13 years, accompanied by aggressive and blackmailing conduct and involving an abuse of trust.

Order

29. [29]
    We would order that the application for leave to appeal be refused.