R v OV[2021] QCA 228

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  The applicant pleaded guilty to two counts of maintaining a sexual relationship with a child between 11 April and 26 November 2018 and one count of making child exploitation material between 11 April and 31 August 2018.  She was sentenced to concurrent terms of ten years’ imprisonment upon each of the maintaining counts and three years’ imprisonment upon the third count.  The convictions on the maintaining counts were declared to be convictions of serious violent offences, with the consequence that the applicant will be eligible for parole after serving eight years’ imprisonment.  A period of 373 days the applicant served in pre-sentence custody was declared to be time served under the sentences.
2. [2]
   The applicant applies for leave to appeal against sentence upon the grounds that the sentencing judge had regard to an irrelevant consideration and the sentences are manifestly excessive.  The applicant also seeks leave to adduce additional evidence in the application.
3. [3]
   The applicant was sentenced with reference to a statement of facts that was agreed except in relation to some matters that are not of much note.  She lived in the Philippines with her daughters “A” (who was 7-8 at the relevant time) and “B” (who was 10 at the relevant time).  The applicant came into contact with Mr VTS, a New Zealand national who lived in Queensland.  They became engaged to be married when Mr VTS went to the Philippines in November and December 2015 and met the applicant and her daughters.  After Mr VTS returned to Australia he lodged a visa application on behalf of the applicant.  The applicant moved with her daughters to Australia on 12 April 2018.  From that day until Mr VTS was arrested on 25 November 2018 the applicant and her daughters stayed with Mr VTS in homes he owned in Brisbane.  Mr VTS died in custody.
4. [4]
   On an occasion before the applicant and her daughters left the Philippines for Australia, the applicant told her daughters to remove their clothing.  She said “Dad” had asked her to take pictures of their vaginas.  The applicant took photographs of her naked daughters.  The applicant also took a photograph of herself digitally penetrating A’s vagina.  That digital penetration hurt A.  The applicant did the same thing to B, who was scared.  The applicant sent the photographs to Mr VTS.  Counsel for the applicant submitted to the sentencing judge, that the applicant’s instructions were that those photographs were taken in that manner at Mr VTS’s direction and specific request.  Counsel acknowledged that the applicant was then physically distant from Mr VTS.  The evidence about those photographs was not the subject of any charge.  That evidence was admitted as evidence relating to the applicant’s knowledge about Mr VTS before she came to Australia.  It was also an admitted fact that just before the applicant moved to Australia Mr VTS told her that he was attracted to little girls.
5. [5]
   On the first night after the applicant and her daughters arrived in Australia the applicant and Mr VTS had sexual intercourse in front of B, who was in the bed with them.  At the applicant’s request B let Mr VTS touch her vagina with his hand.  At the same time the applicant kissed Mr VTS.  During the marriage, Mr VTS spent alternate weeks away at a worksite, leaving for work and returning from work on Wednesdays.  When he returned from work the applicant’s daughters were required to sleep in his bed with him and the applicant.  Mr VTS regularly committed sexual offences against A and B.  The applicant sometimes participated actively in Mr VTS’s conduct.  On some occasions when she was not an active participant she recorded his conduct on a mobile phone.
6. [6]
   The maintaining offences charged against the applicant were based upon her knowing participation in conduct of the following descriptions.  Mr VTS kissed A and B.  The applicant and Mr VTS digitally penetrated A’s vagina and B’s vagina.  The applicant and Mr VTS performed oral sex on A and B.  The applicant cooperated whilst Mr VTS made A put her hand in the applicant’s vagina.  The applicant watched her daughters perform oral sex on Mr VTS until he ejaculated in their mouths.  The applicant watched whilst Mr VTS committed unprotected penile penetration of A’s vagina and B’s vagina to ejaculation.  The applicant and Mr VTS had sexual intercourse in front of A and B.  On occasions the applicant recorded Mr VTS sexually assaulting A and B.  A told police the applicant showed her recordings the applicant had taken of Mr VTS doing “naughty stuff”.  On occasion the applicant took sexualised photographs of her daughters and sent them to Mr VTS whilst he was away working.  The applicant told police that on every occasion indecent acts occurred Mr VTS at least attempted penile penetration of her daughters’ vaginas.
7. [7]
   The applicant knew B was afraid of Mr VTS and A cried when Mr VTS sexually offended against her.  A told police she did those things with “Dad” because the applicant made her.  The applicant told A and B that Mr VTS was “already like that”, they had to listen to whatever he said, and if they did not do the things “Dad” wanted they would all be sent home to the Philippines.  Mr VTS had told the applicant he would send her and the children back to the Philippines.
8. [8]
   When Mr VTS was arrested on 25 November 2018, the applicant initially denied any knowledge of sexual offending involving her daughters and Mr VTS.  After Mr VTS made disclosures to an undercover police officer the applicant was interviewed by police on 27 November 2018 and arrested.  She made many admissions to police, including that she licked her daughters’ vaginas because Mr VTS forced her to do so, he had never been violent towards her or threatened her or her children with violence, and he had forced her to participate by saying “please”.
9. [9]
   About a week before the sentence hearing, a psychologist, Dr Palk, prepared a pre-sentence report.  The sentencing judge referred to the applicant’s family and social history described in that report.  The applicant had a normal and happy childhood in the Philippines.  She came from a poor family but had been raised by loving and supporting parents.  Her mother had a general store when younger, and her father was employed in construction.  The applicant completed high school with good grades.  After becoming a single parent, she discontinued her studies in a computer course and became a shop keeper.  The applicant went to work in Lebanon to provide financial support for her parents.  She returned to the Philippines.  Because the applicant needed to support her children and her family, she worked as a domestic help in Kuwait shortly after having met Mr VTS online.  The applicant “felt an obligation to go to Australia as Mr VTS had already paid for the tickets, the visa application and medical treatment for [one of the applicant’s daughters]”.  She worked as a housekeeper at a hotel while she was in Australia until she was arrested.
10. [10]
    During the sentence hearing the sentencing judge enquired whether the applicant came from a very poor family or from the middle class.  The applicant’s counsel responded that she did not have specific instructions that they were particularly living in poverty but that there was certainly the difficulty with employment and being able to provide for the family in the Philippines; counsel also invited the sentencing judge to take into account that the applicant had been required to travel overseas to work to be able to provide for her family.  In the sentencing remarks, the sentencing judge referred to the applicant having stated that she “came from a poor family”, noted it was not suggested that the applicant’s family were “in extreme poverty in the Philippines” and referred to the evidence that the applicant worked in Lebanon and Kuwait because she needed money to support her children and her family.
11. [11]
    Dr Palk recorded statements by the applicant to him to the following effect.  She was aware of Mr VTS’s liking for little girls before she and her children left the Philippines in 2018, but at that time she believed Mr VTS loved her and would not harm her children.  She had concerns about Mr VTS’s interest in little girls but thought he was “a good person, very normal, kind and considerate.”  After the applicant arrived in Australia with her daughters, Mr VTS subjected her to verbal, emotional, and financial abuse.  He assaulted her and forced her to partake in some sexual acts to which she did not consent.  In Dr Palk’s opinion, she became fearful and concerned about the safety of her children.  She appeared to have felt trapped and isolated, with no friends or support in Australia.  She felt compelled to allow Mr VTS to sexually abuse her daughters out of fear of reprisal to herself and her daughters.  The applicant “felt under some pressure to remain in Australia as she believed it was a still better alternative for her children than returning to the poverty of the Philippines” and “Remaining in Australia also provided the opportunity to support her family in the Philippines”.
12. [12]
    Dr Palk diagnosed the applicant as having a post-traumatic stress disorder.  He summarised what in his opinion were the “key attributing factors” for the applicant’s offending; it was directly related to the applicant’s “meek and passive personality; feelings of entrapment; a belief she could not escape; fear of retribution and severe punishment to her and her children if she did not co-operate with Mr VTS; feelings of isolation and alienation; and a desire to provide a better life for her children.”
13. [13]
    Dr Palk’s report records that when he questioned the applicant about any possible sexual abuse of her daughters that could have occurred in the Philippines, the applicant “was adamant that neither Mr VTS nor herself abused her daughters before coming to Australia”.  The report contains no reference to the admitted fact that whilst the applicant was in the Philippines and Mr VTS was not present, at his request she took and sent to him photographs of her naked children, one of which showed the applicant digitally penetrating A’s vagina.
14. [14]
    At the sentence hearing counsel for the applicant endorsed the prosecutor’s submission to the sentencing judge that, in a discussion with counsel on the morning of the hearing, Dr Palk stated that his report was premised on the basis that the applicant’s involvement and real knowledge only commenced in Australia.  Dr Palk stated that the information about the applicant’s conduct in the Philippines changed her level of culpability; Dr Palk nevertheless maintained that the applicant possessed “a level of naivety that was promoting a belief that she could keep her daughters safe”, and “there was an overwhelming sense of entrapment; but that [the applicant’s] compliance was principally motivated by a desire to provide for her children; that is, a better life in Australia, and motivated to have the girls and her reach Australia and to support her family in the Philippines”.
15. [15]
    In the sentencing remarks, the sentencing judge observed that the applicant’s claims recorded in Dr Palk’s report about her being pressured were somewhat undermined by her conduct in sending the photographs from the Philippines.  The sentencing judge placed weight on Dr Palk’s report but approached it with some caution.  The sentencing judge observed that he placed caution upon statements by the applicant that she was concerned about being more seriously harmed, having regard to what the applicant had said in her police interview and what Dr Palk had told counsel after he was informed about the full details.  The sentencing judge did not accept the applicant thought Mr VTS was kind and considerate before coming to Australia.  The sentencing judge found the applicant voluntarily involved herself in the sexual activity to attempt to stay in Australia.  She was actively involved in some of Mr VTS’s sexual abuse of A and B.  The sentencing judge did not accept the applicant had no choice but to obey the wishes of her husband.  There was nothing stopping her from returning to the Philippines.
16. [16]
    The sentencing judge otherwise accepted much of Dr Palk’s report.  Mr VTS targeted the applicant because she was vulnerable and had young children.  He charmed her with promises of a better lifestyle in Australia.  The applicant was passive, meek and mild.  She was persuaded by Mr VTS. Mr VTS was dominating in Australia.  The applicant became isolated.  The sentencing judge expressed some doubts about the applicant being fearful but also observed that she lived in a state of fear.  The sentencing judge accepted the applicant felt trapped in a horrible situation, and isolated, with no friends or support in Australia.  There was some emotional and financial abuse.  The applicant felt compelled to allow Mr VTS to sexually abuse her daughters.  The sentencing judge accepted there was psychological trauma at the time the applicant became distressed, and there was some depression, anxiety, withdrawal and alienation.  The post-traumatic stress disorder diagnosed by Dr Palk was not disputed.
17. [17]
    It was submitted for the applicant that her involvement was not for her own sexual gratification.  That was disputed by the Crown, particularly in relation to the fist in the vagina incident.  The sentencing judge observed it was hard to know whether the applicant participated for her own sexual gratification and found it did not matter much because of the applicant’s conduct.
18. [18]
    The sentencing judge referred to the very serious nature of what the applicant had done to her own children.  It was concerning that before the move to Australia the applicant was aware that Mr VTS was attracted to little girls.  The applicant had failed to act as the protector of her young children.  She was a party to a number of the sexual acts but was involved in others.  There were two victims.  There was emotional blackmail of her daughters.  The sentencing judge referred to victim impact statements given by the applicant’s children and accepted that the applicant’s offending had a big effect on her children.  The sentencing judge considered deterrent penalties were necessary, particularly bearing in mind that it was not uncommon for Australian citizens to travel to the Philippines to have sex with children, and in this case photos were sent from the Philippines and they were brought back and used for sexual purposes with the applicant’s consent.
19. [19]
    In circumstances in which the minimum custodial period was fixed by statute at 80 per cent of the period of imprisonment, the sentencing judge adopted a conventional sentencing methodology of reducing a notional head sentence to take into account mitigating factors.  The sentencing judge considered that after a trial the starting point for the sentence (the notional sentence) was at least 13 years’ imprisonment.
20. [20]
    The applicant was between 31 and 32 when she offended and 33 when sentenced.  She has no prior criminal history.  The sentencing judge took into account by way of a reduction of the penalties that otherwise would have been imposed the applicant’s pleas of guilty, accepting that they demonstrated that the applicant had co-operated in the administration of justice, saved the costs of a trial, and saved the girls from being cross-examined.  The applicant was remorseful and there was some co-operation which followed an earlier denial of offending and refusal to participate in an interview.  The applicant was very ashamed and sorry for her offences.  She accepted she had played a part in contributing to the abuse of her children.  There was a low risk of the applicant reoffending.  The sentencing judge accepted that the applicant had been in protective custody and was vulnerable there.  It was inevitable that the applicant would be deported from Australia after she completed her time in jail.
21. [21]
    The first error for which the applicant contends is that the sentencing judge took into account an irrelevant consideration that the objective of sentencing the applicant was to deter Australians who travel to the Philippines to sexually prey upon vulnerable children.  The argument is based upon the sentencing judge’s remarks described in the last sentence of [18] of these reasons.  It is submitted for the applicant that the applicant’s sentence was not an appropriate vehicle to generally deter Australians from travelling to the Philippines to sexually prey upon vulnerable children; rather, the applicant was herself was a vulnerable person who had been groomed and subsequently taken advantage of by Mr VTS.  The remarks upon which this ground of appeal is based could not sensibly be construed in their context as conveying that the sentence was designed to deter those who had travelled to the Philippines to have sex with children in that country.  Upon the agreed facts and the findings made by the sentencing judge, the applicant had voluntarily participated in Mr VTS’s sexual abuse of her young children in Australia after Mr VTS had travelled to the Philippines and persuaded the applicant to move with her children to Australia despite her knowing that Mr VTS was attracted to little girls.  A deterrent sentence was necessary in those circumstances.  In so far as the applicant’s argument otherwise focuses upon the ways in which she was vulnerable to the malign influence of Mr VTS, that was taken into account by the sentencing judge.
22. [22]
    In relation to the ground of appeal that the sentences are manifestly excessive, it is submitted for the applicant that the appropriate sentence is one of nine years’ imprisonment with parole eligibility after five years.
23. [23]
    Counsel for the applicant argues that upon the evidence Mr VTS identified the applicant as a weak target, he exploited his comparatively strong financial position to gain the trust and gratitude of the applicant and her family, having lured the applicant to Australia he subjected her to threats and physical abuse which, together with her meek nature and post-traumatic stress disorder contributed to the applicant offending, and in consequence the applicant had found herself feeling as though she were trapped and stranded in a foreign country with no option available to her but to participate in Mr VTS’s offending.  Counsel submits that these matters mitigated the applicant’s moral culpability and reduced any relevance of specific deterrence.
24. [24]
    The diagnosis of the applicant’s mental health condition was not in issue and the sentencing judge also accepted that the applicant had a meek nature.  It is necessary, however, also to bear in mind the unchallenged findings by the sentencing judge described in [15] of these reasons.  In any case, whilst general deterrence was an important consideration for this sentence, specific deterrence did not loom large; upon the offending being detected the applicant ceased to have access to her children, the sentencing judge found that there was a low risk that the applicant would reoffend, and it was inevitable that she would be deported after serving the custodial part of her sentence.
25. [25]
    The sentencing judge appreciated that the applicant risked being disadvantaged by being deported after she completed her time in custody and took into account that her deportation was inevitable, but counsel for the applicant argues that the sentence should be mitigated also upon the additional basis that the inevitable deportation of the applicant will permanently separate the applicant from her daughters and render her period of imprisonment more burdensome.  That argument cannot be accepted.  The separation of the applicant from her daughters and such burden as that imposes upon the applicant during her imprisonment are inevitable consequences of the detection of the applicant’s offences and the consequential term of imprisonment.  The future deportation of the applicant cannot be regarded as rendering the applicant’s imprisonment more burdensome on account of her separation from her daughters.  It is also mere speculation to assume that there might be a future reunion between the applicant and her daughters that might be rendered unachievable by the applicant’s deportation.  Speculative possibilities of that character are not be taken into account in mitigation of a sentence.^[1]
26. [26]
    In R v Leslie (a pseudonym),^[2] the offender pleaded guilty as a party to sexual offending by her husband against their two daughters aged between 10 and 13 at various times within a period spanning about four years.  The offender’s husband committed seven counts of rape, three counts of indecent treatment of a child under 16 who is a lineal descendant, and one count of indecent treatment of a child under 16 who is a lineal decedent, all of which were domestic violence offences.  Some of those counts reflected particulars the offender herself supplied to the police.  The offender lived in fear of her husband and was the subject of violence at his hands.  The conduct which rendered the offender liable was encouragement of her husband by her presence, accompanying one of the girls into a bathroom where the husband was waiting and undressing when the husband told them to undress, bringing one of her daughters to her husband knowing of his intentions and afterwards taking the complainant for a shower at her husband’s direction, and on another occasion following her husband’s direction to bring one of the daughters to him and closing the bedroom door when directed.  After holding that the effective sentence in that case of nine years’ imprisonment with parole eligibility after four years was “well supported” by cases such as R v B and P,^[3] R v EC and RC; ex parte Attorney-General (Qld),^[4] R v OM^[5] and R v MGB & MBH,^[6] Davis J (the President and Mullins JA agreeing) observed that a sentence involving a serious violent offence declaration or an order delaying eligibility for parole may have been difficult to upset on appeal.
27. [27]
    The applicant’s counsel submitted that there may have been more occasions of penile/vaginal rape in R v Leslie.  If so, the applicant’s offences nevertheless may reasonably be regarded as meriting a more severe sentence, particularly having regard to the circumstances that by the applicant’s markedly more intensive participation in Mr VTS’s offending she committed two offences of maintaining an unlawful sexual relationship during the whole charged periods of seven months, she recorded some of that offending whilst it was occurring, the sentencing judge found she voluntarily participated in the offending to attempt to stay in Australia, and the applicant’s cooperation with the authorities was of a lower order than the cooperation of the offender in Leslie.  The sentence imposed upon the applicant accords with the guidance that may be derived from R v Leslie and the sentencing decisions referred to in that case.
28. [28]
    The evidence the applicant seeks leave to adduce is an affidavit affirmed by the applicant on 6 May 2021, more than 17 months after the sentence hearing.  In that affidavit the applicant deposes that her childhood was “difficult due to the poverty”, her parents had “low paying jobs”, and sometimes struggled to put food on the table.  When she was unable to work and her family relied upon her father’s wage, they were “impoverished”.  One day they went without food.  The applicant expands upon why she obtained employment in Lebanon and Kuwait.  She refers to having been treated as a slave while she worked in Kuwait.  She saved money while she worked in Lebanon.  She sent her earnings home to her family when she worked in Kuwait.  Because the applicant could not stand it in Kuwait any longer she accepted an offer of money from Mr VTS so she could support her family.  He paid for the applicant to return home from Kuwait, for the development of a small shop so that her mother could work there, for the applicant’s application for a visa, and for medical treatment for one of her children.  The applicant deposes that she felt she owed something to Mr VTS for his financial support and felt obliged to go to Australia for that reason.  The applicant attributes to Mr VTS appalling physical, sexual, financial and psychological abuse.  Finally, the applicant deposes that she did not want her daughters to return to a life of poverty in the Philippines and she would have been jobless if she had left Mr VTS and returned home.
29. [29]
    The affidavit does little more than repeat and in some respects give more detail about evidence referred to in [9] – [11] and [16] of these reasons that was brought to the sentencing judge’s attention.  In so far as the affidavit includes additional information, the affidavit does not explain why that information was not given to Dr Palk or otherwise adduced at the sentencing hearing.  The evidence in the affidavit also does not have any impact upon any of the findings made by the sentencing judge, none of which is challenged in this application for leave to appeal.
30. [30]
    My conclusion is that upon the evidence at the sentence hearing, even if it were supplemented by the additional evidence which the applicant seeks to adduce in this application, the effective sentence imposed upon the applicant of ten years’ imprisonment with eligibility for parole after eight years is not manifestly excessive.
31. [31]
    The discretion to admit the applicant’s affidavit as evidence in the application for leave to appeal should not be exercised in favour of the applicant, at least because that evidence would not show that the applicant has been the victim of any miscarriage of justice.^[7]

Proposed orders

32. [32]
    I would refuse the application for leave to appeal against sentence and refuse the application for leave to adduce evidence.
33. [33]
    MULLINS JA:  I agree with Fraser JA.
34. [34]
    MAZZA AJA:  I agree with Fraser JA.