R v SDO[2021] QCA 263

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with the reasons for judgment given by Morrison JA and the order proposed by his Honour.
2. [2]
   MORRISON JA:  The applicant pleaded guilty to 21 charges of sexual offending, committed against three complainants.  Two of them were his biological daughters; the third was his niece.
3. [3]
   Counts 1-8 related to the applicant’s older daughter, B.  She was aged between six years and 13 years during the period of offending in respect of her.  The offences against B were:

   1. (a)
      count 1 – maintaining a sexual relationship with a child under 16 years old, in the course of which B was indecently treated; and
   2. (b)
      counts 2-8 – indecent treatment of a child under 12 years old, who was also a lineal descendant.
4. [4]
   Counts 9 and 11-21 all related to the applicant’s second daughter, T.  She was aged between four years old and 15 years old during the period of offending in respect of her.  The offences in respect of T were:

   1. (a)
      count 9 – maintaining a sexual relationship with a child under 16, in the course of which she was raped and indecently treated;
   2. (b)
      counts 11, 13, 15, 17 and 20 – rape; and
   3. (c)
      counts 12, 14, 16, 18-19 and 21 – indecent treatment of a child under 16 years old, who was also a lineal descendant.
5. [5]
   The third complainant was the applicant’s niece, Z.  She was seven years old when, in March 2019, the applicant raped her (count 10).
6. [6]
   Counts 10-21 inclusive were each averred to be a domestic violence offence.
7. [7]
   The applicant was sentenced to the following terms of imprisonment:

   1. (a)
      count 1 – maintaining a sexual relationship with B: six years;
   2. (b)
      count 9 – maintaining a sexual relationship with T: 14 years;
   3. (c)
      counts 2-8 – indecent treatment of B: three years on each count;
   4. (d)
      count 11 – rape of T: four years;
   5. (e)
      counts 13, 15, 17 and 20 – rape of T: six years on each count;
   6. (f)
      counts 12, 14, 16, 18, 19 and 21 – indecent treatment of T: three years on each count; and
   7. (g)
      count 10 – rape of Z: two years.
8. [8]
   All sentences were ordered to served concurrently and the conviction on count 9^[1] was declared to be a conviction for a serious violent offence.
9. [9]
   The applicant was aged between 24 and 40 years old over the total period of offending.  He was 41 years old at the time of sentence.
10. [10]
    The offending spanned the period between December 2003 and February 2020.  Of that 17 year period, there was an overlap of about three years when the applicant offended against both of his daughters at the same time.

Background to the offending

11. [11]
    An agreed statement of facts formed the basis of the sentencing.  By the time of sentencing B was 22 years old, T was 15, and Z was nine.
12. [12]
    The circumstances of the sole offence against Z (rape) concerned an occasion when Z and her family, including the applicant, stayed at a particular resort.  Z slept in a room with the applicant and his family (including his wife and her younger sister).  Z slept on a top bunk above the applicant.  Sometime after Z had gone to bed, the applicant came into the room to go to bed in the bunk below Z.  After a couple of minutes, he approached Z, pulled her underpants to the side under her nightie, and briefly penetrated her vagina with his finger.^[2]  Z told police she could feel the applicant’s finger inside her vagina for approximately five seconds.  She began to cry.  The applicant told her not to cry and said, “please don’t tell anyone”.
13. [13]
    About nine months later, Z’s mother went to the police, advising that Z had disclosed sexual offending against her by the applicant.  Z participated in an interview.
14. [14]
    Police arranged for Z’s mother to conduct a pretext phone call with the applicant.  The recording failed, but the allegation made by Z was put to the applicant.  Following that call, the applicant told his wife (the mother of B and T) of the allegation and denied it.
15. [15]
    Some days later, the applicant attended the police station where he was advised of the nature of the allegation and an arrangement to take part in a recorded interview some days later again.
16. [16]
    During that interview, the applicant confirmed all of the surrounding circumstances as revealed by Z, including the sleeping arrangements and the occasions when he was in the bedroom with just Z and his sister-in-law.  When the allegations were put to him in full, the applicant said he did not recall any of it and continually used the phrase, “I don’t think it happened”, rather than expressly denying the allegations.  When pressed as to why he responded that way, he said it was because he did not understand why Z would say it happened.  He told police that Z was always very affectionate towards him, sometimes to the point that he had to push her away.
17. [17]
    Following that interview, the applicant was charged for the offending against Z and released on bail.
18. [18]
    While the applicant was with the police, B disclosed to her mother that the applicant had offended against her for “a long time”.  After the applicant had left the police station, his wife asked whether he had offended against their children.  The applicant denied any such conduct until he was told that B had made disclosures.  He then admitted that he had “touched” B, but that he had not offended against any of the other children.  Later that day, the applicant’s wife spoke to T who, in general terms, disclosed the offending committed against her, and the duration of it.
19. [19]
    The following day, the applicant’s wife confronted him about the allegations made by T and the applicant said that he was “sorry”.  Later that day, he attended the police station in a distressed state and advised that he was there to talk about “[Z] and other things”, saying that he was trying to “do the right thing”.  He told police, “… it happened, but I didn’t go inside her, I just touched her … but there’s other things, my daughters … I can’t believe I’ve done this”.  The applicant explained that he wanted to come forward rather than “putting it on them”, saying “I need help”.  When asked how “big” the things with his daughters were, he said “quite lengthy, the oldest when she was younger for a few years, and then my other daughter, and apparently my youngest which I don’t even remember”.  As a result of the applicant’s emotional state and the admissions made, the arresting officer contacted the applicant’s solicitor and enabled the applicant to speak with them.  He then exercised his right to silence.
20. [20]
    The following day the applicant suggested to his wife that he would be pleading guilty as he needed a certain sum of money for legal aid and for “sentencing”.
21. [21]
    As a result of the applicant’s disclosures, police spoke to his daughters, B, T and the youngest one.  Both B and T advised that they had been subject to sexual offending by the applicant throughout their entire childhood.

Offending against B

22. [22]
    B told police that the usual thing was that, about twice a week from when she was six years old, the applicant would perform cunnilingus on her.  B said that as she got older the application would also use his fingers to penetrate her vagina and perform cunnilingus or digitally penetrate her until she orgasmed.  Afterwards, he would ask her to do something for him, such as masturbate him, and if she refused, he would either masturbate himself in front of her, or leave.^[3]  B recalled the offending occurred at each house in which the family lived, and was able to recall specific occasions of cunnilingus or digital penetration during the offending period.
23. [23]
    The applicant used to also call B into his room to watch him masturbate.  The applicant would also sometimes hold a CD under the door of the bathroom to watch B in the shower.
24. [24]
    For a period of time when B’s mother stayed at home following the birth of T, the offending did not happen as often.
25. [25]
    There were occasions when the applicant did not limit his offending to the family home.  B recalled one occasion when she was in Perth with the applicant for a sport engagement, and they engaged in sexual interactions in a bunk bed.
26. [26]
    B thought that the behaviour was just what dads and daughters did.  On one occasion in 2011, B asked the applicant why he was allowed to touch her private parts, and he told her that is what dads can do.
27. [27]
    The applicant told B not to tell anyone about what was happening, saying that it was their little secret.  He also ensured that B never wanted for anything, and always found a way to get her anything she desired.
28. [28]
    The first occasion of sexual offending that B could recall was when she was living with her family at a particular house.  B was sleeping in the lounge room on a foam mattress when she woken by the applicant performing cunnilingus on her.  When he stopped, he told B, “don’t tell Mum, it’s our secret”.^[4]
29. [29]
    On another occasion, B asked the applicant if she could use the spa, which was outside the house.  The applicant told B she could go in if he went in with her, which they did.  While in the spa, the applicant grabbed B’s hand and rubbed it on the top of his pants, so that she was able to feel his erect penis underneath.^[5]  He then moved his pants down and masturbated in front of her.^[6]  Following this, B got out of the spa and the applicant told her to go into his room, which she did.  He laid a towel on the bed, underdressed B and performed cunnilingus on her until she orgasmed.^[7]
30. [30]
    On another occasion, B was in a ball pit in the toy room when the applicant approached her and told her take off her pants.  Once she had done so, the applicant laid B down in the ball pit, and performed cunnilingus on her.^[8]
31. [31]
    When B was 10 or 11 years old, the applicant had a shower with her, and showed her how to use the high pressure detachable showerhead to orgasm.  In doing this, the applicant placed the showerhead between B’s legs so that the water sprayed onto her vagina, and held the showerhead in this position until B told him it was hurting and asked him to stop.^[9]  Following this, the applicant told B to touch his penis and then placed her hand on his penis and moved it up and down to masturbate him.^[10]  B tried to get out of the shower, but the applicant told her she had to do it for him, because he had done it for her.  The shower came to an end when a noise signalled that someone was around.  A couple of days after this offending B had blood showing when she wiped after going to the toilet.
32. [32]
    Once B began menstruating, the applicant ceased all of his sexual behaviour towards her, save for occasionally watching her in the shower with the aid of a CD.  B recalled being around 13 years old when the offending came to an end.

Offending against T

33. [33]
    T explained that the applicant offended against her quite regularly, and she could not count the number of times it happened over the course of her childhood.  She said that at the beginning, the applicant would perform cunnilingus on her while she slept, and shush her back to sleep when she awoke.  As she got older, however, the offending became more intense.^[11]
34. [34]
    The offending varied over the period that the applicant and his family lived at various houses.  At the first house the offending was isolated to the applicant performing cunnilingus on her.  Once they moved to the next house, the offending progressed to include T being required to fellate the applicant.  T recalled that sometimes the fellatio would hurt her and she would choke during the act.
35. [35]
    That offending continued when they moved to the next house, and escalated further to include the applicant rubbing his penis between T’s buttocks.  Towards the end of their time at that house, the offending progressed even further, to include penile penetration of her vagina.
36. [36]
    Since moving to the last house during the offending period, the applicant offended against her an estimated 15-20 times.  T explained that her mother worked nightshifts varying week to week, and it was during those times that the offending occurred.
37. [37]
    T said the offending happened all the time when she was younger, but as she got older she was more able to say “no” when it was hurting her.
38. [38]
    On a number of occasions, the applicant would request penile penetration of T’s vagina, and she would instead suggest that he rub his penis between her buttocks like they did when she was younger, as she knew that that did not hurt her.
39. [39]
    The applicant told T from a young age that she was not to tell anyone about what they were doing, and so each time something happened she had to keep it a secret.  She also explained that the applicant used to pay her and buy her anything she wanted, but would then use it against her when he wanted sexual favours from her, saying that she owed him.
40. [40]
    On the night of the offending against Z, T had seen the applicant with his hand under Z’s sheets and told him to go to bed.  The applicant asked T to fellate him.  She initially declined, but he pleaded with her, so she agreed in order to stop him offending against Z.  T fellated the applicant in the bedroom briefly but was worried about being seen so she and the applicant went to an adjoining bathroom, where she continued to fellate him.^[12]
41. [41]
    When she decided she did not wish to continue, T asked if the applicant could just look at her instead, but he made her bend over and he performed cunnilingus on her.^[13]  The applicant then had brief sexual intercourse with her from behind.^[14]  He then rubbed his penis between her buttocks until he ejaculated, that occurring after T told him not to penetrate her.^[15]
42. [42]
    On one occasion in December 2019, at the last house where offending occurred, the applicant called out to T from his room, and then came out and asked, “do you want to come give me some lovin’?”  T refused, and the applicant left, but he later asked her again and she went into the bedroom with him, as she wanted to be able to sleep.  The applicant told T to take her pants off, but she refused.  The applicant removed them himself.  He attempted to perform cunnilingus on her, but T rolled into a ball on the bed to block access.  The applicant then partially inserted his penis into T’s vagina.^[16]
43. [43]
    T told him “no” because it hurt, and suggested he rub his penis between her buttocks instead.  T continued to say “no”, and the applicant eventually got grumpy, and told her not to worry about it.  T left and went to the lounge room, and eventually the applicant came out and asked her to return to the bedroom.  When she refused, the applicant told her he would “just look”, so T agreed.  T pulled her pants down and crouched on her hands and knees, while the applicant looked at her and masturbated until he ejaculated.^[17]
44. [44]
    On a separate night at that house, the applicant came into T’s room and asked her to come into his room.  The applicant told her take her pants off, but she refused.  The applicant then took T’s pants off, before attempting to perform cunnilingus on her.  He was unable to do so, as she rolled onto her stomach on the bed to block access.  Instead, the applicant inserted his penis into T’s vagina from behind and had sexual intercourse with her for less than one minute.^[18]  T told the applicant to stop because it was causing her pain, but the applicant told her that she could take it.  After a brief period, the applicant stopped and then masturbated while looking at T, until he ejaculated.^[19]
45. [45]
    On a later night in January 2020, when T’s younger sister was at a friend’s house, the applicant asked her multiple times during the evening to “give me some lovin’”, but she refused.  He lay down next to T on the couch and tried to touch her breasts, touched her on buttocks and vagina while she did the dishes, and pulled her pants down.  T continued to refuse until eventually, being tired of the applicant continuing to ask her, she acquiesced and went to the bedroom with him.  T told the applicant he was only allowed to look, but not touch.  He masturbated while she lay naked on the bed.^[20]  The applicant then attempted to lick T’s vagina and partially inserted his penis into her vagina.^[21]  She refused and told him he could rub his penis between her buttocks instead.  He did so until he ejaculated on her back.^[22]
46. [46]
    In early February 2020, T received a phone call from the applicant telling her that he was in trouble and begging her not to tell her mother anything.  He told her that when her mother asked, to just deny it.  He also told her to delete the phone call from her call log.
47. [47]
    T told police that she kept allowing the offending conduct to happen to her, so that the applicant did not start offending against her younger sister.

Approach of the sentencing judge

48. [48]
    The learned sentencing judge commenced his sentencing reasons by announcing that he would impose a sentence of 14 years imprisonment on count 9.  Further, that sentence was to attract a serious violent offence declaration which would require the applicant to serve a minimum of 80 per cent of the term.  His Honour then said he would impose shorter concurrent terms for the other offending.
49. [49]
    I pause to note that in the sentencing submissions, the Crown urged a sentence of not less than 15 years on count 9.  On the other hand, Counsel appearing for the applicant contended that amelioration from a start point of 15 years would bring the head sentence for count 9 to “somewhere between 12 and 14 years”.
50. [50]
    His Honour noted the plea of guilty to all 21 counts and the fact that the offences occurred in relation to two daughters of the applicant, one of whom was under 12 and one of whom was under 16.
51. [51]
    In terms of the offending conduct itself, the sentencing judge reviewed the facts as set out in the agreed schedule.  His Honour noted that in respect of the offending against Z, there were these features:

    1. (a)
       it could not be said that full and frank admissions were made in conversations with police, but there was an admission to some extent of the conduct; and
    2. (b)
       the applicant’s primary purpose was to protect himself but that his behaviour since, and in particular as a consequence of psychological treatment in which he had engaged, the applicant’s “mindset has changed”.
52. [52]
    As to the offending against his daughters, his Honour noted the following features:

    1. (a)
       the offences were significant; B was aged between six and 13 during the maintaining period;
    2. (b)
       count 9 (the maintaining period in respect of T) occurred over a significant period between 2009 and 2020, when T was aged between four and 15;
    3. (c)
       all of the conduct constituted “very serious abuse of your daughters”;
    4. (d)
       the conduct demonstrated exploitation of his position of authority and habitual engagement in that behaviour for the applicant’s “own selfish sexual gratification”;
    5. (e)
       the conduct was “an appalling breach of a father’s obligation to protect his children”;
    6. (f)
       the applicant engaged in “this egregious behaviour” over a period of many years;
    7. (g)
       it had a significant and profound effect upon his daughters, but also his wife;
    8. (h)
       the daughters had undergone psychological counselling, as had Z; and
    9. (i)
       the victim impact statements spoke eloquently about the impact, but seemed “somewhat understated”.
53. [53]
    His Honour then turned to the applicant’s personal circumstances, noting that he was between 24 and 40 at the time of the offending and had no prior convictions.  His Honour then turned to what might be derived from the psychological report from Ms Tate.^[23]  This indicated that the applicant had a good upbringing, was educated to grade 10 level, and had an undeniably good work record once he left school.  The psychologist recorded the applicant’s account of his background, including his sexual history and development.  This revealed a resort to masturbation as a mechanism for coping with stressors, as a way of feeling better and reducing stress, even as a child.  The applicant formed a relationship with his wife from when they were young, and had B when the appellant was only 18.  That relationship suffered some difficulties and the offending occurred in the context of relationship difficulties, pressures in his working life and a resort to intimacy with his children as a way of coping with the stressors.
54. [54]
    His Honour noted that since his arrest, the applicant had no contact with his children or wife, had been living with his parents, and had lost his employment.  However, he had since returned to working, and continued to financially support his family.  His Honour accepted that the applicant had been depressed since the time of his arrest, had exhibited some thoughts of self-harm, and been medicated for depression.
55. [55]
    The sentencing judge made these points concerning the question of remorse and insight:

    1. (a)
       his Honour was satisfied that the applicant had expressed demonstrated remorse in the course of the treatment program with the psychologist;
    2. (b)
       he was also satisfied that the applicant had “at least commenced ... rehabilitation” by engaging in that process;
    3. (c)
       the guilty plea was an early plea, which evidenced cooperation in the administration of justice;
    4. (d)
       the early plea also relieved the complainants from having to give evidence, which was a matter of some significance;
    5. (e)
       admissions were made to the police, although they were not full and frank, and limited;
    6. (f)
       in the circumstances, although remorse was not immediately evidenced by full and frank admissions, his Honour was satisfied that there had been evidence of genuine remorse, a developing sense of understanding and insight into the conduct in the course of the treatment; and
    7. (g)
       however, the applicant had not been full and frank in respect of the offending against T, at least in the revelations made to the psychologist; specifically, the applicant maintained to the psychologist that he had not penetrated T with his penis, contrary to the agreed schedule of facts; that notwithstanding, his Honour had regard to the report and concluded that it was consistent with a “developing or emerging understanding by you, through the course of the treatment program, of what you had done and an understanding of the reasons for your behaviour”.
56. [56]
    His Honour noted that the applicant, having shown remorse and accepted responsibility, had a level of insight and expressed a continuing desire to engage in treatment.  The risk assessment undertaken by the psychologist was that the applicant remained, overall, a “moderate risk of reoffending”.  Nevertheless, his Honour found that there was a proper basis to conclude that there was a genuine prospect of rehabilitation.
57. [57]
    The sentencing judge concluded there were no exceptional circumstances preventing a period of imprisonment, and no submission had been made to that effect.  Having had regard to the comparable sentences put forward by both the Crown and defence, his Honour regarded them as yardsticks for approximating the range of penalty.  However, his Honour observed that the appropriate sentence had to depend on the particular circumstances of the case.  In that regard, his Honour made these points:

    1. (a)
       the conduct was very serious and over a long period of time;
    2. (b)
       a lengthy period of imprisonment was necessary to record the seriousness of that conduct and the community’s disapproval of it;
    3. (c)
       general deterrence as well as personal deterrence had to be taken into account;
    4. (d)
       significant terms were appropriate for the offences relating to each of the separate victims;
    5. (e)
       the sentence imposed on count 9 was one “designed to reflect all of the offending”;
    6. (f)
       being longer than 10 years, that sentence would attract the automatic application of a serious violent offence declaration, meaning that 80 per cent of the term must be served; and
    7. (g)
       in arriving at that sentence, his Honour considered it reflected the overall criminality, having taken into account the early plea as well as other matters by way of mitigation.

The applicant’s contentions

58. [58]
    The applicant’s written submissions seek to give further explanation in respect of matters dealt with in the psychologist’s report.  These are dealt with in sections 1-4 and 6 of the applicant’s written outline.  Whatever further emphasis or explanation the applicant seeks to make to the matters within the report were matters not advanced at the sentencing hearing, and should not be accepted now.  The sentencing judge was addressed on the subject matter of the psychological report by both sides, and self-evidently from his sentencing remarks, took it into account.  These submissions by the applicant on appeal do not reveal that his Honour misunderstood the report or gave it inappropriate weight in some respect.
59. [59]
    Under the heading “Cessation in the offending and penial (sic) penetration”,^[24] the applicant seeks to advance an argument that there was a three-year break between his offending in respect of B and offending in respect of T.  In his oral submissions the applicant developed this point, saying that his sentencing lawyers advised him: (i) if they argued that point the discount he would receive in respect of the guilty plea would be the same; and (ii) it would subject his daughters to further interrogation.  As a consequence he was then not prepared to advance that point.  However, he now wished to advance the break in offending as a relevant matter.
60. [60]
    The applicant’s submissions reveal that he acted on legal advice to make a considered decision not to advance the point at sentencing.  Part of his reasons was not to subject his daughters to further interrogation.
61. [61]
    The learned sentencing judge referred to the fact that the psychological report departed from the agreed schedule of facts, particularly in paragraph 10.13 where he referred to his offending against T.  He told the psychologist that he had never penetrated T with his penis, whereas the agreed schedule of facts stated that expressly.  That discrepancy was highlighted in the submissions by the Crown at sentencing,^[25] and no submission was made by defence Counsel that the facts should be understood in accordance with the psychologist’s report, rather than the agreed schedule.
62. [62]
    Further submissions to similar effect were made orally.  One was that the police interview had suggested some phrases to B and T which were never used by him.  Another was that the agreed schedule was wrong to say that the offending against B stopped when she commenced menstruation.  These aspects were things not raised at the sentencing hearing.
63. [63]
    What the applicant now seeks to advance is contrary to the agreed schedule of facts and contrary to a deliberate decision made at the sentencing hearing on advice.  The submission should be rejected.
64. [64]
    The applicant submits that the Crown’s approach during sentencing on this aspect was intended to make the sentencing judge believe that the applicant was not taking full responsibility for his offending, in line with his guilty plea.  However, the applicant was sentenced on the basis that he took responsibility for all of the offending, and his guilty pleas, admissions and treatment experience showed that he had demonstrated insight and empathy which were promising for the prospects of rehabilitation.
65. [65]
    Nothing advanced in section 5 assists the applicant’s challenge to his sentences.
66. [66]
    In section 7, the applicant seeks to advance additional facts in respect of the offending against Z, which were not in the agreed schedule.  Since they were not part of the basis upon which he was sentenced, those submissions should be rejected.
67. [67]
    In section 8, the applicant urges that his lack of criminal history was not considered.  However, the learned sentencing judge appropriately considered that matter.
68. [68]
    Sections 9 and 10 of the applicant’s outline refer to the applicant’s efforts to continue to support his wife and children, notwithstanding his circumstances.  They also refer to his efforts to assist police by refusing to put his family through further questioning in the sentencing process.  These were matters raised at the sentencing hearing and taken into account by the sentencing judge.  Nothing in these sections advances the contention that the sentences were inappropriate.
69. [69]
    Section 11 of the outline deals with a number of contentions concerned with the expression of various matters by the learned sentencing judge.  None of them demonstrate any error on the part of the sentencing judge in comprehending the case being advanced and weighing the various considerations.  To the extent that they seek to advance a factual scenario different from the agreed schedule of facts, they should be rejected.  Some of the contentions criticise his Counsel’s approach at the sentencing hearing,^[26] and in particular that his Counsel had misrepresented him because his circumstances were unique.  The basis for these attacks is a misunderstanding as to what was referred to by the sentencing judge.  One concerned the comment that under the Penalties and Sentences Act, the offending would call for a period of actual imprisonment unless exceptional circumstances were demonstrated.  The sentencing judge noted that “no submissions had been made to that effect”.  That was truthful.  It was also justified on the part of Counsel, given the nature of the offending.  It does not reveal a misrepresentation because the applicant’s situation was unique.
70. [70]
    The same applies to his Honour’s reference to the cases to which he was referred as being a “yardstick”.  They were advanced at the sentencing hearing for that express purpose.  They underpinned the submissions made by each side as to the appropriate sentence.  On that basis, defence Counsel’s suggested range for count 9 was 12 to 14 years.  The ultimate sentence was 14 years.
71. [71]
    In section 12 and 13 of his outline, the applicant advances submissions concerned with his view about whether he should be part of the lives of his daughters and the stress they are under.  Additionally, he advances submissions concerned with the fact that he has been a positive prisoner since his incarceration.  None of those matters demonstrate any error on the part of the sentencing judge.  Notwithstanding what had occurred by way of offending conduct, the sentencing judge concluded that the applicant demonstrated genuine remorse and his prospects for rehabilitation were positive.
72. [72]
    The final contention put forward by the applicant is that the sentence is manifestly excessive, by reference to the cases advanced by his counsel below.  As to that ground, the High Court in R v Pham observed:^[27]

“Appellate intervention on the ground of manifest excessiveness … is not warranted unless, having regard to all of the relevant sentencing factors, including to the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”

73. [73]
    The applicant’s offending was rightly described by the sentencing judge as an appalling breach of a father’s obligation, and egregious behaviour occurring over a period of many years.  The offending involved penetrative acts committed over an extended period of time and from when the applicant’s daughters were very young, B being aged six and T aged four when the offending commenced.  It involved not only indecent treatment but oral, digital and penile rape on a total of six occasions, five against T, and one against Z.  The offending was undoubtedly very serious and deserving a sentence that reflected the condemnation, punishment and to serve the purposes of general and personal deterrence.
74. [74]
    The sentences imposed, and in particular that on count 9 (14 years), are not demonstrated to be manifestly excessive by regard to previous decisions of this Court.  In that respect:

    1. (a)
       R v DBF (No 3)^[28] involved a sentence of 17 years which was described as high but not outside the exercise of proper discretion; that offending was against three natural daughters over a period of 13 years, the conduct being described as egregious and involving a variety of forms of sexual abuse; one of the victims was vulnerable in the sense that she suffered from cerebral palsy and chronic arthritis; the offending did not commence until each child was at least 10, whereas the victims in this case were considerably younger; although the matter went to trial in respect of the first two children, the third proceeded on a plea;
    2. (b)
       R v RAZ; Ex parte Attorney-General (Qld)^[29] involved a sentence of nine years being increased to 11 years by this Court; there was a single complainant who had been the subject of sexual offending over a 12 year period; the conduct commenced when he was four or five and continued until he was 16; the offending conduct involved masturbation, sucking the complainant’s penis, rubbing his penis on the complainant’s back or arm and on one occasion putting his penis into the complainant’s mouth; the offending did not involve the multiple occasions of penetration that is applicable in this case, and as well there was only one complainant whereas there are three in this case;
    3. (c)
       In R v HBT,^[30] there was a single complainant aged between 10 and a-half and 17 during the period of offending; the complainant was the offender’s biological son and offending included mutual masturbation, oral sex and anal intercourse; the sentence was imposed after a trial; the 15 year sentence was not found to be manifestly excessive; the offender in that case had a relevant criminal history involving offending against three other complainants.
75. [75]
    In his oral submissions the applicant sought to demonstrate that DBF (No 3), RAZ and HBT had distinguishing features that meant they were not of utility as yardsticks.  True it is that each has facts that are different from the present case, and HBT was a sentence imposed after a trial.  However, in DBF (No 3): (i) the relevant sentence under challenge was imposed upon a plea of guilty; (ii) the victims were slightly older when the offending started; (iii) the offending was shorter in duration than here; (iv) the offending conduct was similar though the third daughter was disabled and the offending against her was the subject of the 17-year sentence.  All that demonstrates is that DBF (No 3) was a worse case that attracted a higher sentence.  Similar points can be made as to RAZ, and how less serious offending attracted a lower sentence in that case.  However, that does not satisfy the test set in Pham, namely that this Court should be driven to conclude that there must have been some misapplication of principle.  I cannot reach that conclusion.

Conclusion

76. [76]
    It cannot be demonstrated that the sentences imposed were in error, or manifestly excessive.  The application should be refused.  The order I propose is:

1. Application for leave to appeal against sentence refused.

77. [77]
    McMURDO JA:  I agree with Morrison JA.