R v Leslie (a pseudonym)[2021] QCA 85

[2021] QCA 85

COURT OF APPEAL

SOFRONOFF P

MULLINS JA

DAVIS J

CA No 172 of 2020

DC No 448 of 2019

THE QUEEN

v

LESLIE (a pseudonym) Applicant

BRISBANE

TUESDAY, 4 MAY 2021

JUDGMENT

1. [1]
   DAVIS J:  The applicant seeks leave to appeal against sentences imposed upon her in the District Court at Beenleigh on 30 July 2020.  Effective sentences of nine years imprisonment with parole eligibility on 30 July 2024, being four years into the sentence, were imposed in relation to seven counts of rape, being domestic violence offences, three counts of indecent treatment of a child under 16 who is a lineal descendent, which are also domestic violence offences, and one count of indecent treatment of a child under 16 who is a lineal descendant.  That count was also a domestic violence offence.  It is unnecessary to descend into a detailed analysis of the offending.  A short summary will suffice.
2. [2]
   The applicant, by her former husband, had six children.  She lived with her husband and the children in Beaudesert.  There are four daughters and two sons.  In September of 2016, two of the applicant’s daughters disclosed to teachers at their school that their father had been sexually abusing them.  Other disclosures were later made.
3. [3]
   Disclosures were made by two of the daughters implicating the applicant.  The applicant’s husband had non-consensual vaginal intercourse with the two girls and otherwise sexually assaulted them while the applicant was present.  The offending occurred over a period of about four years.  The girls were aged between 10 and 13 at the time of the offending.
4. [4]
   The applicant was a party to the offending pursuant to s 7 of the Code.  Her presence was encouragement and therefore, aiding of her husband.^[1]  The applicant aided her husband in other ways.  On one occasion she accompanied one of the girls into the bathroom where her husband was waiting.  When the applicant’s husband told the applicant and her daughter to undress, the applicant did so.  That was count 5.  On another occasion, the applicant brought one of her daughters to her husband obviously knowing his intentions.  Afterwards, she took the complainant for a shower at her husband’s direction.  That was count 6.  On another occasion, she followed her husband’s direction to bring one of the daughters to him (count 7) and closed the bedroom door when directed.
5. [5]
   Unsurprisingly, the effect upon the complainants has been severe.
6. [6]
   On the present application, the applicant points to the fact that she lived in fear of her husband and was the subject of violence at his hands.  However, she pleaded guilty and did not raise the exculpation afforded by s 31 of the Code, which is compulsion, in defence of the charges.  Obviously, she could not.  The offending of her husband to which she was a party was repetitive and occurred over a lengthy period.  Any threats to her were not proximate enough to the offending to give her an excuse.
7. [7]
   The learned sentencing judge accurately described the offending as follows:

“You put your welfare above that of your children.  This was not one-off offending, and you continued to allow it to happen.  This conduct is reprehensible, vile and most heinous.  This is serious criminal offending committed by you as a mature woman with no relevant criminal history, although you have convictions for fraud in 2002 for which a bond was given, an assault occasion bodily harm offence for which you were placed on probation in June 2018.”

8. [8]
   Although her Honour referred to the applicant “allowing” the offending to occur, that comment must be taken in context.  The applicant aided the offending in the way I have described.
9. [9]
   The offences are domestic violence offences.  Section 9(10A) of the Penalties and Sentences Act 1992 provides as follows:

“In determining the appropriate sentence for an offender convicted of a domestic violence offence, the court must treat the fact that it is a domestic violence offence as an aggravating factor unless the court considers it is not reasonable because of the exceptional circumstances of the case.”

10. [10]
    As the learned sentencing judge observed, it was not suggested that “exceptional circumstances” existed here.
11. [11]
    In R v O'Sullivan; Ex parte Attorney-General (Qld); R v Lee; Ex parte Attorney-General (Qld),^[2] Sofronoff P at paragraphs 81 to 93 traced the history of various legislative changes culminating in section 10A.  His Honour then concluded by saying:

“This sequence of legislative changes since 1997 puts it beyond question that the legislature has made a judgment about the community’s attitude towards violent offences committed against children in domestic settings.  The amendments constitute legislative instructions to judges to give greater weight than previously given to the aggravating effect upon a sentence that an offence was one that involved infliction of violence on a child and that the offender committed the offence within the home environment.”

12. [12]
    In R v Watson,^[3] this Court described the circumstances which would attract the grant of leave to appeal sentence.  There, this was said:

“In order to obtain a grant of leave to appeal, the appellant needs to demonstrate an arguable error in the exercise of discretion.  It is the existence of error that grounds this Court’s jurisdiction to interfere with the exercise of discretion of a sentencing judge.  An appellate court that disturbs a discretionary order is obliged to identify the error that constitutes the legal justification for its intervention and must disclose its reasoning for its conclusion that there has been an error.  The error may be one of law or it may be one of fact.  It may involve a failure to take into account a relevant consideration or it may involve the taking into account of an irrelevant consideration.  It may be that it does not appear how the Judge making the order reached a result but, if upon the facts the order is unreasonable or plainly unjust, an appellate court might infer that there has been a failure to exercise the discretion properly.”

13. [13]
    Her Honour took into account the fact of the plea of guilty and the fact that some of the counts reflected particulars provided to the police by the applicant.  Her Honour also accepted that the applicant herself had been the subject of significant domestic violence.
14. [14]
    In Markarian v The Queen,^[4] the High Court held that sentencing involved an “instinctive synthesis approach” rather than attributing periods of imprisonment to individual aggravating circumstances and mitigating circumstances.  However, the Court accepted that on occasions, judges might descend to mathematical calculations in order to expose their reasoning.^[5]  Her Honour did so.
15. [15]
    Here, her Honour thought a sentence of 10 and a half years was not outside the range before then reducing that to nine years to take into account the mitigating circumstances.  Consistently with this Court’s judgment in R v Carlisle,^[6] the mitigating circumstances were used to reduce the head sentence in recognition of the fact that if the sentence was 10 years or over, a serious violence offence declaration was mandatory and therefore, mitigating circumstances could not be reflected in a recommendation for early parole.
16. [16]
    However, the mitigating circumstances having been taken into account in fixing the head sentence the judge was, in my view, correct to make a relatively minor, that is six months, reduction of the time which the applicant must serve before being eligible for parole.
17. [17]
    The offending to which the applicant was a knowing participant was, by any standards, horrific.  The sentence is well supported by comparative cases such as R v B and P,^[7] R v EC and RC; Ex parte Attorney-General (Qld),^[8] R v OM,^[9] and R v MGB & MBH.^[10]  The sentence is, in my view, clearly not manifestly excessive.  Indeed, a sentence attracting a serious violent offence declaration or one attracting an order delaying eligibility for parole,^[11] may have been difficult to upset on appeal.
18. [18]
    There is no error warranting the grant of leave to appeal sentence and I would dismiss the application.
19. [19]
    SOFRONOFF P:  I agree.
20. [20]
    MULLINS JA:  I agree.
21. [21]
    SOFRONOFF P:  The order of the Court is that the application is dismissed.