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R v BDQ[2022] QCA 71

SUPREME COURT OF QUEENSLAND

CITATION:

R v BDQ [2022] QCA 71

PARTIES:

R

v

BDQ

(applicant)

FILE NO/S:

CA No 162 of 2021

DC No 2497 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 25 June 2021 (Allen QC DCJ)

DELIVERED ON:

10 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2022

JUDGES:

Morrison and McMurdo JJA and Brown J

ORDER:

Leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant sought leave to appeal against sentence – where the applicant was convicted after trial of one count of maintaining a sexual relationship with a child, two counts of rape and one count of indecent treatment of a child under 16 who is a lineal descendant – where the applicant was sentenced on count 1 for 12 years’ imprisonment – where the applicant was declared to have been convicted of a serious violent offence – where the applicant was convicted but not further punished in relation to the remaining three counts – whether the sentence was manifestly excessive in all the circumstances

Criminal Code (Qld), s 210, s 215

Criminal Law (Domestic Violence) Amendment Bill (No. 2) 2015 (Qld)

Penalties and Sentences Act 1992 (Qld),  s 9

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited

Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6, cited

Hill v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited

R v BAO [2004] QCA 445, considered

R v BCA [2011] QCA 278, cited

R v BCW [2014] QCA 340, considered

R v C; Ex parte Attorney-General (Qld) [2003] QCA 134, considered

R v DBC; Ex parte Attorney – General (Qld) [2012] QCA 203, considered

R v DBV [2021] QCA 227, considered

R v Fenton [2015] QCA 125, considered

R v HCF [2021] QCA 189, considered

R v Muirhead; R v Muirhead; Ex parte Attorney-General (Qld) [2019] QCA 244, considered

R v O'Sullivan and Lee; Ex parte Attorney-General (Qld) (2019) 3 QR 196; [2019] QCA 300, considered

R v PAM [2011] QCA 36, considered

R v SAG (2004) 147 A Crim R 301; [2004] QCA 286, considered

R v SBJ [2009] QCA 100, considered

R v SCK [2016] QCA 34, considered

R v Tout [2012] QCA 296, cited

COUNSEL:

B J Power QC, with C R De Marco, for the applicant

D L Meredith for the respondent

SOLICITORS:

Guest Lawyers for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MORRISON JA:  I have had the advantage of reading the reasons for judgment of Brown J.  I agree with those reasons and with the orders proposed by her Honour.
  2. [2]
    McMURDO JA:  I agree with Brown J.
  3. [3]
    BROWN J:  BDQ was convicted after trial of one count of maintaining a sexual relationship with a child, two counts of rape and one count of indecent treatment of a child under 16 who is a lineal descendant.  All four offences were domestic violence offences.  After a trial of five days, the jury returned verdicts of guilty on all counts.
  4. [4]
    The applicant was sentenced to 12 years’ imprisonment for maintaining a sexual relationship with a child.  The applicant was therefore declared to have been convicted of a serious violent offence.  The applicant was convicted but not further punished in relation to the remaining three counts before the Court.  A period of 65 days pre-sentence custody was declared as time served under the sentence.
  5. [5]
    The applicant seeks leave to appeal against the sentence imposed on the ground that the sentence imposed was manifestly excessive in all the circumstances.

Circumstances of offending

  1. [6]
    The offending of the applicant was against his biological daughter when she was aged between 12 and 14 years of age.  It occurred over a period of about two years.  It involved regular acts of digital and penile penetration of the vagina.  According to the complainant she would pretend to be asleep, although on at least one occasion she had told him to “get out” when he had tried to get her to touch his penis.  It was estimated by the complainant that the penile penetration occurred approximately once every two weeks over much of the offending period.  Some specific occasions of offending during the period of maintaining were the subject of counts 2, 3 and 4.  The offending was non-consensual.  There was no evidence of physical violence or emotional blackmail involved.
  2. [7]
    The applicant and the complainant’s mother had separated, and the complainant was living with her father and her sibling.  The complainant was the eldest of her siblings.
  3. [8]
    The conviction followed a five-day trial.  The complainant was cross-examined.  The applicant also gave evidence denying the allegations which obviously was not accepted by the jury.

Matters considered by the sentencing Judge

  1. [9]
    In addition to the circumstances of the offending, the sentencing Judge considered:
    1. (a)
      The applicant’s antecedents, which included that he was 34 - 36 years of age at the time of offending and 37 years old at the time of sentence.  He had a disadvantaged childhood, including exposure to domestic violence and drugs, with very little education.  He was functionally illiterate.  Notwithstanding his lack of education, he had a good work history providing for not only his own children but extended family members until he suffered a heart attack in his mid-30s which limited his ability to maintain employment;
    2. (b)
      The fact that the applicant was the sole carer of his daughter after her mother had left;
    3. (c)
      The fact that the applicant takes medications for various health conditions but that there was no suggestion his health could not be satisfactorily managed whilst in custody;
    4. (d)
      That the applicant had a minor and dated criminal history, which his Honour regarded as inconsequential for the purposes of the sentence, and that he had never been in prison;
    5. (e)
      The fact that the offence involved sexual acts against his biological daughter for a period of about two years when she was between 12 to 14 years of age, which included regular acts of digital and penile penetration which were aggravating features of the offending;
    6. (f)
      That none of the mitigating circumstances identified by Jerrard JA in R v SAG[1] were present;
    7. (g)
      The significant impact on the complainant which was evidenced by a victim impact statement;
    8. (h)
      The offending occurred whilst the applicant was in a position of trust as her parent and sole carer;
    9. (i)
      That there was no evidence of remorse;
    10. (j)
      The maximum sentences that could be imposed for the offences concerned, which included a life sentence for the offence of maintaining an unlawful sexual relationship; and
    11. (k)
      Cases that were put before him by the Crown and the defence, namely, R v SAG, R v C; Ex parte Attorney-General[2] (R v C) and R v DBC; Ex parte Attorney-General[3] (R v DBC).
  2. [10]
    The sentencing Judge acknowledged that imposing a sentence of greater than 10 years would result in a declaration that the applicant was a serious violent offender and that he would therefore have to serve 80 per cent of the sentence imposed.
  3. [11]
    His Honour also took into account s 9(10A) of the Penalties and Sentences Act 1992 (Qld) (the Penalties and Sentences Act), which required his Honour to treat the fact that each of the offences of which the applicant was convicted was a domestic violence offence as an aggravating factor.
  4. [12]
    The sentencing Judge considered that based on the cases that were placed before him, the conduct for which the applicant had been convicted may attract a sentence of nine to 10 years’ imprisonment if he had pleaded guilty.  His Honour stated that the cases to which the Court was referred “do not support the imposition of such a sentence after conviction following a trial for such offences.”
  5. [13]
    His Honour then imposed a sentence of 12 years’ imprisonment with the declaration of conviction of a serious violent offence.  In relation to the other offences which were specific incidents which occurred during the period of maintaining, as stated above his Honour recorded convictions but did not impose further punishment.  Thus, the sentence of 12 years’ imprisonment reflected the applicant’s overall criminality.
  6. [14]
    There is no specific error alleged to have been committed by the learned sentencing Judge in sentencing.

Contentions of the applicant

  1. [15]
    The applicant contends that the sentence imposed is manifestly excessive when regard is had to a broad range of comparable decisions which serve as a yardstick for the appropriate sentence that should have been imposed.  The applicant contends that none of those cases imposed a sentence of 12 years’ imprisonment, supporting the fact that in the present case, the learned sentencing Judge had gone beyond proper sentencing discretion.  In oral submissions, it was contended on behalf of the applicant that while the comparable cases demonstrate that it was open for the sentencing Judge to sentence the applicant to 10 years, it was not open to sentence him to 12 years, particularly when regard was had to the effect of the serious violent offence declaration.  The applicant submits a sentence of nine to 10 years’ imprisonment is open for the level of offending even after a trial on the offences, taking into account the mitigating circumstances in terms of the applicant’s background.
  2. [16]
    The Crown submits that the cases relied upon by the applicant, which include cases not referred to his Honour, do not of themselves, demonstrate that the sentence imposed was manifestly excessive.  In the present case, the Crown submits that intervention is not justified simply because the sentence imposed was markedly different from that imposed in other cases.  It is only warranted where the difference is such that in all the circumstances the appellate court concludes there must have been some misapplication of principle, which the Crown contends is not the case here.  In particular, the Crown submitted the case of R v C supported the sentence imposed where the Court of Appeal, on an appeal by the Attorney-General, increased the head sentence to 10 years, indicating it could have been higher.  The Crown conceded that a 10 year sentence would not have been outside the sentencing discretion but stated similarly a 12 year sentence was not beyond the Judge’s sentencing discretion, in all the circumstances.  While the Crown could not point to a case where a 12 year sentence had been imposed in similar circumstances, it submits that is not a sufficient basis to infer that the sentence was manifestly excessive.  The Crown further submitted that all the cases other than R v HCF[4] were decided before the insertion of s 9(10A) of the Penalties and Sentences Act, which provided that being convicted of a domestic violence offence is an aggravating circumstance, the effect of which needed to be considered in any examination of the cases for consistency.

Relevant principles

  1. [17]
    To establish that a sentence is manifestly excessive it is necessary to demonstrate that the difference with comparable cases is such that there must be a misapplication of principle or that the sentence is “unreasonable or plainly unjust”.[5]  Comparable cases serve as a yardstick for the imposition of a sentence on an offender for the purpose of ensuring broad consistency in sentencing.  The circumstances of an individual case must be examined including material differences from the cases concerned.  As was stated by the Court in R v Muirhead; R v Muirhead; Ex parte Attorney-General (Qld)[6] “The limits of the guidance afforded by comparable cases are therefore flexible rather than rigid.”
  2. [18]
    In circumstances where an accused has exercised his right to trial, he or she is not to suffer additional punishment when sentenced.  However, exercising this right relevantly means that the circumstances of mitigation will be limited, given proceeding to trial is generally indicative of a lack of remorse.[7]  The absence of a plea of guilty means that a defendant does not have the benefit of being seen to have taken responsibility for his or her actions and facilitated the administration of justice by their plea.
  3. [19]
    Section 9(10A) of the Penalties and Sentences Act was required to be considered in assessing the consistency of sentences of comparable cases.  In considering its operation, the Court however needs to consider the legal and factual context of the cases decided before its operation, which took into account aggravating features in sentencing.

Case law referred to the sentencing Judge

  1. [20]
    The sentencing Judge was referred to R v SAG[8] for relevant principles that apply in sentencing cases such as the present.  The Crown submitted that based on R v C[9] a sentence of not less than 10 years was within his Honour’s discretion.  It was submitted by the Crown that the present offending was less serious than the offending in R v C, but unlike that case, there was no remorse in the present case.  The defence relied upon the distinguishing features of the present case from R v C, which was more serious, and R v DBC,[10] in submitting that a sentence of nine years with parole eligibility after serving half of the sentence was the appropriate sentence.
  2. [21]
    The sentencing Judge referred to the factors identified by Jerrard JA in R v SAG[11] that would be regarded as aggravating circumstances[12] and increase a sentence for an offence of maintaining a sexual relationship.  In particular, the sentencing Judge noted that the aggravating circumstances included the fact that there was a penile rape and unlawful carnal knowledge of the victim over a prolonged period where the offender is in a parental or protective relationship, which were features of the present offending.[13]  The sentencing Judge noted the absence of other aggravating features identified by Jerrard JA, such as actual physical violence or evidence of emotional blackmail.  The sentencing Judge further noted an absence of the mitigating circumstances identified by Jerrard JA, namely:[14]

“Matters which mitigate the penalty include conduct showing remorse, such as the offender voluntarily approaching the authorities, or seeking help for all the family; co-operation with investigating bodies, admissions of offending, co-operating with the administration of justice, and sparing the victims from any contested hearing.”

  1. [22]
    In R v C[15] a sentence of nine years was increased to 10 years for the offence of maintaining a sexual relationship with a circumstance of aggravation, following an appeal by the Attorney-General of Queensland.  The offending involved maintaining a sexual relationship with the offender’s daughter for two and a half years when the complainant was 13 to 16 years of age.  While the offending mostly involved penile intercourse there were, as the sentencing Judge acknowledged, some aspects of the offending in R v C that were more serious than the present case in the level of offending and the type of sexual acts involved.  The applicant and the offender in R v C were of similar age.  Like the applicant, the offender was the sole carer of his daughter.  Both had a comparatively minor criminal history and had not been imprisoned.  The sentencing Judge noted that the antecedents of the applicant and the offender in R v C were not particularly dissimilar.  In R v C there had been some use of violence but in most cases the complainant had submitted out of fear and because it was her father.  The sentencing Judge considered the main distinguishing feature of the present case from that in R v C was that the offender in R v C had pleaded guilty.
  2. [23]
    In referring to R v C, the sentencing Judge noted the statement of the Chief Justice (with whom Jerrard JA and White J agreed) that his review of the cases suggested that for roughly comparable offending and after allowing for a plea of guilty, a range generally commencing at about the level of 10 years’ imprisonment would apply.
  3. [24]
    Pertinent to the present appeal, the Chief Justice in R v C considered that 10 years’ imprisonment would mark the lowest level at which one could be sentenced for such offending where there was a plea of guilty.  A number of cases were referred to by the Chief Justice which generally supported that proposition.  In the course of his reasoning the Chief Justice commented that the offences against the offender’s own daughter when he was the sole carer, which is the same in the present case, rendered the offending more serious.  The Chief Justice considered the sentence of nine years with parole eligibility after four years was grossly disproportionate to the gravity of offending.  The appeal was allowed, the sentence of nine years was set aside, and the respondent was sentenced to 10 years’ imprisonment and convicted of a serious violent offence.
  4. [25]
    While the offending in R v C involved additional sexual acts making the offending more serious, the offender’s plea of guilty was an early one, he made admissions in respect of the majority of the offending to police and expressed remorse.
  5. [26]
    Although relatively dated, R v C has continued to be referred to by the Court of Appeal[16] as a relevant yardstick in sentencing for offending of this kind.
  6. [27]
    The sentencing Judge also referred to R v DBC.[17]  In that case the sentence imposed for the offence of maintaining an unlawful sexual relationship with the offender’s daughter was nine years with parole eligibility set at one third.  Lesser sentences were imposed for two counts of indecent dealing with a child and six counts of rape. His Honour noted that:

“In R v DBC; ex parte Attorney-General, the respondent was likewise in his early to mid-30s at the time of the offending conduct.  He had no prior criminal history.  The complainant was 11 or 12 years of age.  The offending was comparable to yours in that it had involved penile and digital rape and other indecent treatment over a period of about 17 months.  The main distinguishing factor between your case and that of DBC was the extent of cooperation with the investigation and the administration of justice of the respondent, demonstrating empathy for the complainant and remorse and shame.  The extent of the admissions made by that respondent attracted an application of the principles in AB v R (1999) 198 CLR 111.

Ultimately, the court in DBC concluded that the sentence did not fall outside the range of sentences that could have been imposed by the exercise of sound sentencing discretion, particularly in light of the respondent’s confessions that assisted his conviction on the maintaining account and secured his conviction on other accounts.”

  1. [28]
    The offender in R v DBC had also presented psychological evidence which suggested that his capacity to understand the nature of the offending conduct was likely to have been impaired due to his psychological condition following the death of his wife.[18]  The offending occurred once or twice a week for the period of offending.[19]  Muir J (with whom the Chief Justice and Holmes JA agreed) rejected the Attorney-General’s argument that the nine year sentence where a serious violent offence declaration was not made, was outside the range of sentences that could have been imposed by the exercise of sound sentencing discretion, particularly having regard to the offender’s confessions which had assisted his conviction on the maintaining count and secured his conviction on other counts.  Those mitigating circumstances are not present in this case.

Additional cases relied upon

  1. [29]
    It is not suggested by the applicant that the learned sentencing Judge was in error in his analysis of the cases before him or that he failed to take into account any relevant consideration, but rather, that having regard to cases post-dating those cases referred to the sentencing Judge, the sentence was manifestly excessive.
  2. [30]
    The applicant refers to the cases of R v BAO,[20] R v SBJ,[21] R v PAM,[22] R v BCW,[23] R v SCK,[24] R v Fenton[25] and R v HCF[26].  A number of the cases were circumstances where there had been a plea of guilty and a determination that the sentence was not manifestly excessive.  They give limited guidance as to the outside limits of the exercise of a sound sentencing discretion in a case such as this.  The case of R v SCK resulted in a sentence of 10 years being imposed with a serious violent offence declaration, after a trial.  In R v HCF and R v Fenton, sentences of nine years were imposed after a trial.
  3. [31]
    The case of R v BAO supports the fact that a sentence of 10 years or more after trial was open to the sentencing Judge.  The offender had pleaded guilty to one count of maintaining a sexual relationship with a circumstance of aggravation, one count of sodomy and one count of indecent dealing with a circumstance of aggravation.  The offender did not appear to have had the disadvantaged upbringing of the applicant and was older than the applicant, being 48.  The offender was a family friend and not in the position of a father or carer as is the case with the applicant, although his offending did involve a breach of trust.  The offender had no prior criminal history.  The offending had taken place over three years, longer than the present.  The offending involved requiring the complainant to perform oral sex upon him and him performing oral sex on her regularly, said to be on a weekly basis.  There were three acts of sodomy committed when the complainant was nine or 10.  There was digital penetration once or twice a week over the period of offending.  While the offending was serious, the offending of the applicant in the present case was generally of a more serious nature, although the complainant in the present case was older.
  4. [32]
    The early plea of guilty meant the sentencing Judge exercised his discretion so that no sentence as to a serious violent offence declaration was made and sentenced him to nine years.  Williams JA considered that the sentence imposed carried a sufficient discount for the guilty plea.  The application to appeal the sentence on the basis it was manifestly excessive was refused.  While Williams JA considered that when compared to R v C the sentence represented the upper range of the sentence, he did not consider it was manifestly excessive.
  5. [33]
    Relevant to the present case, Williams JA[27] agreed with the sentencing Judge’s remarks that had the applicant gone to trial, he could have been sentenced to at least 10 years’ imprisonment with the declaration that the applicant was convicted of a serious violent offence, as a realistic evaluation of the range after a trial.
  6. [34]
    In R v SBJ,[28] a sentence of nine years was imposed with parole eligibility after four years following an early plea of guilty.  Like the applicant, the offender was the father of the complainant, although not the sole carer.  He was of a similar age to the applicant.  The offending occurred when the complainant was 11 to 14 years of age.  Like the present case the offending involved penile intercourse, although it occurred more frequently than the present case.  The offending had ceased prior to it coming to the attention of the authorities.  Although the offender did not have a disadvantaged upbringing like the present applicant, there were a number of mitigating circumstances in his favour in addition to the plea of guilty.  The offender suffered a major depressive disorder and material provided to the court indicated he was unlikely to reoffend.  The offender had also made some admissions and sought counselling after the complaint was made.  The circumstances of that case do not suggest that the sentence in the present case was manifestly excessive.
  7. [35]
    In R v BCW,[29] the offender pleaded guilty to 14 sexual offences involving three children.  The offending was predominately with one child.  A sentence of nine years with parole eligibility after three years was imposed for the offence of maintaining a sexual relationship, with lesser concurrent sentences for the other offences which included sodomy.  The offender was of a similar age to the applicant and had a very minor, irrelevant criminal history.  The complainant was 10 to 14 years of age at the time of the offending and the offender’s stepson.  The offending generally involved the offender performing fellatio on the complainant and requiring the complainant to perform fellatio upon him and masturbate him approximately three times a week.  The offender did not sodomise the complainant although on two occasions caused the complainant to sodomise him.  The offending involved emotional blackmail and manipulation.  On two occasions, offending occurred in front of other young male children with apparent “indifference”.[30]  The offender’s wife and the complainant provided a victim impact statement which indicated the profound impact of the offending on the complainant and the rest of the family.
  8. [36]
    Holmes JA (as she then was) did not regard the sentence as manifestly excessive, commenting that the factual comparison between the cases to establish a hierarchy of heinousness was not helpful.  Holmes JA noted a number of mitigating circumstances that had to be weighed against the gravity of the offending.  The offender had a difficult childhood, supported by a reference of his mother, which had ended up with him being left by his father and new partner at a shelter.  He had a good work history.  He suffered from depression and anxiety and had difficulty with his sexual identity.  He had seen a psychologist after being charged, to deal with his distress and suicidal ideation.  He had shown remorse.  When those circumstances were however weighed against “the persistence of the conduct, the abuse of the relationship between H and the applicant, its profound effect on H, and the fact that some of the worse activities were performed in indifference, at best, to the presence of a young child”, Holmes JA concluded that the sentencing Judge had not erred in the exercise of his sentencing discretion.[31]  The Court refused the application for leave on the basis that the sentence was not manifestly excessive.
  9. [37]
    In the present case, the applicant did not have the benefit of the extent of mitigating circumstances that availed the offender in R v BCW in addition to the plea of guiltyThe case does not suggest a sentence in excess of 10 years in the present case was manifestly excessive.
  10. [38]
    In R v PAM,[32] a sentence of eight years with parole eligibility after three years following a plea of guilty was found by the Court of Appeal not to be manifestly excessive.  The sentence was found to be within the range of the sentencing discretion and leave was refused.  Given the limited argument presented by the offender who was self-represented and the concession that a head sentence of seven to eight years was appropriate by the offender’s counsel, the case provides little assistance to the present case.
  11. [39]
    Four cases relied upon were cases where the sentence was imposed after trial.
  12. [40]
    In R v SCK,[33] leave was given to appeal and the appeal was allowed due to an error by the sentencing Judge having been identified.  Fraser JA (with whom McMeekin J agreed) considered however that the re-exercise of the sentencing discretion did not warrant a different sentence from the sentence of 10 years’ imprisonment originally imposed.  In that case, the offender was convicted after a trial of maintaining a sexual relationship with the 12-year-old complainant for four months.  The fact that the offender had the complainant under his care was an aggravating circumstance.  The offender was a friend of the complainant’s mother and the offending occurred when he looked after the complainant.  The complainant was younger than the complainant in the present case, being 10 or 11 when rape and sodomy offences occurred.  The offender had first committed sexual offences against the complainant’s brother in his presence, which was a further serious aggravating circumstance.  The offence of maintaining related to the period when the complainant had turned 12.  It involved oral sex and anal rape as well as indecent dealing.  The offending was for a lesser period and was less frequent than in this case.  The offending did not involve a person in a parental role, unlike the present case, albeit that they were in a position of trust.  Unlike the present case, the offending involved manipulation of the complainant to groom the complainant from an early age.  Like the present case, there was no evidence of remorse.  The impact on the complainant was severe.  Given the difference in the level of offending from the present case, the sentence imposed supports the fact that the sentence in this case was within the sentencing discretion.
  13. [41]
    In R v Fenton[34] a sentence of nine years was substituted for a 10 year sentence imposed after a trial where factual errors had occurred.  In that case, the offence of maintaining a sexual relationship had occurred over 19 months, slightly shorter than the present.  The sentencing Judge had imposed a 10 year sentence on the basis that there had been an ongoing sexual relationship for three and a half years involving multiple incidents of rape which was found to be in error.[35]  The complainant was older than the complainant in this case, being 14 and 15 years old.  There was physical violence used on one occasion.  The offender was older than the applicant and had a more serious criminal history than the applicant in this matter, although it did not involve sexual offences.  In considering the sentence imposed, Holmes JA considered that it could not be safely assumed that the offending involved multiple acts of rape as the evidence of penetration did not support “countless” incidents of penetrative sex.  Holmes JA considered that the offender should be resentenced on the basis of maintaining a sexual relationship for 19 months involving many incidents of indecent treatment and rape.  Her Honour did not consider the circumstances were as serious as R v C or R v DBC.  Her Honour noted that the offender was not the father or stepfather of the complainant, although in a position of trust to some extent, that the complainant was not subjected to some of the grosser offending in R v C and that while there were incidents of rape, they did not appear to have been sustained or to have involved great force.  Further, having regard to the complainant’s age and that the offending was not as lengthy,[36] she considered that a sentence of nine years was appropriate.
  14. [42]
    The present case involved the complainant’s father, and the offending was more serious than in R v Fenton, involving penile intercourse on a more frequent basis for a period of 24 months, although there were no acts of violence in the present case.  R v Fenton does not assist the applicant by suggesting that the present sentence was manifestly excessive.
  15. [43]
    In R v HCF,[37] a sentence of nine years with no declaration of a serious violent offence was imposed on an offender who was 25 years and older when he offended.  He had no criminal history.  The sentence was imposed after a trial and there was no evidence of remorse.  The complainant was much younger than the present complainant being five to six years old when the offending started.  The offending went on for a decade.  The offender was the complainant’s uncle.  During the course of the maintaining period, the complainant was abused frequently, including about twice a week from the age of 14.  The offending was generally of a less serious nature than the present, involving rubbing of the penis on the complainant’s genital area, masturbating and ejaculating on her body with at least one act of penile penetration.  The offender was older than the applicant but like the applicant, had a good work history up until when he suffered a heart attack.  He was a father of five children.  The sentence of nine years was not found to be manifestly excessive.  Although the sentence was not said to be lenient, it does not support the fact that the present sentence was manifestly excessive.  The different nature of the offending involved and the fact that in the present case the applicant was the complainant’s father place it into a more serious category of offending, notwithstanding it continued over a much longer period and the complainant was considerably younger when the offending started.
  16. [44]
    The Crown referred to the recent decision of R v DBV[38] as supporting the sentence imposed.  In that case, a sentence of 10 years’ imprisonment was imposed after a trial for maintaining a sexual relationship with a child, with lesser sentences for other offences.  The Court of Appeal determined the sentence not to be manifestly excessive.  The offender was the stepfather of the complainant.  He was older than the applicant.  He had a prior criminal history, but not for sexual offending and had not spent time in custody.  The complainant was of a similar age to the present complainant, although was 11 years of age when the offending began.  The offending was for a longer period of three years than the present case but did not involve penile intercourse.  It did involve oral sex.  There was no evidence of remorse.  The offending had a severe impact upon the victim.  The offender had significant health issues with impaired cognitive status and memory to a significant deficit, which was accepted by the sentencing Judge as making prison more onerous for him.[39]  In reviewing the authorities, McMurdo JA commented that he did not consider the difference from the offending in R v C to be significant and rather, regarded the plea of guilty as more significant.  His Honour did not consider that the cases supported the appellant’s argument that the sentence was manifestly excessive, noting that:

“None of those cases provides significant support for the appellant’s argument.  All but Fenton were cases where there had been a plea of guilty.  Fenton was not in the position of a stepfather of the complainant, as was the present appellant.

The period of offending in this case was more than twice as long as that in Fenton.  Although Fenton is a relevant yardstick, it did not require the judge in this case to impose a sentence of less than 10 years’ imprisonment.”[40]

  1. [45]
    While the offending in R v DBV was for a much longer period, the offending in the present case was more serious and the applicant’s medical conditions were not such that his imprisonment would be more onerous than it was for other offenders.

Consideration

  1. [46]
    As the applicant’s counsel submitted, none of the cases analysed above involved the imposition of a 12 year sentence and could only support a sentence of 10 years.
  2. [47]
    While a sentence of 10 years was open in the present case and the sentence of 12 years was at the upper end of what might be regarded as appropriate in the circumstances for this type of offending, it has not been demonstrated to be manifestly excessive and outside of the sentencing discretion.
  3. [48]
    The above analysis of the cases demonstrates that it was within the sentencing discretion to impose the sentence of 12 years.  The offending involved the aggravating features of regular penile intercourse of the complainant over a protracted period where the applicant was the complainant’s father and carer, with little by way of mitigation.  The offending had a severe impact upon the complainant.  The offences were also domestic violence offences which is an aggravating feature enshrined in statute.
  4. [49]
    Section 9(10A) of the Penalties and Sentences Act provides that:

“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.”

  1. [50]
    In the explanatory notes to the Criminal Law (Domestic Violence) Amendment Bill (No. 2) 2015 the legislative intention in introducing the circumstance of aggravation was explained as follows:

“An aggravating factor increases the culpability of an offender which means that the offender should receive a higher sentence within the existing sentencing range up to the maximum penalty for the offence.  The amendment reflects community attitudes about the seriousness of criminal offences that occur in a domestic and family context and makes these offenders more accountable.”

  1. [51]
    In R v O'Sullivan and Lee; Ex parte Attorney-General[41] (R v O'Sullivan) the Court of Appeal considered the introduction of a number of amendments to the Criminal Code Act 1899 (Qld) (the Criminal Code) and the Penalties Sentences Act designating a number of offences as domestic violence offences which may be taken into account as a factor of aggravation.  As to legislative changes which have occurred including the insertion of s 9(10A) of the Penalties and Sentences Act in 2016, the Court stated that “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.”[42]
  2. [52]
    The present case does not concern manslaughter as was the case in R v O'Sullivan, but the legislative amendment also displays the community’s attitude towards sexual offences carried out against a child in a domestic setting.
  3. [53]
    While s 9(10A) of the Penalties and Sentences Act must be taken into account when determining the appropriate sentence, its significance in the present type of offending and particularly in considering the consistency of sentences imposed in comparable cases is not as significant as it might be for other offences.  As was submitted by the applicant’s counsel, its insertion does not lead to the conclusion that sentences in the present context must be more severe than before, given the legal and factual circumstances which were recognised as aggravating features of this type of offending.  In the factual context of the cases concerned for this type of offending, offending by a lineal descendant has long been recognised to be an aggravating circumstance, as identified by Jerrard JA in R v SAG.[43]  Circumstances of aggravation in relation to sexual offending against children by those who are lineal descendants or in a position of care were also enshrined for some offences, such as indecent dealing, in the provisions of the Criminal Code.[44]
  4. [54]
    The insertion of s 9(10A) of the Penalties and Sentences Act is not however regarded as merely declaring the existing law, notwithstanding the overlap of recognised aggravating features with domestic violence offences.[45]  It also demonstrates that the attitude of society to crimes such as the present since the decision of R v C has not weakened.  Taking advantage of a child, particularly your own child, is offending of the most serious order which undermines the fabric of society and is the ultimate betrayal of trust for the child concerned.  Any sentence imposed must reflect the gravity of that offending and act as an appropriate deterrent and denunciation, as well as accounting for other considerations relevant to sentencing in terms of mitigation and rehabilitation.  However, the amendment to s 9(10A) of the Penalties and Sentences Act would not of itself have justified a significantly more severe sentence in the present case compared to sentences imposed in the past, which were imposed in similar circumstances and where similar aggravating circumstances were taken into account.  In the present case, given the fact that the sentence of 12 years is not outside the exercise of sound sentencing discretion when the comparable cases which serve as a yardstick are considered, s 9(10A) of the Penalties and Sentences Act has little impact, although it serves to support a sentence being imposed at the upper end of that sentencing discretion.
  5. [55]
    I would refuse the application for leave.

Footnotes

[1]  (2004) 147 A Crim R 301; [2004] QCA 286 at [20].

[2]  [2003] QCA 134.

[3]  [2012] QCA 203.

[4]  [2021] QCA 189.

[5]R v Tout [2012] QCA 296 at [8] referring to Hill v The Queen (2010) 242 CLR 520 at [58]-[59].

[6] [2019] QCA 244 at [63]-[65].

[7]Cameron v The Queen (2002) 209 CLR 339 at [12]-[14].

[8] (2004) 147 A Crim R 301; [2004] QCA 286.

[9] [2003] QCA 134.

[10] [2012] QCA 203.

[11]  (2004) 147 A Crim R 301; [2004] QCA 286 at [19] (with whom Atkinson J and Philippides J agreed).

[12]  Accepting the factors put forward by Counsel.

[13] At [19].

[14]  At [20].

[15] [2003] QCA 134.

[16]  See for example: R v DBV [2021] QCA 227 at [66]; R v Fenton [2015] QCA 125 at [44]; R v BCA [2011] QCA 278 at [49].

[17]  [2012] QCA 203.

[18] At [5].

[19] The offender’s admissions were said to be of significant assistance to the prosecution of the charge of maintaining.

[20] [2004] QCA 445.

[21] [2009] QCA 100.

[22] [2011] QCA 36.

[23] [2014] QCA 340.

[24] [2016] QCA 34.

[25] [2015] QCA 125.

[26] [2021] QCA 189.

[27]  With whom McMurdo P and MacKenzie J agreed.

[28]  [2009] QCA 100.

[29]  [2014] QCA 340.

[30]  At [23].

[31] At [23].

[32]  [2011] QCA 36.

[33] [2016] QCA 34.

[34]  [2015] QCA 125.

[35] See [37]-[41] per Holmes JA.

[36] At [45].

[37] [2021] QCA 189.

[38]  [2021] QCA 227.

[39] At [61].

[40]  At [70]-[71].

[41] (2019) 3 QR 196; [2019] QCA 300.

[42]  At [93].

[43] (2004) 147 A Crim R 301; [2004] QCA 286 at [19].

[44]  E.g., Criminal Code ss 210 (2)-(4), 215(2), (4); but not in relation to the offences of maintaining a sexual relationship with a child or rape, which carry a maximum penalty of life imprisonment.

[45] R v O'Sullivan and Lee; Ex parte Attorney-General (Qld) (2019) 3 QR 196; [2019] QCA 300 at [96]-[97].

Close

Editorial Notes

  • Published Case Name:

    R v BDQ

  • Shortened Case Name:

    R v BDQ

  • MNC:

    [2022] QCA 71

  • Court:

    QCA

  • Judge(s):

    Morrison JA, McMurdo JA, Brown J

  • Date:

    10 May 2022

Appeal Status

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