R v LBC[2023] QCA 178

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with the reasons of North J and order his Honour proposes.
2. [2]
   NORTH J:  On 6 September 2021 in the District Court at Cairns the applicant pleaded guilty to maintaining an unlawful sexual relationship with the complainant, a child under 16 years, over a period of two years and almost seven months between 1 January 2014 and 23 July 2016.^[1]  Because of the relationship between the complainant and the applicant it was a “domestic violence offence”.  The applicant was sentenced to 10 years imprisonment, and a conviction was recorded.  As a consequence of the sentence of 10 years the conviction was a “serious violent offence”.^[2]  So the applicant must serve 8 years of the sentence before he is eligible to be considered for parole.
3. [3]
   The applicant seeks leave to appeal the sentence. The sole ground is that the sentence was manifestly excessive.  He contends instead for a sentence of nine years with no recommendation for parole.^[3]

Circumstances of offending

4. [4]
   The hearing proceeded upon an agreed Statement of Facts.^[4]  The applicant was aged between 32 and 34 at the time of the offending.  He was the biological father of the complainant who was aged between 10 and 12 years at the time of the offending.  The family, comprising the applicant, the complainant, her mother and two younger brothers lived on a farm in North Queensland.  It was a working farm growing exotic fruit and the applicant worked as a labourer and fruit picker.
5. [5]
   The offending commenced at the home on the farm, though the complainant did not recall exactly when.  She was a virgin when the offending commenced.  On occasions the applicant would burn foliage and branches near the rear of the house.  This was done at night time.  The complainant recalled that the first occasion of touching occurred near a fire when only she and her father, the applicant, were present.  He touched her in the area of her vagina.  The initial offending involved touching on the outside of her vagina.  On one occasion as she sat in her father’s lap he whispered to her not to tell anybody about it or he would get in trouble; the complainant was approximately 10 years of age.  The offending continued and the touching escalated to inside the pants, “skin-on-skin”.  She described penetration by the fingers which hurt because the applicant’s fingernails were long.  It is not known how often this conduct occurred, but both the complainant and her mother described fires of this nature occurring at regular intervals.  The applicant also touched the complainant on occasions inside the family home.  This touching involved the vagina and penetration of her vagina with his fingers and on one occasion he performed oral sex upon her.  Offending inside the house occurred when the family was asleep or when other members of the family were not present.  The applicant spoke of one occasion when she was with her father inside the work utility that he instructed her to “touch herself” but she did not understand what he meant.  Rapes involving penile penetration occurred when both were in the family car.  Penile penetration never occurred in the family home.
6. [6]
   Between 2014 and 2016 the applicant would pick up a neighbour from her home and transport her to her work and later drive her home.  This was a paid arrangement and on some of these trips the complainant accompanied her father.  When unaccompanied the applicant would make the complainant sit in the front seat when he would make her touch his penis and have her grab his penis and “go up and down”.  She was also made to perform oral sex on him which she described as disgusting.  The applicant would grab her head and push it down towards his penis with force so that his penis would enter her mouth.  On one of these trips the first occasion of rape by penile penetration occurred.  The applicant parked the vehicle in an aisle of fruit trees and moved into the back seat.  He stripped the complainant’s clothes, pulled down her shorts and penetrated her vagina with his penis.  She described it as hurting “really, really bad”.  After this occasion the complainant described offending as “accelerating” and occurring with regularity.  It happened five times every week for a couple of months, but sometimes on a trip it wouldn’t happen.  She described the conduct on these occasions as similar to the first occasion, involving penetration of her vagina with his fingers, licking her vagina and ultimately penile penetration.  On some occasions she said that it hurt her so much that she would kick out at her father with her legs and feet but he would not stop.  The complainant did not describe the applicant wearing a condom nor whether he ejaculated or not.  Following the first occasion of penile rape the complainant was able to speak of a further occasion when he drove the car to collect fish and chips.  They drove to the back of the town and parked by a river.  In the back seat of the car he licked her vagina, penetrated her with his fingers and put his penis inside her vagina.  Apart from the pain caused by the penetration of her vagina there was no other violence perpetrated by the applicant and the complainant neither observed or recalled any instances of bleeding or injury.
7. [7]
   The arrangement for the transportation of the neighbour concluded in 2016 after she finalised her employment in July of that year.  No further offending occurred at any location.
8. [8]
   The offending occurred over a period of approximately two years and at first involved touching at or around the family home.  The penile rapes did not occur over the entire maintaining period but escalated and occurred frequently.
9. [9]
   At the time of these events the complainant thought “fathers doing stuff … to their daughters” was normal and she said that it was not until she commenced high school in 2017 that she realised that it wasn’t supposed to happen.  In the last term of 2018 she told some school friends what had happened and when, during the Christmas in 2018, she stayed with her grandmother and aunts in Innisfail she revealed what her father had been doing to her.  She made a complaint to police in January 2019.
10. [10]
    The applicant participated in a pretext phone conversation and a formal Record of Interview on 15 February 2019.  He denied the offending on both occasions and proffered an explanation that the applicant simply did not want to live at home any more, did not want to complete her chores and must have been lying.  During cross examination on the occasion of the pre-record of her evidence on 11 December 2019 applicant’s counsel put these instructions to her.

The applicant’s antecedents

11. [11]
    The applicant was educated to Year 11 and after leaving school worked primarily as a farm labourer.  He was 38 years at the time of sentencing and had not had any contact with his children or the complainant’s mother since the complaint was made.  The applicant had a criminal history.^[5]  Aside from a minor drug related conviction in 2006 and two breaches of bail where no conviction was recorded there were two relevant offences.  On 21 February 2016 in the Magistrates Court at Innisfail the applicant was convicted of assault occasioning bodily harm.  The victim was his wife, the mother of the complainant, who suffered bruising as a consequence of a punch to the head and being grabbed by the arms and being moved about.  He was sentenced to two years probation.  On 13 November 2016 he was convicted of an assault upon one of his sons and was sentenced to 12 months probation.  Both were held to be domestic violence offences.

The findings and sentencing remarks

12. [12]
    Her Honour noted that the plea to the count of maintaining was entered on the morning of trial.  Originally the applicant had been charged on an eight count indictment, but as a result of the presentation of the new single count indictment some of the counts from the original indictment became particulars of the maintaining and two counts were not pursued.  Her Honour observed that the guilty plea showed that the applicant had accepted responsibility for his conduct and saved the community the cost of a trial which had been estimated to take up to four or five days.  In that way the plea had some utilitarian value.  But her Honour pointed out that it had not spared the complainant from having to give evidence and be cross examined when her evidence was pre-recorded and noted that during the cross examination she was distressed as it was suggested to her that no sexual conduct had occurred and that she made up the allegations because she did not want to live at home or do chores.  Her Honour was sceptical about whether the plea was a consequence of genuine remorse as he had multiple opportunities to make admissions about the offending.  Nevertheless, her Honour said that she took into account the plea of guilty and reduced the sentence she would otherwise have imposed by reason of the plea.  She described his conduct as particularly premeditated and predatory and observed that the applicant groomed the complainant and that she became normalised to his sexual abuse of her.  She noted that the applicant had participated in pre-text telephone calls and a record of interview with police in which he denied the offending and suggested that the complainant simply did not want to live at home any more and must have been lying.

13. [13]
    Her Honour referred to s 9(6) of the Penalties and Sentences Act 1992 (Qld) (“the Act”) and addressed them in her remarks.  She also had regard to s 9(10A) and noted that this was a domestic violence offence and an aggravating factor.  She referred to the applicant’s criminal history and the convictions of assault which were domestic violence offences.  Her Honour noted that there was no presentence custody to be declared, that the applicant had had no contact with his ex-partner or children since the offending came to light and no medical or psychological evidence was placed before her suggesting any impairment or diminishment of the applicant’s mental functioning.

14. [14]
    Her Honour noted that the complainant was very young during the period of maintaining and was approximately 12 years at the end of the period, that the offending had occurred over a lengthy period of approximately two years during which the offending was persistent and regular and escalated in its seriousness.
15. [15]
    The penile rapes (which were usually preceded by separate digital rapes and performing oral sex on her) were described by her Honour as extremely serious offending which, in her view, was a very serious example of the offence of maintaining.  Her Honour noted that the complainant was the biological daughter of the applicant and his conduct involved a gross breach of trust and the emotional manipulation of the victim.  In conclusion her Honour said that the plea of guilty and the sparing of some witnesses from having to give evidence at the trial involving a  degree of cooperation with the administration of justice operated to mitigate the penalty, but in circumstances where there is no suggestion of the applicant voluntarily approaching the authorities to seek help for his own offending the absence of remorse.  In her Honour’s view general deterrence and denunciation were particularly significant considerations in view of the objective gravity of the offending.  She noted there was no evidence that the applicant had taken any tangible steps towards rehabilitation by way of counselling nor was there any evidence of insight apart from the plea of guilty.

The contentions in this Court

16. [16]
    In support of the contention that the sentence was manifestly excessive, counsel for the applicant, in her written outline relied upon R v SCQ [2017] QCA 49, R v Fenton [2015] QCA 125, R v HCF [2021] QCA 189, R v SAU [2006] QCA 192, R v DBC; Ex parte Attorney-General (Qld) [2012] QCA 203.  Counsel’s submission was that a sentence of nine years was indicated by those authorities and should be substituted for the sentence of ten years.  In argument before the Court she repeated that submission.  In relation to this contention counsel drew attention to a comment by the learned sentencing judge:^[6]

“Having considered carefully all of the relevant authorities, in my view, they support a sentence of 10 years imprisonment. It’s difficult to see in a case like this, after allowing for the plea of guilty, that the Court could responsibly proceed below 10 years imprisonment, particularly given the features I have identified.”

Counsel submitted that her Honour appeared to be adopting some phraseology of de Jersey CJ in R v C^[7] and that her Honour erred in applying the reasoning of the then Chief Justice in a case involving more serious offending than this case.

17. [17]
    Counsel for the respondent submitted that the sentence was not manifestly excessive and pointed to features of R v BDQ [2022] QCA 71 and R v DBV [2021] QCA 227 and also to the offending identified by her Honour:^[8]

"a. the applicant was a mature man in his thirties;

b. he was the biological father of the complainant child;

c. the breach of trust was the most significant;

d. the complainant child was normalised to the offending such that she believed what was occurring was normal between a father and daughter;

e. the offending was committed solely for the applicant’s own sexual gratification;

f. The offence was a domestic violence offence;

g. the offending was regular, protracted and persistent;

h. the applicant instructed the complainant child at the commencement of the offending period not to tell anyone or he would get into trouble, to that extent there was a degree of emotional manipulation, beyond the exploitation of the relationship of trust that exists between a biological father and his own daughter;

i. the severity of the offending conduct escalated over the period of the maintaining offence;

j. the offending comprised many acts of

1. touching the complainant on the outside and inside of her clothing on the vagina;
2. digital penetration of her vagina;
3. having the complainant touch his penis and masturbate him;
4. his performing oral sex upon her;
5. his forcing her to perform oral sex upon him; and
6. penile/vaginal rapes.

k. The maintaining period was 2 years and 8 months;^[9]

l. The complainant child was aged only 10-12 years old;

m. The offending occurred in the family home, outside at the fire or in the applicant’s car, in a manner described as “particularly premediated and predatory”

n. The offending hurt the complainant. She reported the digital penetration of her vagina hurt as a result of the applicant’s long fingernails, the first penile rape she described as hurting “really really bad” and on some occasions the penile rape hurt so much that she kicked out at him in an attempt to get him to stop, but he nonetheless persisted;

o. The plea of guilty was a late one, coming on the eve of trial after the complainant child had had her evidence taken at a pre-recording, been subject to cross examination, which caused her distress, and at which it was put to the complainant that she was making up the allegations;

p. The applicant had two entries of significance on his criminal history one for assault occasioning bodily harm against the complainant’s mother pre-dating the offending period and one for an offence of common assault against one of his sons committed months after the conclusion of the offending period.”

(footnotes omitted)

The law

18. [18]
    The sole ground of appeal is that the sentence was manifestly excessive.  In R v Turner^[10] Morrison JA (with whom Mullins P agreed) said:^[11]

“[49] To succeed on an application for leave to appeal on the basis of manifest excess, it is not enough to show that the sentence imposed was different from, or even markedly different from, other examples of sentences in other cases. Rather, it is necessary to demonstrate that there must have been a misapplication of principle or that the sentence imposed is “unreasonable or plainly unjust”.

[50] Sentencing judges are to be “allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”. Cases that are said to be comparable do not mark with precision the outer bounds of a sentencing judge’s discretion in imposing a sentence in another case. At best they stand as yardsticks.”

(Footnotes omitted)

19. [19]
    To similar effect in R v CCU^[12] Morrison JA (with whom Fraser JA and Mullins JA agreed) observed:

“[50] … [W]hat must be demonstrated is that the difference is such that there must have been a misapplication of principle or that the sentence is “unreasonable or plainly unjust”.

[51] As was said by the Court in R v Jackson and in R v Clarke in relation to the ground of manifest excess:

‘To succeed the applicant must demonstrate that the sentence imposed was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate that the one in fact imposed. There is no one “right” penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range, or is otherwise affected by an error of fact or law.’”

(Footnotes omitted)

20. [20]
    In this context, regard might be had to some observations of Bond JA with whom Morrison JA agreed, in R v BEB^[13] concerning consistency in sentencing^[14] and the regard that might be had to comparable cases^[15] where his Honour said:^[16]

“[85] Consistency in sentencing is an important goal in sentencing, but the consistency which is sought is consistency in the application of the relevant legal principles. Appellate intervention on the ground of manifest excessiveness is not warranted unless, having regard to all of the relevant sentencing factors, including 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 principal.

[86] Examination of sentences which have been imposed in comparable cases may provide a relevant yardstick by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles, but the requirement to have regard to the sentences imposed in comparable cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed; rather, the range of sentences imposed in the past may inform a broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle.”

(Footnotes omitted)

Discussion

21. [21]
    Before turning to a consideration of the primary submission that the sentence imposed was manifestly excessive, I turn to the submission that the sentencing judge erred in adopting the comments by de Jersey CJ in R v C.  It is important to note that her Honour was expressing a view of the seriousness of the offending in light of the circumstances and evidence before her and in that context announcing the sentence to be imposed.  Her Honour’s comment while echoing some of the words used by de Jersey CJ in another appeal did not demonstrate or suggest that the offending in R v C was comparable nor different in seriousness from the seriousness of this instance.  Her Honour’s comment was not an observation concerning comparability but merely the adoption of some convenient phraseology to aid in the explanation of her reasons for the sentence.  They do not suggest error or misapplication on principle by her Honour.
22. [22]
    One of the cases to which the learned sentencing judge was directed is SAG [2004] QCA 286 and to the reasons of Jerrard JA^[17] where his Honour identified significant matters that might substantially increase the sentence for the offence of maintaining^[18] and those that might mitigate penalty.^[19]  It must be kept in mind that his Honour’s list in both instances was not exhaustive; his Honour was careful to identify an inclusive list in both cases.  Nevertheless it is telling how many matters identified by his Honour as aggravating features or factors are present in this case and that none of the mitigating factors are present here.
23. [23]
    The appellant’s offending occurred over protracted periods of two years or more, over which time the offending increased in seriousness.  The factors identified by counsel for the respondent^[20] bear this out and of particular significance are the regular penile rapes and accompanying offending that occurred approximately five times a week over a period of two months.^[21]  The cases relied upon by the applicant do not appear to be as serious as the offending in this case and do not persuade me that the sentence imposed was manifestly excessive.  The offending identified in the SCQ^[22] occurred over a period of approximately as long as here but the conduct was not as serious as this case when regard is had to the number of rape offences.  The offending in Fenton^[23] was undoubtably serious with features comparable with circumstances here but occurred over a shorter period of 19 months during which time there were “many incidents of indecent treatment and rape”^[24].  Nevertheless the identified conduct does not appear to be as serious as this case and the defendant sentenced was a younger man with no prior relevant history.  SAU^[25] was sentenced following a plea of guilty which was accepted to indicate remorse.  There was no evidence of physical violence but the conduct did include regular penetrative intercourse over a period of 12 months.  Plainly there are distinguishing features from this case.  DBC^[26] concerned a sentence imposed following a plea of guilty where the offending concerned the defendant’s daughter.  The plea of guilty was an early plea and the offender had been co-operative and made relevant admissions assisting the prosecution in particularising the count of maintaining.  Plainly there were distinguishing features applicable from those here.  Contrasting with those decisions which pre-dated the insertion of s 9(10A) of the Penalties and Sentences Act, the circumstances of BDQ^[27] and DBV^[28] relied upon by the respondent in this Court concerned circumstances comparable in submissions with those that apply here.  In BDQ the offending period was approximately two years by a father against his biological daughter aged between 12 and 14 years.  A sentence of 12 years imprisonment was imposed for the maintaining which involved penile penetration which occurred approximately once every two weeks over the period of two years.  The sentence was imposed after a five day trial which required the complainant to undergo cross examination.  That case was undoubtedly serious with features comparable with those applicable here.  To like effect the sentence imposed in DBV followed a five day trial concerning 22 offences one of which was maintaining over a period of approximately three years and four months and 5 counts of rape (by the applicant penetrating the complaint’s mouth with his penis)^[29] the sentence imposed was 10 years.
24. [24]
    The applicant’s offending was extremely serious and called in the circumstances for a significant sentence.  No misapplication of principle is evident.  The sentence of 10 years imposed by her Honour with the consequence of a “serious violent offence” declaration cannot be said to be unreasonable or plainly unjust.

Order

25. [25]
    The application for leave to appeal should be refused.
26. [26]
    HENRY J:  I agree with the reasons of North J and the order his Honour proposes.