R v SEA[2023] QCA 56

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  The applicant was 37 to 38 years old at the time of the offending dealt with by the primary judge.  She was 40 at the time of sentence.  She had no criminal history.  She pleaded guilty to 234 counts of sexual offending against children, mostly her own daughter, at a time when that child was four to five years old.  Some counts were also against a seven year old child of whom her co‑offender was the father.  These counts against her daughter were the particulars of a maintaining count in respect of her daughter.
2. [2]
   The applicant came from a broken home and says her father was violent towards her and her sister.  She left school in Grade 12 due to becoming pregnant.  She began taking drugs in high school.  She used amphetamines from age 17, along with heavy alcohol use.  Although she had a qualification in aged care administration and had done work in that area, she has spent most of her life unemployed.  She met her co‑offender on Tinder and at some time had sexual relations with him.  They lived in separate homes however.  He provided her with methylamphetamine (which she injected) each day.  She could not pay for this, and it is apparent that she struggled to pay normal household bills during the period of offending.  She appears, therefore, to have reached an understanding with her co‑offender such that between February 2018 and July 2019 she allowed him to sexually offend against her daughter.  The offending involved penetration to the child’s vagina and anus.  It involved forcing the child to perform oral sex and to masturbate the co-offender.  The offending was carried out for over an hour at a time.  The child was left screaming in pain, crying and distressed and on one occasion bleeding from an injury.  Sometimes her hands were bound together.  Sometimes she was gagged.  Sometimes she was handcuffed to a bed or a sex swing.
3. [3]
   The offending came to light because a friend of the applicant noticed that the applicant used a threat to visit the house of her co-offender as a way to discipline her child.  The child reacted with extreme fear and distress when this threat was made to her.  This caused the applicant’s friend to make enquiries of the child, and then go to police.  When police came to the applicant at the beginning of their investigation, she lied to them and blamed her sons as persons who might possibly have sexually abused her child.
4. [4]
   The applicant’s co-offender recorded a great deal of the offending and it is from those recordings that the details of the offending came.  As well as abusing the applicant’s child himself, the co-offender taught his seven year old son to sexually abuse the applicant’s child and the applicant joined in on some occasions with sexual abuse of the co-offender’s son.
5. [5]
   In my opinion the offending is within the worst category of cases for which the maximum penalty for maintaining is prescribed.^[1]  To quote from the lengthy, and with respect courageous, sentencing remarks:

“The oral description and the brief summary of the facts, of course, can’t do proper justice to the level of trauma suffered by the children the subject of these abuses. I have had the opportunity to view Exhibit 15, the USB stick, and saying what occurred is much easier than watching what occurred to this child. It is terrible. The screaming is awful. In the videos which is shown, [the applicant] is shown as being completely oblivious to her daughter’s pain and encouraging of the terrible acts and committing the terrible acts. When the child resists with her awful screaming and smacking, [the applicant] is seen saying about her own child, ‘She’s a strong little bitch.’ And if the child is screaming while she’s being raped, [the applicant] is shown upon the video holding the mouth of the child to muffle her screams, and whilst she holds the mouth of the child, she pans and looks towards the camera. There is awful howling from the child, and the child howls more, the mother smiles whilst looking at the camera. The child is heard to say ‘oh, mummy’. It is very powerful.”

6. [6]
   The offending is very much worse than that described in R v Mahony & Shenfield.^[2]  In that case a couple lured a 13 year old girl to their home and then abused her in a dreadful way for 15 hours before taking her back to her parents’ house.  The abuse in Mahony & Shenfield was very dreadful, as was the abuse of the applicant’s child in this case.  In this case the abuse was repeated time and time again, for periods sometimes over one hour, for 18 months.  In Mahony & Shenfield the Court of Appeal set aside a life sentence and substituted a term of 18 years imprisonment.  In my opinion the criminality of the applicant’s offending warranted a life sentence.
7. [7]
   The applicant’s co-accused also received a life sentence.  His parole eligibility date was deferred to 17 years.  That is, it was recognised (rightly) by the sentencing judge that his offending was worse than the applicant’s.  That does not mean that the applicant should not have been sentenced to life.  To cite that part of Veen (above) which was cited in Mahony & Shenfield:

“… [T]he maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v. The Queen. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category.” – [46].

8. [8]
   It is true that the applicant pleaded guilty.  The primary judge recognised that as something in her favour.  That certainly saved State resources.  It also saved a judge and a jury from having to hear and watch what would have been absolutely horrific evidence.  Perhaps it saved the applicant’s child and the co‑offender’s child from dealing with police and having to give pre-recorded evidence; the applicant’s child in particular may have been too young to do this.  However, the primary judge was sceptical about remorse.  That scepticism was based on the length of time she spent offending against her own daughter; her lying to police initially, and her blaming other factors, such as her drug addiction and her co-offender for her offending.  In terms of what is indicated by her plea, there was certainly an overwhelming Crown case in the recordings made by the co-offender, so that it is hard to see how there could have been any defence mounted at trial.  I cannot see any fault with the way the primary judge dealt with the applicant’s plea and the idea of remorse.
9. [9]
   The primary judge also recognised that the applicant’s lack of criminal history was something to be taken into account in her favour.  In the face of the overwhelming criminality of the offending, it is hard to see this being a decisive factor.
10. [10]
    At the sentence hearing below, counsel appearing for the applicant asked the judge to impose a sentence of 18 years, pointing out that, were such a sentence to be imposed, the effect of the law relating to serious violent offenders meant that she would be eligible for parole at about the same time she was eligible for parole on a life sentence.  First, I think a sentence of higher than 18 years was warranted when one compares the case of Mahony & Shenfield.  Second, I think it is quite appropriate that the applicant be on parole for the rest of her life.  While of course she is not to be punished for her history of drug use from high school, the reality is that this woman has never lived sober in the community as an adult, and has never lived a law-abiding life in the community as an adult.  The risk of her relapsing into drug use is high.  This must go to her risk of re-offending and be part of a consideration of protection of the community.  She is, apparently, not a paedophile; her offending in this case was motivated by her addiction to drugs.  In those circumstances, parole is an important safeguard.
11. [11]
    At the hearing of this appeal the applicant appeared in person.  She indicated that she was unable to think of anything to say to advance her appeal.  The only ground of appeal was that the sentence was manifestly excessive.  I joined in the Court’s order refusing leave to appeal for the above reasons.
12. [12]
    BODDICE AJA:  On 7 October 2021, the applicant pleaded guilty to one count of maintaining a sexual relationship with a child.  The applicant further pleaded guilty to 58 counts of rape, eight counts of attempted rape, 28 counts of indecent treatment of a child under 16, under 12, under care, lineal descendant, 20 counts of making child exploitation material, and 26 counts of common assault.^[3]  All were domestic violence offences.  The applicant also pleaded guilty to a further count of indecent treatment of a child under 16, under 12 in respect of another child.

13. [13]
    On the same date, the applicant was sentenced to life imprisonment for the maintaining count.  She was convicted and not further punished in respect of each of the remaining counts.  Some 825 days spent in pre-sentence custody was declared as time served in respect of the sentence imposed.
14. [14]
    The applicant sought leave to appeal her sentence.  If leave was given, the applicant relied on one ground, that the sentence was manifestly excessive.
15. [15]
    At the hearing, the application for leave to appeal was dismissed.  These are my reasons for joining in that order.

Offences

16. [16]
    The maintaining count covered a period of 16 months.  The complainant was the applicant’s daughter.  She was aged four to five years at the time of the commission of the offence.
17. [17]
    The applicant’s offending was committed as part of a perverted sexual relationship with her then partner and co-offender, SN.  One of the indecent treatment counts related to offending against SN’s son.
18. [18]
    The applicant’s offending involved the use of restraints and violation of the complainant digitally, penilely and with objects.  The conduct persisted despite screams of pain and the child begging for it to stop.  Those calls in distress were met by laughter from the applicant and SN.  On 22 occasions the offending against the applicant’s daughter was filmed, with the filming spanning many hours.
19. [19]
    The sexual acts performed on the applicant’s daughter included oral sex and digital, vaginal and anal rapes.  The applicant’s daughter was also forced to masturbate SN and forced to perform sexual acts on SN’s son.  That offending was accompanied by violence, emotional manipulation and threats (including anal rape).
20. [20]
    The consequence of the offending was profound.
21. [21]
    The applicant, when first spoken to by police, denied the conduct and later sought to blame others.  The applicant also told her daughter not to say anything.

Sentencing remarks

22. [22]
    The sentencing judge expressly took into account the applicant’s early pleas of guilty, prejudicial upbringing and lack of prior criminal history.
23. [23]
    Notwithstanding those mitigating factors, the sentencing judge placed little weight on suggestions of remorse, noting that the applicant’s initial response was not suggestive of remorse and included seeking to blame two of her other children for the conduct.
24. [24]
    The sentencing judge also recorded that whilst the applicant took responsibility for her behaviour, she attributed some blame to SN and to her use of methylamphetamine.  Further, there were elements of planning and grooming in the offences, which were contributed to by the applicant.
25. [25]
    The sentencing judge found that whilst the applicant’s offending involved a lesser number of offences, over a shorter period of time, and a lesser number of complainants, than SN, the level and type of abuse committed by the applicant, directly against her own daughter, was of such a high level that it was properly to be characterised as being conduct in the most serious form of offending.

Consideration

26. [26]
    A consideration of the applicant’s offending supports a conclusion that a sentence of life imprisonment for the maintaining count fell within a sound exercise of the sentencing discretion.
27. [27]
    The applicant’s offending involved extreme and persistent depravity, committed against her own daughter, when only four and five years of age.  The conduct involved the grossest form of breach of trust by a parent.  The conduct persisted despite obvious pain and pleas for it to stop.  The conduct was recorded, and the child was made to make statements suggestive of enjoyment.
28. [28]
    Whilst it is undesirable to categorise offending as the most serious, as there is always the possibility of others committing even worse offending, the sentencing judge’s categorisation did not lead to error in the present case.  The applicant’s offending involved criminality of such depravity, committed in circumstances of such an egregious breach of trust against a helpless child, as to warrant a sentence of life imprisonment, notwithstanding early pleas of guilty and a lack of prior criminal history.
29. [29]
    Further, the difference in the applicant’s offending to that of SN was appropriately acknowledged by the allowance for an earlier parole eligibility date in the applicant’s case.
30. [30]
    The sentence of life imprisonment was neither unreasonable nor plainly unjust.

Conclusion

31. [31]
    The sentence imposed was not manifestly excessive.
32. [32]
    BRADLEY J:  I joined in the order refusing leave to appeal.  I concur with the reasons recorded by my colleagues.