R v CDF[2024] QCA 207

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  On 11 August 2023 the applicant was convicted on his own pleas of guilty of the following offences:

   1. Count 1: That between 1 June 2019 and 1 June 2022 he maintained an unlawful sexual relationship with his daughter, a child under 16 years, with the aggravating feature that it was a domestic violence offence.
   2. Count 2: That on a date unknown between 3 December 2021 and 1 June 2022 he raped his daughter, that offence having the aggravating feature also that it was a domestic violence offence.
2. [2]
   The proceeding was then adjourned for the purpose of obtaining a psychological report.
3. [3]
   After a sentencing hearing on 17 November 2023 the applicant was sentenced to 10-years imprisonment in respect of count 1 and 7-years imprisonment on count 2.  The sentence imposed on count 1 carried with it the imposition of a serious violent offence declaration and that declaration was made.  The sentences were ordered to be served concurrently.  425 days of presentence custody were declared as time already served under the sentence.
4. [4]
   The applicant applies for leave to appeal against his sentence on two bases.  First, he contends that the sentencing judge erred in fact by finding that the applicant did not wear a condom when he offended upon the complainant.  Second, he contends that the sentence imposed was manifestly excessive.
5. [5]
   For the following reasons, I conclude that although the sentencing judge did make the factual error for which the applicant contends, the appropriate sentence for the applicant’s offending is either the same sentence or a greater sentence.  There being no reason to conclude that the applicant might wish to pursue an appeal in those circumstances, the appropriate order is to dismiss the application for leave to appeal.

The circumstances of the offending

6. [6]
   The applicant was the complainant’s biological father.  They resided together in the family home with her mother and her two younger brothers.
7. [7]
   The offending in respect of count 1 occurred over a three-year period from when the complainant was seven years old to when she was ten years old.  The applicant was almost 56 years old when the offending commenced.
8. [8]
   During the three-year period, the applicant maintained an unlawful sexual relationship with his daughter in which he routinely engaged in penile/vaginal rape of his daughter often on a weekly basis although there were periods of time when it was not weekly.  The offending occurred in the master bedroom of the family home on occasions when the complainant’s mother was not home.  The applicant initiated his offending by the use of a code phrase to his daughter which she understood to be an instruction for her to remove her pants and underpants, to get on her father’s bed on all fours facing the middle of the bed with her exposed bottom and vagina facing her father.
9. [9]
   The offending in respect of count 2 was the last occasion on which the applicant raped his daughter.  The complainant recalled that it was a weekend and her father was folding washing.  After her father used the code phrase the complainant went into her parents’ bedroom, removed her clothing and positioned herself in the way earlier described at which time her father raped her.  At some point she told her father that she did not want to do it and he desisted.  She returned to her play.  Later that day she told her father that she did not want to do it anymore.  He instructed her not to tell anyone and that was the last time any sexual contact occurred.
10. [10]
    The offending came to light when on the evening of 4 August 2022 the complainant went into her mother’s bedroom and gave her a note which revealed to her mother what her father had been doing to her.  After reading the note her mother went to the complainant’s room where the complainant disclosed the offending.  Her mother called the police and reported the disclosure the next morning and arranged to meet police at a local medical centre for the complainant to be interviewed.
11. [11]
    The complainant’s mother participated in a pretext phone call with the applicant during which he denied the offending.  When interviewed by police the applicant also denied the offending, advancing the false story that he and the complainant had masturbated themselves in front of one another in his bedroom on and off for a period of approximately two years.  He told police that that conduct had occurred approximately once a week with the last episode occurring approximately six to eight months before.  He told the police that he had not ejaculated on the complainant and claimed that he did so in his underwear or towel.  He told police that he had never penetrated his daughter’s vagina.
12. [12]
    Throughout the interview the applicant used words which normalised his offending conduct.  He suggested that the complainant initiated the conduct using the code phrase.  He considered his conduct with the complainant to be their little secret.

The sentencing remarks

13. [13]
    The applicant was arraigned on the two-count indictment on 11 August 2023 after the dates on the indictment were amended by reducing the period of time over which the offending occurred.  The matter was then adjourned for the purpose of obtaining a psychological report.
14. [14]
    The matter had been listed for the pre-recorded evidence of the complainant to be taken.  It resolved on the day of the pre-record but prior to the complainant actually having to give evidence.  At the hearing before the sentencing judge the prosecutor described the plea as timely and suggested that it evidenced cooperation with the administration of justice.
15. [15]
    The psychologist report obtained by the applicant revealed that he still had no insight into his offending behaviour in that he attributed as a factor contributing to his offending that there had been strain in his marital relationship after his spouse started spending more time with the children and her siblings.  Further he still described his offending behaviour in the same way as he had to the police.
16. [16]
    The sentencing judge took into account the applicant’s plea of guilty including that the plea meant the complainant ultimately did not have to give evidence and be cross-examined.  The sentencing judge regarded the plea as having significant utilitarian value which was objectively to the benefit of the community, but the sentencing judge also took into account that the timing of the plea still meant that the child and her family must have formed the expectation that she would have to give evidence and attended at court expecting to give evidence.  The sentencing judge did not regard the plea as carrying with it any indication that the applicant was remorseful for his conduct, but said that it would reduce the sentence that he otherwise would have imposed had the matter been taken to trial.
17. [17]
    The sentencing judge took into account the psychologist’s report and considered that it revealed the applicant had a “disturbing lack of insight” into the applicant’s very serious rape of his daughter and his corruption of her over a three-year period.  The sentencing judge found that the report revealed that the applicant’s plea of guilty should not be regarded as showing any remorse.  The sentencing judge returned to the psychological report noted that there was no diagnosis or identification of factors that contributed to the offending.
18. [18]
    The sentencing judge also thought that the applicant’s conduct at the time of the police complaint also revealed that the applicant showed no remorse for his offending.  He denied the offending and then minimised the conduct by a false story about sexualised interaction with the complainant.  The sentencing judge did note that the offending came to an end prior to police involvement and that the applicant had desisted when the complainant asked him to.
19. [19]
    The sentencing judge considered victim impact statements provided by the applicant’s daughter and his wife which set out the devastating effect of his offending on both the complainant and his wife.  His Honour noted also that the complainant’s two younger brothers would be affected in that he thought it was impossible to think they could ever have any normal relationship with their father knowing about his terrible exploitation of their oldest sister.
20. [20]
    The sentencing judge said that he regarded the applicant’s sexual offending against his natural daughter as very serious offending.
21. [21]
    In considering what the appropriate sentence was, his Honour said that he took into the matters set out in s 9 of the Penalties and Sentences Act 1992 (Qld) and in particular the provisions of s 9(4) and the considerations identified in s 9(6).  Section 9(6) provides:

“In sentencing an offender to whom subsection (4) applies, the court must have regard primarily to—

1. the effect of the offence on the child; and

2. the age of the child; and

3. the nature of the offence, including, for example, any physical harm or the threat of physical harm to the child or another; and

4. the need to protect the child, or other children, from the risk of the offender reoffending;

5. any relationship between the offender and the child; and

6. the need to deter similar behaviour by other offenders to protect children; and

7. the prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community; and

8. the offender’s antecedents, age and character; and

1. any remorse or lack of remorse of the offender; and

10. any medical, psychiatric, prison or other relevant report relating to the offender; and

11. anything else about the safety of children under 16 the sentencing court considers relevant.”

22. [22]
    In that regard the sentencing judge observed (emphasis added):

“This is a case to which section 9(4) of the Penalties and Sentences Act applies and under subsection (6), the Court must primarily have regard to the effect of the offence on the child.

It has been very substantial both in terms of her mother’s description of it, her own description of it and the degree of corruption that is shown by you being able to implement a code word that would cause her to present herself naked sexually in a bedroom simply through the use of that code word. The effect on the child throughout the three-year course of the offending was very profound. As her mother has said, she lost years of her childhood. It is hoped that she will one day be able to fully recover from this but it will have a profound and ongoing effect. The age of the child, she was seven to 10 years old.

That is at the younger end of ages of children being offended against although I acknowledge that there are some cases that have been set out that have younger children – (c) – the nature of the offence: I note that there is not any evidence of direct physical harm to the child but the fact is unprotected sex with a child had the risk of communication of sexual diseases and risk of physical harm to the child – (d) – the need to protect the child or other children from the risk of the offender reoffending: Given your denial of the offending and your lack of remorse, I have considered that there is a high need to protect the community from you until you have an appreciation of the reasons why you committed this offence and have a plan that will be monitored in some way to ensure that you do not offend again – (e) – the relationship between the offender and the child: This was the most profound relationship that an offender could have with a child.

It is extremely aggravating and your wife’s victim impact statement sets out how destructive it has been – (f) – the need to deter similar behaviour by other offenders to protect children: That is general deterrence and I consider that that is a feature that that my sentence must reflect. The prospects of rehabilitation: I note that [the psychologist] says that you are treatable but plainly any such treatment requires an acknowledgement and insight into what you in fact done. So the prospects of rehabilitation would have to be extremely guarded – (h) – your antecedents, age and character: You are a mature man. You have prior good antecedents. You have worked hard all your life.

This offending is the first criminal offending of any type but it was offending over the course of three years and that has to have an effect upon any view that can be taken of your underlying character – (i) – any remorse or lack of remorse of the offender: I conclude that whilst you had the insight to recognise that cross examination of your child would cause her stress and that you spared her that and whilst it is difficult to describe that as remorse in the circumstances, I accept that it has some relevance to this heading but otherwise you appear to lack any remorse – (j) – any medical, psychiatric or other relevant report: I have noted the effect of [the psychologist’s report] and anything else about the safety of children under 16 the sentencing Court considers relevant.

I have mentioned the severely aggravating effect of you having corrupted the child in the way that you did. You were only able to do that because you were her biological father and it developed from her absolute trust in you which you betrayed. …”

Specific error of fact

23. [23]
    The applicant contended that the sentencing judge erred in fact by finding that the applicant did not wear a condom when he offended upon the complainant.  He submitted that this Court should conclude that the factual error meant that the sentencing discretion had miscarried and, accordingly, this Court should re-sentence the applicant to a lesser sentence.  He suggests:

    1. the sentence in relation to count 1 be set aside and in lieu thereof he be sentenced to 9 ½ years’ imprisonment.
    2. the declaration in relation to count 1 that the conviction is declared a conviction for a serious violent offence be removed.
    3. a parole eligibility date be set at the halfway mark: 18 June 2027.
    4. 425 days spent in presentence custody between 18 September 2022 and 16 November 2023 be deemed time already served under the sentence.
24. [24]
    In order to determine whether the sentencing discretion miscarried as contended, it is necessary to consider the evidence before the sentencing judge; and, insofar as it touched on this question, the course of written and oral submissions before the sentencing judge; the sentencing remarks and the way such a finding, if made, was deployed in his Honour’s remarks.  I do so below.
25. [25]
    First, there is nothing in the agreed statement of facts one way or the other as to whether the applicant used a condom during his offending conduct, or even whether he ejaculated (whether at all, or in the complainant).
26. [26]
    Second, the written submissions of the Crown referred to relevant aspects of the agreed statement of facts without making any assertion that the applicant had not worn a condom during the offending.  Under a subheading “considerations for sentence” the written submissions asserted (emphasis added):

“The court would have regard primarily to the considerations in s 9(4) to (6) of the Penalties and Sentences Act. These include:

• The reverberating impact upon the complainant and her family.
• The gross breach of trust; the defendant has betrayed his parental relationship in an abhorrent way. That he instructed the complainant not to tell anyone represents emotional manipulation of her.
• The tender age of the complainant, who was only 7 when the abuse commenced. The age disparity and position of trust meant that the applicant did not need to resort to violence to commit the offences. It is clear the complainant became sufficiently sexualised that the deployment of a code phrase was sufficient to ensure her compliance. Equally, the age of the complainant meant that pregnancy was not a genuine risk.
• The high level and protraction of offending, which involved persistent penile rapes over a 3-year period. The continued lack of remorse and insight demonstrated by the defendant's minimised admissions and denials of the extent of his offending in the psychological report. This substantially erodes prospects of rehabilitation and there is a corresponding need to protect children from the risk the defendant presents.”

27. [27]
    I observe that the submission cannot be read as an allegation by the Crown that the applicant did not use a condom when he raped the complainant.  The submission could only be read as a submission that even if a condom was not used and even if the applicant had ejaculated in the complainant, there was no risk of pregnancy for the submitted reason.  The submission identified the absence of a feature which, in other cases, might have been seen as an aggravating feature, namely a risk of pregnancy to the victim of a sexual assault.
28. [28]
    Third, the written submissions for the applicant did not make any reference to condom usage or pregnancy risk.
29. [29]
    Fourth, during the course of the oral submissions Counsel for the Crown drew the sentencing judge’s attention to R v LBC^[1] in support of his ultimate submission that, if the applicant been convicted after a trial, a sentence of 12 to 14 years imprisonment would have been appropriate, but that in the circumstances of the applicant’s guilty plea, a sentence of ten years imprisonment would be appropriate.  The following exchange between the sentencing judge and counsel for the Crown then occurred:

“HIS HONOUR: Sorry, just before you go on. One of the features in that case was that the complainant did not describe the applicant wearing a condom or whether he ejaculated or not. In this case is there any evidence that he wore a condom?

MR NEAVES: No, your Honour.

HIS HONOUR: And is there any evidence one way or the other whether he ejaculated?

MR NEAVES: No, your Honour.

HIS HONOUR: All right. But obviously what flows from not wearing a condom is the risk of transmission of sexual diseases. That – so that aggravating feature is shared with LBC. Sorry, go on.

MR NEAVES: Your Honour, in LBC, though, your Honour will see that in about the middle of that paragraph that I’ve taken your Honour to, about two lines after the really, really bad quote, there is a note that there was an acceleration, such that it – a stage it happened five times every week for a couple of months. So there was certainly some higher frequencies at times as well. Of course, arguably that might mete against my client’s conduct happening perhaps more regularly more often and perhaps my learned friend’s submission is a fair one about the notion that one can compare these things too closely.”

30. [30]
    The sentencing judge was correct to observe that one of the features of R v LBC was that the complainant had not described the applicant as wearing a condom or stated whether he ejaculated or not.  Counsel for the Crown was correct to respond to the sentencing judge’s enquiry that there was no evidence that the applicant wore a condom during his offending conduct and counsel was also correct to respond that there was no evidence one way or the other that the applicant had ejaculated during any of his offending conduct.  Following that response, the sentencing judge seemed to have made an illegitimate inference about the existence of an aggravating feature in the case before him, namely that the applicant had not worn a condom and that gave rise to the risk of transmission of sexual diseases.  Further, the sentencing judge made the incorrect assessment that such an aggravating feature was shared with LBC.  There is no reference in R v LBC to the existence of such an aggravating feature.
31. [31]
    Fifth, the sentencing judge’s error was not picked up and corrected either by counsel for the Crown or counsel for the applicant and the assumption which he made during the course of submissions was expressed in his findings as appears from the emphasised part of the quote from his Honour’s reasons at [22] above.
32. [32]
    Sixth, the respondent submitted to this Court that the finding was justified having regard to s 132C of the Evidence Act 1977 (Qld).  The respondent submitted that the sentencing judge was entitled to draw the inference which he did from the material before him.  For reasons already advanced, that submission must be rejected.  It was also submitted that the absence of demur to the illegitimate inference made by the sentencing judge was sufficient to engage the section.  I reject that argument for the following reasons:

    1. Section 132C relevantly provides:

1. “(1)
   This section applies to any sentencing procedure in a criminal proceeding.

2. The sentencing judge or magistrate may act on an allegation of fact that is admitted or not challenged.

…

5. In this section—

allegation of fact includes the following—

1. information under the Penalties and Sentences Act 1992, section 15 …;

…

4. other information or evidence.”

2. The essential character of sentence hearings is accusatorial.^[2]  Consistently with that understanding, “allegation of fact” must be understood as a reference to a factual suggestion advanced by the Crown or contained in information received by the sentencing judge from the Crown.
3. In the present case, counsel for the Crown could not be taken to have advanced the factual suggestion that the applicant did not wear a condom when he offended upon the complainant, nor was such a suggestion contained in the information which the sentencing judge received from the Crown.  Even if, as a matter of law, the Crown could be taken to have made an allegation of fact by silence in particular circumstances – a question upon which I am doubtful – this was not such a case.
4. Accordingly, there was no “allegation of fact” and s 132C was not engaged.
5. All that has happened here is that the sentencing judge in discussion with counsel for the Crown floated an erroneous proposition of fact and no one corrected it.  It would have been better had the proposition been corrected, but the failure to do so was not sufficient to permit the sentencing judge to act on it.

33. [33]
    The result is that I accept the submission that the sentencing judge made an error of fact.  However, not all errors in the sentencing of offenders vitiate the exercise of the sentencing judge’s discretion.^[3]  As to this:

    1. The passage from the sentencing remarks which reveals that the sentencing judge had erroneously concluded that the applicant had engaged in unprotected sex with the complainant appears in the quotation at [22] above.
    2. The relevant remarks were made in the context of sentencing remarks which addressing each of the considerations listed in s 9(6) of the Penalties and Sentences Act.  In particular, the sentencing judge expressed the remarks which included the factual error in the specific context of addressing s 9(6)(c), which requires the Court to have regard to “the nature of the offence, including, for example, any physical harm or the threat of physical harm to the child or another”.
    3. It is apparent that what the sentencing judge gleaned from his erroneous assumption concerning unprotected sex was that the nature of the offence was such that there was a risk of communication of sexual diseases and risk of physical harm to the child.  If that error was immaterial then it might be ignored and this proposed ground of appeal would not need to be considered further.
    4. But in making a determination that a specific error was not material it would be wrong to seek to assess whether or not the error actually influenced the outcome.^[4]  In Baxter v The Queen, Latham J observed that a material error is one which must be more than trivial or immaterial, it must have the capacity to infect the exercise of the sentencing discretion, regardless of whether it can be demonstrated that the error has in fact influenced the sentencing outcome.^[5]  If an error is not material in that sense, it might be difficult to say that the sentencing judge’s discretion has actually miscarried in the House v The King^[6] sense.
    5. It is impossible to reach the conclusion that the sentencing judge’s factual error was not material.  The error which he made was something which had the capacity of being regarded as an aggravating feature and thereby infecting the exercise of the sentencing discretion.
34. [34]
    The fact that material error of fact has been established does not mean that the application for leave to appeal should be allowed, and the applicant re-sentenced by this Court.  In Kentwell v The Queen^[7] the High Court explained:

    1. at [35]:

“In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed.”

2. at [43]:

“The result of the [appellate court’s] independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. The occasions calling for the [appellate court] to grant leave, allow an offender’s appeal and substitute a more severe sentence are likely to be rare. Were the Court to grant leave in such a case, convention would require that it inform the appellant of its intended course so that he or she might abandon the appeal.”

35. [35]
    The salient features of the applicant’s offending have been identified above.  I observe:

    1. The offending was objectively very serious.  It involved persistent and repeated penile/vaginal rapes of the applicant’s biological daughter over a three-year period, starting when she was aged 7.
    2. The offending was frequent over the three-year period.  The applicant raped his daughter often on a weekly basis.
    3. The offending involved a grave breach of trust, and the corruption of the child to the extent that she became habituated to the applicant’s grossly disordered sexual desires, acquiescing to them upon the use by him of a code word.
    4. The applicant was almost 56 when the offending commenced.  The penile/vaginal rape of a pre-pubescent girl by a mature man is an intrinsically violent act.  The applicant’s submission that there was no accompanying or additional violence merely amounts to an identification of the absence of what would have been an aggravating feature.
    5. The victim impact statement revealed that, as would be expected, the applicant’s daughter was profoundly harmed by the offending.
    6. The offending involved domestic violence offending.
    7. The applicant lacked any genuine remorse.
    8. Save to say that he must have realized what he was doing was wrong since he instructed his daughter not to tell anyone, once, at her request, he ceased offending against her, he lacked any insight into his offending behaviour.
    9. The applicant should get some benefit from his plea of guilty.  However, the extent of that benefit should be attenuated by its relative lateness and the fact that it cannot be attributed to genuine remorse.  Some regard should be given to its utilitarian benefit.
    10. The applicant’s antecedents were identified by the sentencing judge, and do not suggest the need for any significant mitigation.
36. [36]
    I accept the respondent’s submission that –

    1. a significantly condign punishment was called for, that reflected general and specific deterrence as well as the community’s denunciation for such abhorrent protracted sexual conduct between a father and his young daughter; and
    2. protection of the community was also a relevant sentence feature in this case, having regard to the applicant’s continued lack of insight into his sexual urges.
37. [37]
    Counsel for the applicant^[8] and for the respondent^[9] referred this Court to a number of cases as relevant signposts.  I do not think this case warrants any detailed comparison of the circumstances of the present case with those of the comparable cases.  In my view, Brown J (as her Honour then was) was correct to observe in R v BDQ^[10] that even allowing for a plea of guilty, sentences for offending even roughly analogous to the present case should commence at about the level of 10 years’ imprisonment.  In this case the identity and youth of the applicant’s victim, the nature, frequency, and period of the offending, the lack of remorse and insight, and the risk to the community meant that a greater sentence would also have been regarded as warranted in law.  I regard the sentence which the sentencing judge imposed for count 1 to be the minimum sentence which could be regarded as warranted in law for that offending.
38. [38]
    I conclude that the appropriate sentence for the applicant’s offending is either the same sentence or a greater sentence.  A lesser sentence would not be the appropriate sentence for the applicant in this case.  Having regard to the passages from Kentwell identified at [34] above, I form the view that this Court is not required to re-sentence the applicant.  There being no reason to conclude that the applicant might wish to pursue an appeal in those circumstances, the appropriate order is to dismiss the application for leave to appeal.^[11]

Manifest Excess

39. [39]
    In light of the analysis conducted above, there is no utility to embarking upon a consideration of this proposed ground of appeal.

Conclusion

40. [40]
    I would order that the application for leave to appeal be dismissed.
41. [41]
    BROWN JA:  I agree with the reasons of Bond JA and the order proposed by his Honour.
42. [42]
    KELLY J:  I agree with the reasons of Bond JA and the order proposed by his Honour.