THE COURT: The applicant pleaded guilty in the Supreme Court at Brisbane on 26 October 1998 to four counts of supplying a dangerous drug with a circumstance of aggravation, four counts of indecent treatment of a girl under 14 years, six counts of indecent treatment of a child under 16 years with a circumstance of aggravation, three counts of wilful exposure, six counts of unlawful carnal knowledge of a girl under 16 years with a circumstance of aggravation and one count of maintaining a sexual relationship with a girl under 16 years with a circumstance of aggravation.
For the offence of maintaining a sexual relationship and for each offence of unlawful carnal knowledge of a girl under 16 years with a circumstance of aggravation he was sentenced to 12 years imprisonment, and to lesser periods for the remaining charges with all periods of imprisonment to be served concurrently. He claims the sentences imposed were manifestly excessive.
[2]
The offences commenced in 1987 when the complainant was just 7 years old and continued until her 16th birthday in 1996. The facts were placed before the sentencing judge in a Schedule which was not tendered as an exhibit. In late 1987 or early 1988, when the complainant was in Grade 2 or 3 and aged just 7 and the family was living at X, outside Bundaberg, the applicant took the complainant into the master bedroom on the waterbed; he rubbed his erect penis on the outside of her vagina. (Count 1)
In mid-February 1988, when the applicant was in Grade 3, the family moved to Y, outside Bundaberg. The applicant told the complainant to go into the bathroom and lean over the sink. He followed her in and was naked; he stood behind her and rubbed his erect penis against the outside of her vagina, ejaculating. (Count 2)
The applicant and the complainant had a shower together at Y; the applicant masturbated himself in front of the complainant and had her play with his testicles. (Count 3)
The applicant threatened the complainant that if she told anyone he would kill her family and then her. The indictment contained no specific count in respect of these facts.
The applicant rubbed his penis on the outside of the complainant's vagina in the shower from behind, whilst the complainant was standing with one leg up on the bath tub, until ejaculation. (Count 4)
As the complainant was lying on her back on the bed at the Y home, the applicant rubbed his penis against the outside of her vagina, ejaculating; he said he was sorry and that it would never happen again. (Count 5)
In the bathroom at the Y home, the applicant lay on top of the complainant on the floor rubbing his penis against her vagina; the complainant's brother came in and the applicant told him they were wrestling. On another occasion, in the middle of the night, the applicant came into the complainant's bedroom which she shared with her brother; he tried to touch her but she resisted and he stayed for about half an hour. No specific counts related to these two incidents contained in the Schedule.
Whilst swimming [at K], the applicant took his penis out, removed the complainant's togs and rubbed his penis on the outside of her vagina until ejaculation. (Count 6)
The complainant saw a handwritten suicide note from the applicant on top of a drawer in his room: he wanted to kill himself, the family and the complainant because she had told people about what he had done to her. The applicant made her stand up naked against his bed and lean over; he then rubbed his erect penis on her vagina until ejaculation. The indictment contained no specific count in respect of these allegations in the Schedule.
Whilst at Y, the applicant allowed the complainant to watch a pornographic video and gave her a joint of marijuana. He massaged her with baby oil whilst she lay on a towel on the lounge room. He kissed her on the vagina, rubbed his penis on her vagina until ejaculation, used a washer to wipe himself and then gave it to her. (Counts 7-9)
After the complainant commenced Year 8 at Y, the applicant put chocolate syrup and honey on his penis and made the complainant suck it, ejaculating in her mouth. She nearly vomited. (Count 10)
Whilst the complainant was still in Grade 8, the applicant gave her some marijuana to smoke at Y, rubbed baby oil on her back and penetrated the complainant's vagina with his penis for the first time; it hurt her and she rolled over; the applicant hit his back on a box and hurt himself but continued to penetrate the complainant, ejaculating inside her. There was blood coming from her vagina. (Counts 11-12)
Whilst the complainant was still in Grade 8, she sat on the applicant's bed looking at books about puberty when the applicant licked her vagina. On another occasion, whilst her mother was asleep, the applicant came into her bedroom at Y and wanted to touch her. She discouraged him and her mother woke up. No charges were laid in respect of this conduct.
Whilst still in Grade 8 at Y, the applicant came into the complainant's room in the middle of the night when she had a friend sleeping over. The applicant took her into the lounge room and had sex with her "doggie style"; she was on all fours and he ejaculated inside her. Her friend walked outside five minutes later but did not see anything; next morning she asked the complainant what had happened, and the complainant told her. (Count 13)
On another day when the complainant was still in Grade 8 she wagged school and spent the day at the beach with the applicant. They returned home and noticed the complainant's mother was home. The applicant told the complainant to wait in the shed. He returned to the shed and on a tarp on the floor had sexual intercourse with her until ejaculation. The indictment contained no specific count in respect of this matter.
The complainant's mother and the applicant separated when the complainant commenced Year 9 and the applicant moved to a caravan park. The complainant and her brother went shopping with the applicant; on their return he took her into the caravan bedroom, removed her clothes and had intercourse with her until ejaculation; he then realised she had had her first period. (Count 14)
The complainant moved to a high school nearer the caravan. The applicant had sexual intercourse with her at the [M] property, on an orange towel on the ground. On another occasion, before the complainant's mother had moved into the caravan, the applicant had sexual intercourse with the complainant until ejaculation on a temporary bed whilst she had her period; the complainant had to clean up the blood and sperm. (Count 15)
The complainant's mother found a job in the area and moved into the caravan. Whilst she was at work, the applicant was smoking marijuana, offered some to the complainant and put on a pornographic video. He licked her vagina and then had sex with her until ejaculation. (Count 16-19)
On another occasion, the applicant had the complainant suck his penis and ejaculated in her mouth. The applicant told police that this occurred twice at the caravan. The indictment contained no specific count in respect of these facts.
On yet another occasion, the applicant showed the complainant a pornographic video, and made her suck his penis and then had sex with her until ejaculation. The owner of the property realised they were doing something illicit; she saw the applicant doing up his pants and the complainant hiding behind curtains naked. (Counts 20-23)
Other acts in the Schedule, not the subject of individual counts, were as follows. When the complainant was in Grade 8 or 9 at the applicant's mother's place, the applicant had sexual intercourse with her. When she was about 12 or 13 at Y, whilst her mother and brother were shopping, the applicant lent her over the kitchen table and had sex with her. When she was 8 or 9, the family went camping in one tent; the applicant on two separate nights rolled on top of her and rubbed his penis on her vagina until ejaculation.
Count 24, maintaining an unlawful relationship with the circumstance of aggravation that in the course of the relationship the applicant had unlawful carnal knowledge of the complainant, a girl under 16, who was under his care, covered all the acts outlined in the Schedule which occurred on or after 3 July 1989. The offence of maintaining under s 229B of the Criminal Code was not created until 3 July 1989 so that the period of the maintaining charge extends from 2 July 1989 until 4 August 1996 when the complainant turned 16.
The indictment presented at trial was the culmination of successful negotiations between the prosecution and the defence. The prosecutor below noted:
[3]
"... The prisoner gets the benefit of that in that it's a plea of guilty and the complainant didn't have to give evidence at the committal nor did she have to give evidence here. It was an option that if there was a challenge to what she says that the Crown was willing to call her on the sentence and she's in fact present in court."
[4]
In her victim impact statement, the complainant said that the applicant:
[5]
"... has made death threats against myself and my entire family and anyone that I knew and cared for, he has instilled in me a fear so great that I often get quite paranoid. For instance, I am now constantly looking around to see if there is any chance that someone might be able to get or kill me. I can't go out unless I have my dog with me or someone that I know really well. Whenever I get into the car I always check the backseat to see if there is anyone waiting to get me. When I was working I would often finish half an hour before my train. In the meantime I sat there paranoid that B or someone else was going to come and get me. I would sit with my back to the steel caging and check that the only way that someone would be able to get me is from the front, where I would see them."
[6]
"... obviously knew what he was doing was wrong, because he held me responsible for the lives of all of the people that I love and care for. Telling me that he would kill all of my family and me last if I ever told anyone, made me feel an extreme guilt that releasing my secret would have everyone around me die. This fact made it extremely difficult for me to confess my secret to my mother when she asked me. Because of this guilt I thought that it was all my fault and it made me feel embarrassed when someone knew what he had been doing to me. I felt a great sense of shame and guilt that I had let my family down."
[7]
The applicant admitted much of his conduct in a record of interview with police and agreed that:
[8]
"I told her that I wouldn't like her mother to find out, yes. And I was worried about anyone finding out about it."
[9]
He denied threatening the complainant but conceded writing a suicide note "because of everything that had happened, everything that was done, and I thought the best way if I can't do anything else then if I wasn't there it couldn't happen any more." He left the note in his bedroom but was not aware whether or not the complainant had read it. At one stage, he had a shotgun and contemplated suicide whilst the children were at school but did not have the courage to pull the trigger.
He had oral sex with the complainant at least 15 times and had her perform oral sex on him about the same number of times, but only ejaculated in her mouth once. He penetrated her about 20 or 25 times, commencing when she was in Grade 8. The complainant asked him to stop on a couple of occasions: "She didn't enjoy it but she didn't act or fight off as in disliking it either." He agreed that it was very possible she was scared.
The applicant said:
[10]
"Because out of everyone over the years, [the complainant's] always been the closest person to me and I've done nothing but hurt the person who I wanted to be the closest to me."
[11]
"Do you think [the complainant] deserved to be treated in this way? -- No, I don't.
[12]
The applicant told police his conduct may have been the result of losing his natural children when his marriage broke up; his counsel submitted at sentence he had been a victim of sexual abuse from his own father.
[13]
The applicant submits that the learned sentencing judge erred in imposing terms of imprisonment of 12 years in respect of the offences of unlawful carnal knowledge of a girl under 16 with a circumstance of aggravation in that, although the terms were concurrent, the effect of such a sentence is to doubly punish the applicant for acts beyond those charged in each offence: Pearce v The Queen.[1]
The potential problem of double punishment for the same acts arising out of individual charges which are also particulars of another offence was identified in Pearce. The majority, McHugh, Hayne and Callinan JJ, noted that the general principle, that it is wrong to punish an offender twice for the commission of acts which constitute the same elements in two or more offences, must yield to any clear contrary legislative intention.[2] A clear contrary legislative intention appears in s 229B(6): see R v S.[3] Indeed, the applicant's counsel concedes as much but submits that nevertheless the sentence of 12 years imprisonment on each count of unlawful carnal knowledge with a circumstance of aggravation is so heavy that it must reflect facts beyond the individual offence committed; it must take into account the other offences charged in the indictment and it has the effect of doubly punishing the applicant.
When sentencing for multiple offences involving one complainant and a connected course of conduct, it is appropriate to impose concurrent sentences, provided that the overall sentence imposed adequately reflects the seriousness of the criminal conduct; it should never be thought that multiple crimes can be committed with little or no increase in punishment: see R v Gage.[4]
This approach was accepted by Gaudron and McHugh JJ in Griffiths v The Queen.[5] The issue really is whether the sentence imposed of 12 years imprisonment for each offence of unlawful carnal knowledge with a circumstances of aggravation was in the circumstances manifestly excessive. We will return to this point later.
[14]
The applicant claims the learned sentencing judge failed to fairly deal with a factual conflict as to whether or not the complainant was threatened by the applicant. The applicant filed affidavit material in this appeal as to his discussions with his barrister at the sentence hearing, thereby waiving privilege. An affidavit from his barrister was subsequently filed. In the end, there is no conflict between the applicant and his barrister as to what occurred and no complaint is made by the applicant about the competence of his barrister.
The applicant consistently disputed making any threats to the complainant, firstly to the police and later in his instructions to his lawyers. His barrister gave him sound advice as to his options. The applicant gave instructions that he denied making threats to the complainant, hoping that the prosecution would not contest that claim. Prior to sentence he was advised that if the prosecution contested his claim, he would have to decide whether to have the complainant cross-examined and whether to give evidence and be cross-examined himself about the alleged threats. He was reasonably advised by his barrister that he was more likely to obtain a lighter sentence by the benefit of not putting the complainant through cross- examination than if he lost that benefit but the court accepted that the threats were not made. The applicant was adamant in his instructions that he did not wish to have the complainant cross-examined.
At the sentence the prosecutor told the judge that the indictment was the result of negotiation, that the applicant was entitled to the benefit of his plea of guilty and that he had not required the complainant to give evidence; if her account as presented by the prosecution was disputed he would call her; she was present in court for that purpose. Three statements of the complainant were tendered, in addition to her victim impact statement. The applicant's record of interview was also tendered.
Defence counsel at sentence submitted that the judge should not consider those portions of the complainant's statement which were not included in the Schedule. The prosecutor said he was not relying on any allegation not contained in the indictment but was tendering the statements to give the judge the flavour and background; the uncharged sexual acts other than the allegations of sodomy (which were denied and not relied upon by the prosecutor) were also relevant to the maintaining charge under s 229B of the Criminal Code.
Defence counsel then said that the applicant disputed that the complainant was threatened "but upon instructions that's as far as I can take that because - and it's been his express intention throughout this whole process to create as little trauma to the complainant as possible. In other words, he didn't want any form of contested sentence."
Her Honour correctly analysed the problem saying:
[15]
"Either he pleads to it and he's sentenced on the basis that these things have happened - and I take into account that he hasn't ... caused the complainant to be cross-examined - or if he doesn't there are consequences that flow from it."
[16]
The consequences to which her Honour referred were no doubt the necessity to hear evidence on the issue; if the complainant gave evidence and was cross-examined, the applicant would lose the benefit of not having required the complainant to give evidence. It is not reasonable to infer from her Honour's comments that she was indicating she would impose a heavier sentence if the complainant were cross-examined; the distinction is significant: see Siganto v The Queen.[6] Nor is there any suggestion in her Honour's comments that could reasonably have lead the applicant or his legal representatives to believe her Honour had pre-judged the issue and indeed that submission has not been made.
In response to her Honour, defence counsel said:
[17]
"Well, it is resolved in that he does not wish to put her in the witness box, have her ---
[18]
Her Honour: Right. So in other words, he's not disputing it.
[19]
Defence counsel: Yes, your Honour, in that context. Now your Honour mentioned the victim impact statement as well.
[20]
Defence counsel: There are certain things that are in dispute in that, for example in the third paragraph words such as 'force' is used. Now the defence or on behalf of [the applicant] I take issue with that, for two reasons.
[21]
Her Honour: Just before you go on, I just want to ask [the prosecutor] something. Mr Meredith, you didn't call the victim on the basis -----
[22]
Prosecutor: No, no. I should make it clear I would have called her if there was a dispute about the threats made to kill -----
[23]
Prosecutor: ----- and she's in court and I'm ready to call her if - but I take it that he's not pressing that. As to the force -----
[24]
Her Honour: Well, he's not pressing it, but in a - he's asking me - it seems to me that he's asking me to think that he's not pressing it only to avoid her being cross-examined, not because they're accepting it as true."
[25]
Her Honour correctly noted that the conflict was one for her to resolve beyond reasonable doubt as required by R v Morrison.[7] The prosecutor commented that the judge may, of course, not find in the prosecution's favour but if the applicant did not wish the complainant called then he, as prosecutor, would ask the judge to find beyond reasonable doubt that the threats had been made.
Her Honour correctly affirmed that defence counsel's submissions that threats had not been made allowed the prosecution to call the complainant in order to prove the threats and adjourned for 15 minutes, saying to defence counsel:
[26]
"... So you can't have it both ways. You really have to work out how you are going to approach this sentence. You'll have to work that out with your client, but I can't have you making the submission that it's not your client's fault that she's going to be called because of the way you're making the submissions. The responsibility - he won't get the advantage of her not having been called if she has to be called because of the way the submissions are being put.
[27]
Now it's a difficult thing to explain to your client. You're going to have to explain it to your client, work out his instructions, and work out what to do."
[28]
During the adjournment, defence counsel explained to the applicant that he had two options: the first was to continue to deny the allegations of threats; the complainant would give evidence and be cross-examined; the applicant would also probably have to give evidence; if he chose this course, then in counsel's opinion the judge "given her present attitude" would find the allegations proved and the applicant would have lost the benefit of not requiring the complainant to give evidence.
The second option was to admit the allegations, in which case he would still receive the benefit of remorse in not causing the complainant any further trauma. His barrister reasonably advised him that the latter option was in his best interests and the applicant gave instructions to adopt that course.
The applicant had given his lawyers a bundle of letters and cards sent to him by the complainant over some years which were in very affectionate and loving terms. Defence counsel reasonably decided that to produce them to the court would be detrimental to the applicant's cause as they demonstrated the thorough corruption of the complainant and nothing more.
The applicant in this appeal has filed affidavits from his mother and [R] (apparently the applicant's wife) to the effect that they did not notice any fear in the relationship between the applicant and the complainant; the complainant offered to be a surrogate mother if [the applicant's wife] could not have children. Bearing in mind the applicant's plea to the charges before the court, this affidavit material does not assist his claims and is consistent with the view taken by defence counsel at sentence: it demonstrates the extent of the complainant's confusion and the dysfunctionality of their familial relationship caused by the applicant's sexual abuse of his stepdaughter from an early age over a lengthy period. The applicant knew of that evidence prior to his sentence and it was readily available to him; he also knew prior to the day of sentence that the issue of threats was likely to arise on sentence. This evidence is neither new nor cogent; it should not be received by this Court. In any case, it would not have affected the advice given by the applicant's barrister at sentence, which the applicant accepted.
When the court resumed, defence counsel told the court:
[29]
"... on behalf of my client we're content to state that we don't contest that the allegations of threats having been made were made and I think I can clear up very quickly what I indicated just before in relation to force. ... Originally rape was charged. That was dropped to unlawful carnal knowledge and although there is some oblique reference to forcing her [in her] victim impact statement there are, I believe from the Crown no allegations that any threats of physical force were ever made - sorry, that no physical force was ever done on the complainant.
[30]
The Prosecutor: Yes, your Honour. There was no force used and that is implicit in the change of the charge from rape to unlawful carnal knowledge."
[31]
This case highlights the care that must be taken by judges when a dispute as to relevant facts arises on sentence. However, the applicant was represented by competent counsel, the judge fairly and correctly analysed the relevant issues and the proper procedure for their resolution; the prosecutor pointed out that the judge would not necessarily resolve the issue in favour of the prosecution; defence counsel told the applicant of all options but reasonably advised that it was likely the judge would find the allegations of threats proved; the applicant acted on that advice and withdrew his denial of the threats in order to benefit from the mitigating factor of not having required the complainant to give evidence. The applicant made an informed decision on proper and reasonable legal advice, and there has been no miscarriage of justice. He is not now entitled to alter that decision because he is unhappy with the sentence he received.
[32]
The applicant submits that the learned sentencing judge acted on a wrong factual basis when she said in her sentencing remarks:
[33]
"It appears that there were over 100 occasions of sexual intercourse that you had with [the complainant] after the first occasion that I mentioned."
[34]
The prosecutor in submissions below noted that there were allegations from the complainant of many more incidents of unlawful behaviour which were not covered by individual counts in the indictment but were covered by the maintaining charge; many were admitted by the applicant in his record of interview where he said he penetrated the complainant about 20 to 25 times, committed oral sex on her about 20 times and on a lesser number of occasions had her commit oral sex on him. The prosecutor submitted that although it was vague as to how often things occurred, "it must be something well over 100": he did not allege over 100 occasions of sexual intercourse. Her Honour made a factual error in sentencing the applicant on the basis that there were over 100 occasions of sexual intercourse.
Mrs Clare, for the respondent, spiritedly submitted that the error was one of no consequence, but despite the undoubted seriousness of these offences in any case, the maintaining charge is more serious if sexual intercourse occurred on over 100 occasions rather than there being over 100 sexual acts. The factual error was of significance; the learned judge sentenced on a wrong factual basis and this Court must exercise its sentencing discretion afresh.
[35]
The applicant was 41 years of age at the time of sentence and between 30 to 39 at the time of the commission of the offences. He had no relevant or noteworthy criminal history. He showed remorse during his interview with police making significant admissions; his plea of guilty was timely and the complainant was not required to give evidence. After being charged, he sought psychiatric assistance, although no psychiatric material was tendered at sentence.
The offences commenced when the complainant was only seven years old and spanned nine years; penetration first occurred prior to puberty in the context of showing the complainant pornographic videos and giving her marijuana. The conduct continued beyond the complainant's 16th birthday when it ceased to be unlawful. The offences involved a shocking breach of trust by someone whom the complainant looked to as a father. She was robbed of her childhood and adolescence by her step-father for his own selfish sexual gratification. Understandably, there has been a very significant detrimental impact on the complainant which is set out in her victim impact statement.
This Court has been referred to a number of comparable cases. In R v K,[8] K pleaded guilty to a large number of sexual offences involving carnal knowledge on literally hundreds of occasions, oral sex both ways, digital activity, exposure to pornographic material and sodomy. The offences began when the child was 7 and the applicant 23 and spanned a four year period. The applicant was the complainant girl's uncle and was living in the household at the time. He had had a sexual relationship with his sister, the complainant's mother. The child suffered vaginal and anal bleeding in the early stages of the relationship which grew into a consensual one. She was corrupted by the applicant and behaved in an inappropriate sexual way at school. K had had an unfortunate background. The sentence imposed of 15 years imprisonment was held not be manifestly excessive and no recommendation for parole was warranted.
In R v S,[9] the applicant pleaded guilty to maintaining an unlawful relationship with a child under the age of 16 years in the course of which he had committed sodomy of a child under the age of 12 and committed rape upon the child. He was sentenced to 20 years imprisonment. The complainant was his natural daughter and the relationship extended over a four year period commencing when she was just 4 years old. It included repeated acts of indecency, masturbation, oral sex each way, anal and vaginal penetration with the finger and at least one act of sodomy and one act of rape. The child had significant resulting problems and was receiving psychological counselling at the time of sentence. The applicant made full admissions and pleaded guilty and was himself from a dysfunctional upbringing. The Court of Appeal reduced the sentence to 15 years with no recommendation for early release on parole.
In [a second] R v K,[10] the Attorney-General successfully appealed against sentences imposed on K, who had pleaded guilty to three charges of maintaining a sexual relationship with three different children under 16, his two stepdaughters and his natural son. The offences involved frequent vaginal intercourse with his stepdaughters and mutual oral sex. He committed sodomy on one occasion on one stepdaughter and attempted to do so on the other. He had the children commit sexual acts upon each other. K's activities came to light when it emerged that the elder girl may have been pregnant to him. The Court of Appeal imposed a sentence of imprisonment of 12 years with a recommendation that he be considered for release on parole after serving four years of that sentence.
These three comparable sentences each involved acts of sodomy, a factor not present in this case. Whilst it is difficult to compare offences which are all sordid, repugnant and serious, it must be conceded that K, S and [the second] K were each in their own ways even worse than this matter.
In reaching the sentence of 12 years imprisonment, the learned sentencing judge was acting on the incorrect belief that the complainant had been penetrated over 100 times rather than had over 100 sexual acts committed upon her. She also took into account the applicant's guilty plea by moderating the head sentence rather than by making any parole recommendation. Such an approach is permissible but the applicant's counsel requests a recommendation for parole rather than a moderated head sentence alone.
A proper head sentence which reflects both the seriousness of the conduct and the mitigating factors in respect of the offence of maintaining is 12 years imprisonment.
As these offences all occurred prior to the enactment of Part 9A of the Penalties and Sentences Act1992 on 1 July 1997, the discretion to recommend early parole eligibility remains: see R v Mason and Saunders.[11] The applicant is entitled to such a recommendation in recognition of his cooperation with the authorities, his early plea, his remorse and that the conduct of his case did not require the complainant to give evidence. He should be eligible for release on parole after four years.
The next question is what is the proper sentence to be imposed in respect of the six counts of unlawful carnal knowledge of a girl under 16 with a circumstance of aggravation. The maximum penalty for these offences is life imprisonment. It is proper to impose a lesser penalty than that imposed in respect of the charge of maintaining which takes into account the full extent of the unlawful relationship. Nevertheless, each offence is individually extremely serious; a sentence of nine years imprisonment is justified on each count. There is no complaint in respect of the sentences imposed by her Honour in respect of the remaining counts.
We make the following orders:
The application for leave to appeal against sentence is granted.
The appeal is allowed.
The sentences below are varied by deleting the terms of imprisonment of 12 years imposed in respect of counts 12-15, 19 and 23 and in each case substituting terms of imprisonment of 9 years; and in respect of all sentences, by adding a recommendation for eligibility for release on parole after 4 years. Otherwise the sentences below are confirmed.