R v. B & P [2000] QCA 379 (14 September 2000)

Court of Appeal (Qld)|2000-09-14|Before: Jersey CJ, Pincus JA, Thomas JA, Jones J

The applicant's acts in the present offences were to an extent preparatory acts for the offences involving Schloss. However, the conduct brought to light in the present matters involves a course of conduct of what might be called training exercises in the corruption of three children, whereas only some of this was involved in the Schloss offences. These activities are not merely incidental to the prostitution of H. They significantly extend the applicant's criminality.

The learned sentencing Judge rightly emphasised that the applicant had deprived her children, all three of them, of the right to be protected, nurtured and valued by their parents and had done so in a base and cruel way. She pointed out that threats and violence were involved in the conduct and that the children had been left deeply disturbed. There was an act of penetration by the applicant which could only be regarded as deliberate physical preparation for intercourse by an immature child. These matters broaden the applicant's criminality and do so significantly.

Most of those cases involved offences of repeated penetration, and perhaps a greater level of sexual activity than that to which the three victims were subjected in the present offences. Those cases probably reveal worse physical acts and more of them than the present cases, but the sheer wickedness of the present applicant's conduct and its depravity is hard to match. It reveals grossly perverted conduct by a mother which almost defies belief.

I am satisfied that the learned sentencing Judge was quite correct in deciding that an additional cumulative sentence was necessary. The question is how much was justified. There are some who would say the applicant deserves any sentence that the Court might impose on her, and the higher the better. But to adopt such an approach would be contrary to the duty of the Court, one of whose functions is to maintain a relative consistency in its response to such matters.

None of the cases to which reference has been made resulted in an overall sentence of greater than 13 and a half years despite the fact that multiple offences were involved. The sentence to which I have referred - that 13 and a half years was imposed in Ruhland where there were 98 offences involving 12 boys and eight counts of maintaining a sexual relationship with boys.

Acknowledging, as we must, the fact that the present sentences involved to a significant extent preparatory acts for the crime for which the applicant has already been substantially punished, it seems to me that while a cumulative sentence was justified the one that was imposed was obviously too high.

In my view consistency and fair totality would be achieved by subjecting the applicant to an overall effective sentence of 14 years with a recommendation for consideration of parole after five and a half years. This would be brought about by a cumulative sentence of two years and by an adjustment to parole eligibility.

I would therefore grant the female applicant leave to appeal, allow the appeal, set aside the sentence below and replace it with a sentence of two years imprisonment on all three counts concurrent with one another, but cumulative upon the sentence which the applicant was already serving, with a recommendation that she be considered for parole after serving five and a half years of the sentences.

The adjusted parole period follows the application of section 157, subsection 3 and subsection 6 of the Penalties and Sentences Act. Notionally there is the four and a half years recommendation made on the original sentences and the addition of one year in respect of the present cumulative sentence.

In respect of the father's appeal the same factors apply. However, he was less involved in the acts than the mother and in particular she penetrated her daughter while he did not. This was reflected in her Honour's sentence by sentencing him to a head sentence six months less than that of the mother. Similar orders were, however, made in relation to parole. The differential should be maintained although in the result, I think, that he should be subject to the same non-parole period as the female applicant.

The male applicant's sentence should be reduced from three years to one and a half years. The adjusted parole recommendation should be five and a half years. Accordingly his application should be granted, his appeal allowed, the sentence below varied to sentences of one and half years on all three counts concurrent with one another and cumulative upon the sentence he is currently serving, with a recommendation that he be considered for parole after five and a half years of the sentences.

PINCUS JA: In relation to both the matters, I agree with the reasons given by Thomas JA and with the orders which are proposed in those reasons. I was a member of the Court in the previous appeal involving these two people, which was determined on 20 March 1998.

The only point I wish to add to what has been said by Thomas JA is that in the previous case the conviction of rape against each appellant was set aside and they were each left with a conviction of procuring. Mr Leask has pointed out that the sentences of 12 years imposed on them then were only two years short of the maximum penalty for that offence. I do not wish to add anything further.

THOMAS JA: I should add that I am aware of that fact and intend to amend the reasons to reflect it.

JONES J: I agree with the reasons already stated by

Mr Justice Thomas and the comments of the presiding Judge and I too agree with the orders proposed.

PINCUS JA: The orders will be as indicated by Mr Justice Thomas.

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