R v HAN [2008] QCA 106

Judgment (65 paragraphs)

[1]

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - applicant pleaded guilty to one count of maintaining a sexual relationship with his daughter with circumstances of aggravation - head sentence of seven years imprisonment - parole eligibility date not fixed - the complainant was between 13 and 17 when the offences occurred - the applicant procured the complainant to perform fellatio upon him 'daily' for a period of three years - where relevant mitigating factors - sentence was manifestly excessive

[2]

Corrective Services Act 2006 (Qld), s 184(2)

[3]

R v A, (unreported, District Court of Queensland, Shanahan DCJ, 17 October 2007), distinguished

[4]

R v BAT [2005] QCA 82, considered

[5]

R v C [2000] QCA 145, considered

[6]

R v GY [2007] QCA 103, considered

[7]

R v H [2003] QCA 392, distinguished

[8]

R v MAH [2005] QCA 13, considered

[9]

R v PAD [2006] QCA 398, considered

[10]

R v R [2001] QCA 488, considered

[11]

R v S [2001] QCA 54, considered

[12]

R v SAG [2004] QCA 286, considered

[13]

R v SAH [2004] QCA 329, considered

[14]

R v Schneider; ex parte A-G (Qld) [2008] QCA 25, considered

[15]

Director of Public Prosecutions (Queensland) for the respondent

[16]

**[1] MUIR JA: I agree with the reasons of Lyons J and the orders she proposes.

[17]

[2] WHITE J: I agree with the reasons of Lyons J and the orders she proposes.

[18]

[3] LYONS J: On 10 March 2008 the applicant pleaded guilty on a six count indictment which charged one count of maintaining a sexual relationship with a child with circumstances of aggravation, two counts of indecent treatment of a child under 16 who was a lineal descendant, one count of rape, one count of sexual assault with a circumstance of aggravation, and one count of sexual assault.

[19]

[4] The complainant was the applicant's natural daughter. She was aged between 13 and 17 at the time of the offences. The offences all occurred between June 2001 and June 2004.

[20]

[5] Under the pretext of an arthritic condition, the applicant procured the complainant, his daughter, to massage him daily and this led to him procuring her to masturbate him and perform fellatio upon him "almost daily" between June 2001 and June 2004 when she was aged between 13 and 17. On these occasions he would compel her to swallow his ejaculate. She was told not to tell anyone and she finally disclosed the offending to her boyfriend and her mother in June 2007. The applicant sent the complainant two messages saying he was sorry and indicated he would get some help. On 4 July 2007 the complainant made a formal complaint to police. As the charges proceeded by way of ex officio indictment the circumstances of the offences are set out in an agreed statement of facts which can be summarised as follows:**

[21]

(i) Count 1 - maintaining a sexual relationship with a child who was under the age of 16 and who was a lineal descendant between 26 June 2001 and 26 June 2004. The applicant would make the complainant perform oral sex on him almost daily telling her what to do.

[22]

(ii) Count 2 - Indecent treatment of a child under 16. This count relates to the first occasion which was on a date unknown between June 2001 and June 2002 when the applicant grabbed the complainant's hand and put it on his penis on the outside of his shorts and with his hand on top of hers began rubbing his penis.

[23]

(iii) Count 3 of rape followed directly on from count 2 as the applicant took his pants off and with his hand on his daughters neck pushed her head towards his penis and directed her to open her mouth and put his penis in her mouth. He removed his hand but directed her to move up and down until he came. She was directed to swallow his ejaculate.

[24]

(iv) Count 4 of indecent treatment related to a further occasion of oral sex on a date unknown between June 2002 and June 2003.

[25]

(v) Count 5 of sexual assault with a circumstance of aggravation relates to an occasion between June 2004 and 2005 when the complainant was again made to perform oral sex and swallow the ejaculate.

[26]

(vi) Count 6 of sexual assault relates to an occasion between June 2005 and June 2006 when the applicant shaved off all of the complainant's pubic hair.

[27]

**[6] On Count 1 of maintaining he was sentenced to seven years imprisonment. On Count 3 of rape he was sentenced to five years imprisonment and on the other remaining counts he was sentenced to three years imprisonment on each count. All of the sentences were ordered to be served concurrently. A parole eligibility date was not fixed and pursuant to s 184(2) of the Corrective Services Act 2006 (Qld) the applicant will be eligible for parole when he has served half the period of imprisonment to which he has been sentenced which is in three and a half years time.

[28]

[7] The applicant seeks leave to appeal the sentence on the basis that a head sentence of seven years is manifestly excessive particularly as a parole eligibility date was not set. The applicant's Counsel submits that to justify a sentence of seven years imprisonment without any further amelioration, the notional starting point for the determination of the sentence must have been in the order of nine or 10 years which Counsel submits is not supported by any authority. The applicant states that in imposing the sentence that he did, the sentencing Judge did not take the circumstances of mitigation which he had been referred to, into account. In particular the fact that the applicant had pleaded guilty to an ex officio indictment, had made full admissions, and had confessed to police. He had expressed remorse, voluntarily attended counselling prior to the reporting of the offences to police, and had saved the complainant the ordeal of a trial. These factors the applicant submits, together with the fact he had no previous convictions, should have been reflected in the sentence imposed.

[29]

[8] A number of authorities were referred to the sentencing Judge at the hearing including R v GY [2007] QCA 103, R v SAG [2004] QCA 286, R v MAH [2005] QCA 13, R v L [2002] QCA 268, R v SAH [2004] QCA 329 and R v M [2003] QCA 443 many of which discussed the distinction between digital and penile rape where more severe sentences were imposed for penile rape. It was also clear that many of the authorities the sentencing Judge was referred to were not helpful as they were sentences imposed in a less severe sentencing regime where the offence of maintaining carried a maximum penalty of seven years rather than life imprisonment.

[30]

[9] At the hearing the Crown submitted that the range for the offending was in the order of four to six years on the basis that it was a serious corruption of a young girl by her natural father, where he had engaged her in sexual conduct of a serious nature and he had done so by virtue of his position of trust within the family. In particular, the Crown submitted that it was not a one off incident, but it was a series of acts which occurred over a significant period of time and had continued into young adulthood. Because of factors of community denunciation and general deterrence, the Crown submitted that the appropriate penalty was a head sentence of five years. The Crown prosecutor also submitted that because of his plea of guilty, the co-operation and the lack of criminal history, a parole eligibility date should be indicated at around the one-third mark, which would be at 20 months. Defence Counsel similarly argued that as this case was a case of fellatio being performed on the father and not a case of incest, which they contended was a much more serious offence, the range was between four and a-half to five years, and that a parole eligibility date should be set at the one-third mark.

[31]

[10] In coming to the sentence that he did, the sentencing Judge indicated that he considered the range contended for by the prosecution to be inadequate and that the applicant's conduct amounted to a gross and disgraceful breach of trust, that it was depraved and that it had corrupted his daughter. He indicated that the applicant "...should receive the most denunciation that the community is capable of extending to you." The sentencing Judge gave an indication that he considered that the offences had occurred in excess of 500 times on the basis that the schedule of facts indicated that the behaviour occurred "almost daily."

[32]

[11] In imposing the sentence that he did the sentencing Judge placed considerable reliance on the sentencing remarks in R v A (unreported, District Court of Queensland, Shanahan DCJ, 17 October 2007), a case which he had identified, where a sentence of seven years imprisonment was imposed. In that case the offender had abused the nine year old daughter of a woman he was in a relationship with over a period of seven years until she was 16. The abuse escalated from touching and masturbation of the child to masturbation by the girl of the offender, oral sex, and exposure to pornography. In that case the sentencing Judge noted that the child had been sexualised by the conduct which was for the offender's own gratification. He noted however that the conduct "...did not involve penetration particularly penile penetration" although there were acts of oral sex involved. In imposing a sentence of seven years his Honour stated:**

[33]

"Considering the comparable cases placed before me, and noting that the circumstances clearly differ from case to case, the substantial matters involved here in my view are the period of the relationship of some seven years, the young age of the child at the commencement of that relationship and the persistence of it, the type of sexual conduct involved which did not involve penile penetration or vaginal penetration although it involved acts of oral sex. It is also important to note that there are no aspects of violence or threats of violence as disclosed in the material which was present in a number of cases placed before me."

[34]

[12] Importantly the sentencing Judge in that case recognised the factors in mitigation particularly the admissions to police, the co-operation, and the plea of guilty and stated:

[35]

"Considering all those factors I am of the view that a head sentence of seven years' imprisonment is appropriate. To recognise your cooperation and your plea of guilty, I intend recommending that you be considered for parole after the [sic] one-third mark after a period of 28 months."

[36]

[13] The authorities the sentencing Judge was referred to supported a sentence in the range of four to six years. In R v SAG [2004] QCA 286[1] Jerrard JA identified the factors that would lead to an increased sentence in cases of maintaining as:

[37]

"▪ a young age of the child when the relationship thereafter maintained first began;

[38]

a lengthy period for which that relationship continued;
if penile rape occurred during the course of that relationship;
if there was unlawful carnal knowledge of the victim;
if so, whether that was over a prolonged period;
if the victim bore a child to the offender;
if there had been a parental or protective relationship;
if the offender had been dealt with for offences against more than one child victim;
if there had been actual physical violence used by the offender; and if not whether there was evidence of emotional blackmail or other manipulation of the victims."

[39]

**[14] In R v C [2000] QCA 145 the offender who was sentenced to five years imprisonment had maintained a sexual relationship over a four year period when the complainant was aged six to 11 years and involved touching and digital penetration as well as fellatio.

[40]

[15] In R v S [2001] QCA 54 the offender was initially sentenced to six years imprisonment with a parole recommendation at two years. This was reduced on appeal to four and a half years with a recommendation after 18 months because the offender had voluntarily disclosed his offending to police. In that case the conduct occurred between the ages of seven and 15 years and involved touching her breast area and genitals, having her rub his penis until he ejaculated, and rubbing his penis on the complainant's back and buttocks to ejaculation. There was also one incident of digital penetration of her vagina.

[41]

[16] In R v R [2001] QCA 488 the offender was sentenced after a trial to four years imprisonment for maintaining a sexual relationship with his step daughter over a three year period. The offending involved having the complainant masturbate the offender and rubbing his penis against her genitals without penetration. On appeal the sentence was not disturbed but a recommendation for parole after 15 months was added.

[42]

[17] However those three cases all involved offences which occurred before the amendments in 2003 which increased the maximum penalty to life imprisonment. In R v SAH [2004] QCA 329 William JA said:**

[43]

"Since the new regime came into force higher sentences are called for for offences of the type referred to in the previous paragraph. But, in my view, application of the new regime would not result in more than about a doubling of the sentences previously imposed."

[44]

**[18] A more recent decision in relation to maintaining is the 2007 decision of R v GY [2007] QCA 103 where the Court of Appeal dismissed http://www.sentencing.justice.qld.gov.au/qldca/judgments/2008/JT_CAIR_WAA_11042008.html - _ftn14an appeal against a sentence of four years imprisonment, for maintaining a sexual relationship with a child under 16 years. The period over which the relationship was maintained was approximately eight years, during which the complainant was aged from about six to 14 years. The conduct included the appellant's rubbing his penis against the complainant's vulva sometimes achieving ejaculation.

[45]

[19] A series of maintaining cases were also referred to by the applicant which involved offences which included penile and digital penetration and rape. In R v MAH [2005] QCA 13 the offender was sentenced to six years imprisonment with a recommendation for release after two years which was not disturbed on appeal. In that case the maintaining offence involved the offender's seven year old stepdaughter and related to a period of two years where there had been three instances of rape, many instances of digital penetration as well as oral sex and indecent touching.

[46]

[20] In R v BAT [2005] QCA 82 an effective term of six years imprisonment was imposed with respect to a maintaining charge which involved indecent dealing and unlawful carnal knowledge and many acts of sexual intercourse over a three year period when the complainant was between the ages of 12 and 15. The sentence was upheld on appeal with Keane JA noting, having regard to the appellant's gross abuse of his position and his mistreatment over a number of years, that there was no good reason for suspending any part of the sentence.

[47]

[21] In R v Schneider; ex parte A-G (Qld) [2008] QCA 25 the offender, a school teacher, pleaded guilty to one count of maintaining, three counts of rape, one count of indecent treatment of a child under 16 and seven counts of indecent treatment of a child under 16 whilst in his care. All the offences related to students at the school where he taught. He was sentenced to five years imprisonment on the maintaining count and lesser terms on the remaining counts with a parole eligibility date fixed after serving a further 12 months imprisonment having served five months in prison prior to the sentence. The Attorney-General appealed the sentence on the basis that it was manifestly inadequate. However in that case the offender had been sent to prison in respect of related conduct in much the same time period and had been released and rehabilitated. In that case in upholding the sentence it was said:**

[48]

"But in imposing a 5 year head sentence on the present offences, in light of the 15 month head sentence imposed in February 2006, the true effect of the combined sentences, had they been imposed in February 2006, was a head sentence of 6 years and 3 months. The respondent will have served 17 months of this before he becomes eligible for parole."

[49]

**[22] In the present case whilst offending occurred "almost daily" over a three year period, there was no penile penetration or violence and the offences had commenced when the complaint was a thirteen year old girl rather than a prepubescent child.

[50]

[23] Accordingly even taking into account the frequency of the offending I consider a head sentence in the order of six years was the maximum sentence open on the authorities and a head sentence of seven years was manifestly excessive in the circumstances.

[51]

[24] In R v Schneider the majority decision at [19] referred to the sentence imposed and noted that in coming to an appropriate sentence mitigating factors had to be taken into account:**

[52]

"On the other hand, there are many mitigating factors which must be given due weight. The respondent cooperated with the authorities through his early plea of guilty to all counts so that all complainants were saved from the further trauma of giving evidence in court."

[53]

**[25] In the present case the sentencing Judge does not appear to have taken into account the factors in mitigation. These factors were referred to in R v PAD [2006] QCA 398 as conduct showing remorse, voluntarily approaching the authorities or seeking help for all the family, co-operation with investigating authorities, admissions of offending, co-operation with the administration of justice, and sparing the victim from a contested hearing.

[54]

[26] In the present case the applicant had made full admissions, had organised counselling for himself and his wife prior to being interviewed by police, had sent messages to his daughter expressing remorse and suggesting she go to counselling, there was no cross examination of the complainant, and the matter proceeded by way of an ex officio indictment. Indeed the applicant indicated his plea in this manner on the occasion of his first court appearance after arrest. Accordingly there were a number of factors which accorded with the principles of mitigation set out in R v PAD.

[55]

[27] An appropriate exercise of the sentencing discretion required that these factors be taken into account in ameliorating the head sentence as was done in R v A set out above. In that case these factors in mitigation meant that a recommendation for parole was made at the one-third mark of 28 months.

[56]

[28] Accordingly as the head sentence is manifestly excessive and as the factors in mitigation have not been taken into account the sentencing discretion miscarried. This Court must therefore exercise the discretion afresh.

[57]

[29] The applicant submits that the appropriate sentence was five years imprisonment suspended after 20 months. The respondent submits that none of the Court of Appeal cases referred to the sentencing Judge were appropriate and that the sentence imposed in R v A should be followed because it was a recent example of the way trial Judges dealt with offending of this nature and that a term of seven years imprisonment was within range. That case however involved a much longer period of offending of seven years with a much younger complainant. The Crown also relies on R v H [2003] QCA 392 where a sentence of eight years was imposed however that case involved not just regular and prolonged sexual interference over a two year period but penile penetration on two particular occasions which had involved pain and humiliation to the complainant.

[58]

[30] I consider that a head sentence of six years imprisonment for the most serious offence which is the maintaining charge appropriately reflects the gravity of the offence but that taking into account all the factors in mitigation as set out above a parole eligibility date should be fixed at the one third mark which is two years.

[59]

[31] Accordingly the application should be granted and in substitution for the sentence imposed the following sentence should be substituted.

[60]

[32] Count 1 a period of imprisonment of six years is imposed.

[61]

[33] Count 3 a period of imprisonment of three years is imposed.

[62]

[34] Counts 2, 4, 5 and 6 a period of imprisonment of two years is imposed.

[63]

[35] All sentences are to be served concurrently.

[64]

[36] The date the applicant is eligible for parole is 10 March 2010.**

[65]

[1] See R v PAD [2006] QCA 398.

At a glance

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Judgment (65 paragraphs)

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Legislation Cited (1)