Court of Appeal (Qld)|2009-09-04|Before: Keane and Muir JJA and White J, Separate reasons for, judgment of each member of the Court, each concurring as to the orders, made
Keane and Muir JJA and White J, Separate reasons for, judgment of each member of the Court, each concurring as to the orders, made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR
INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED
– where
appellant convicted, after trial, of one count of maintaining a sexual
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE ORINSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED– whereappellant convicted, after trial, of one count of maintaining a sexualrelationship with a child under 16 (count 1),six counts of indecent treatmentof a child under 16 and one count of rape (count 9) – where appellantacquitted of one countof indecent treatment of a child under 16 and four countsof rape – where count 1 was accompanied by circumstances of aggravationincluding rape – where appellant submitted that the jury’s verdictin relation to count 9 and the circumstance of aggravationof rape in relationto count 1 was insupportable as there was no evidence that the conductcomplained of was non-consensual and thatthe verdict was inconsistent with theacquittals on the other counts of rape – whether convictions unsafe andunsatisfactoryin all the circumstancesCRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY
EXCESSIVE OR
INADEQUATE – where appellant sentenced to 14 years imprisonment for counts
1 and 9 and to five years imprisonment
for each of the other counts –
where, in relation to count 1, a serious violent offence declaration was made in
accordance
with Part 9A Penalties and Sentences Act 1992 (Qld) –
where majority of charges occurred before the commencement of Part 9A –
Penalties and Sentences Act 1992 (Qld), s 161B, Part 9A
R v AP [2003] QCA
445, considered
R v BAO [2004] QCA
445, cited
R v BAY (2005) 157 A Crim R 309
[2005] QCA
427, distinguished
R v KAI [2002] QCA
378, cited
R v KN [2005] QCA
74, distinguished
R v Mason and Saunders [1998] 2 Qd R 186
[1997] QCA
421, cited
R v S [1999] QCA
311, distinguished
R v SAG (2004) 147 A Crim R 301
[2004] QCA
286, distinguished
R v SAK [2004] QCA
379, distinguished
R v SAR [2005] QCA
426, cited
R v Shaw [1996] 1 Qd R 641
[1995] QCA
45, cited
R v TS [2008] QCA
370, considered
Judgment (104 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED - where appellant convicted, after trial, of one count of maintaining a sexual relationship with a child under 16 (count 1), six counts of indecent treatment of a child under 16 and one count of rape (count 9) - where appellant acquitted of one count of indecent treatment of a child under 16 and four counts of rape - where count 1 was accompanied by circumstances of aggravation including rape - where appellant submitted that the jury's verdict in relation to count 9 and the circumstance of aggravation of rape in relation to count 1 was insupportable as there was no evidence that the conduct complained of was non-consensual and that the verdict was inconsistent with the acquittals on the other counts of rape - whether convictions unsafe and unsatisfactory in all the circumstances
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where appellant sentenced to 14 years imprisonment for counts 1 and 9 and to five years imprisonment for each of the other counts - where, in relation to count 1, a serious violent offence declaration was made in accordance with Part 9APenalties and Sentences Act1992 (Qld) - where majority of charges occurred before the commencement of Part 9A - whether serious violent offence declaration appropriate - whether sentence manifestly excessive
Director of Public Prosecutions (Queensland) for the respondent
[17]
[1] KEANE JA: I have had the advantage of reading in draft the reasons for judgment prepared by Muir JA. I agree with his Honour's reasons and with the orders proposed by his Honour.
[18]
[2] MUIR JA: After a trial in the District Court the appellant was convicted on 11 December 2008 of one count of maintaining a sexual relationship with a child under 16 (count 1), six counts of indecent treatment of a child under 16 (counts 5, 6, 7, 8, 12 and 13), and one count of rape (count 9). The appellant was acquitted of one count of indecent treatment of a child under 16 (count 2) and of four counts of rape (counts 3, 4, 10 and 11). All of the indecent dealing counts had the aggravating circumstance that the complainant was under the appellant's care and counts 5 and 6 had the further circumstance of aggravation that the complainant was under 12 years of age. Count 1 was accompanied by the circumstances of aggravation that the appellant raped the complainant and that the complainant was indecently dealt with when under 12 and 16 years of age.
[19]
[3] The appellant was sentenced to 14 years imprisonment for each of counts 1 and 9 and to five years imprisonment for each of the other counts. A declaration was made under s 161B of the Penalties and Sentences Act 1992 (Qld) that the maintaining offence was a serious violent offence. The appellant appeals against his convictions on counts 1 and 9 on the grounds that the convictions are unsafe and unsatisfactory. In relation to count 1 it is contended that the conviction cannot stand as "the circumstance of aggravation of rape was not proved as there was no evidence ... that the complainant did not consent." In the case of count 9 it is contended that the verdict was inconsistent with the verdicts on the other counts of rape and that there was no evidence that the conduct complained of was non-consensual. The appellant also seeks leave to appeal against the sentences imposed on the grounds that they were manifestly excessive.
[20]
[4] Before considering the grounds of appeal and the arguments advanced in support of them, it is desirable to say something about the evidence. The complainant, who was 26 years of age at the time of the trial, gave oral evidence. The only other witnesses in the trial were the complainant's mother, a male friend of the complainant to whom the complainant made her first complaints against the appellant of sexual misconduct and a police officer who arranged for a statement to be taken from the complainant and for the complainant to have a pretext telephone conversation with the appellant. The appellant did not give or call evidence in his defence.
[21]
[5] The complainant's evidence was to the following effect. The complainant's mother and the appellant entered into a de facto relationship when the complainant was about two years of age. She was subjected to constant sexual abuse from about five years of age until she was about 18. The first such incident (the subject of count 2) recalled by her was an occasion when she was about five years of age. The appellant was asked by his former wife to locate her son, Michael. In the course of complying with that request, the appellant drove with the complainant, the complainant's mother and her brother to a "Hungry Jacks" at Woodridge or Lawnton. When her mother and her brother got out of the car and went into the restaurant, the appellant asked the complainant to spread her legs and pull her underwear across. He then inserted two fingers into her vagina. He asked her if it felt good, but she did not reply. The appellant saw the complainant's mother and brother returning and extracted his fingers.
[22]
[6] When the complainant was about five years of age, she was at a car detailing shed at Northgate used by the appellant together with her two brothers, when the appellant told her to go into the shed. She did so and he closed the door behind him. He then demanded that the complainant get into the back of an orange panel van. She complied. The appellant then pulled down her underwear, got on top of her and penetrated her vagina with his penis. This incident constituted count 3.
[23]
[7] When the complainant was about 10 years of age the appellant told the complainant to go into the downstairs bathroom and wait for him. At his request she put her hands on the wall and bent over. He then placed his penis in her vagina. Disturbed by the noise of the complainant's mother coming into the house, the appellant removed his penis, pulled his shorts back up and left the room. The complainant remained behind "for a little while ... crying." This incident was the basis for count 4.
[24]
[8] On another occasion in about the same year (count 5) the appellant, the complainant and her mother watched television one evening in the lounge. After the complainant's mother went to bed, the appellant pulled the complainant's underwear across, placed a finger in her vagina, moved it backwards and forwards, inserted two fingers, then three, and handled his penis.
[25]
[9] When the complainant was about 10 the appellant endeavoured to persuade the complainant to open her mouth to receive his erect penis. She refused and started crying. He then placed her hand on his penis and made her move it in order to masturbate him. She felt sick and repulsed. This incident was the basis of count 6.
[26]
[10] The sexual abuse became "a daily occurrence" when the complainant was about 12. At that time the complainant's mother used to take one of her brothers to work in the evening and pick him up from work at about 5 am. When the complainant's mother left the house in the morning the appellant would frequently come to her bedroom, touch her vulval area under her underwear and, on occasions, remove her underwear, lick her vagina and insert his fingers into it. At times he would penetrate her with his penis. Count 7 related to one of these incidents.
[27]
[11] When the complainant was 12 there were occasions on which the appellant would put items of the complainant's mother's underwear on her and sit or lie on a bed and masturbate. On one such occasion which "sticks out" in her mind "really clearly" (count 9) the appellant placed his penis in her vagina when she had on "a particular pair of lacy blue and black - I'll just never forget them - underwear ..." She said that she kept "having memories of the blue and black lacy panties."
[28]
[12] When the complainant was about 13 she was taken by the appellant to her grandmother's house at Chermside. On arrival at the vacant house the appellant told the complainant to lie on the floor and take off her underwear. He then inserted his penis in her vagina. At around the same time, the complainant was taken by him to visit a friend of his at Wavell Heights in the appellant's white Ford XR8 Sprint. On the journey he pulled over into a quiet, dark street, climbed onto the complainant and inserted his penis in her vagina. These incidents were the basis of counts 10 and 11 respectively.
[29]
[13] When on holidays at Caloundra on an occasion on which the complainant's mother was out shopping, the appellant took the complainant into her bedroom and required her to remove her clothes and lie down. He then placed his penis in her vagina.
[30]
[14] After the family moved to Bridgeman Downs when the complainant was about 15 years of age, the appellant had intercourse with her on several occasions and on others would manually manipulate her in an attempt to cause her to orgasm. On other occasions he would lick her vaginal area. The complainant gave evidence that she recalled a specific occasion on which the appellant took her to his and her mother's bedroom where he licked her vaginal area, manipulated her clitoris and inserted fingers in her vagina in order to cause her to orgasm. Count 12 was in respect of that conduct. On another such occasion (count 13) he placed a finger in her anus but removed it when the complainant kept "telling him that it hurt." He attempted to insert his finger in her anus on other occasions but the complainant "managed to resist it by telling him that it was hurting and to stop."
[31]
[15] The appellant was verbally and physically abusive to the complainant, her brothers and her mother. She complied with his demands, as she "was too scared that he would hit [her] or get mad at [her]." She hated what he was doing and it made her feel sick. She did not complain, however, as she was "too ashamed and scared of what would happen." The appellant had said to her from time to time that he would kill her if she ever told anyone and that he would go to jail and her mother would be alone.
[32]
[16] In the course of his address to the jury, counsel for the appellant admitted that his client had sexually abused the complainant "from the age[s] of 12 onwards. And that was continuous. What he did was disgusting." The appellant's counsel also accepted that his client was guilty of count 1 without the aggravating circumstance of rape and that his client was guilty of counts 7 and 8, respectively counts of indecent dealing and wilful exposure to an indecent act.
[33]
[17] In the course of the pretext telephone conversation, the appellant said to the complainant words to the effect that if he spoke to a professional person in relation to what had happened between himself and the complainant he would "end up being in jail." In the course of the conversation the appellant implicitly admitted having a lengthy, unacceptable sexual relationship with the complainant. The conduct implicitly included "having sex", with the appellant on top of the complainant. During the conversation, the complainant referred to a person with whom she was having a sexual relationship inquiring why she pushed him off when she was "about to orgasm" saying, "I push[ed] him off because it reminds me of when I used to do that with you." A little later in the discussion the complainant asked "... do I tell [the person just referred to]. Do I, I don't know and I just keep thinking about what the next step is for me to get over these things that happened to me as a child." The appellant said nothing to suggest that he did not accept the truth or accuracy of any such assertion.
[34]
[18] When interviewed by police officers, the appellant admitted that he couldn't sleep properly as a result of what he had done to the complainant. Asked, "How often would you say the abuse occurred?" he initially responded, "Ah, not all that often". Pressed, he said, "Ah, it mighten happen in a week, might, could be once a month." Confronted with the complainant's account of the appellant's conduct after her mother left early in the morning to take her brother to work, the appellant said:
[35]
"Yeah, I think, it did happen, things did happen in that room, I, I'm sure I put my head between her legs there, but I can honestly say, now, I never stuck my penis into her vagina. ... When it comes to, sex, half the time I do it before I get it in anyway."
[36]
The questioning officer confirmed that the appellant was talking about premature ejaculation.
[37]
[19] The appellant maintained his denial of placing his penis in the complainant's vagina but admitted that he might have inserted his fingers in her vagina, but not before going to Bridgeman Downs.[1] Some of the appellant's denials of particular sexual misconduct were hesitant or qualified in nature with the appellant using expressions such as, "I think", "I don't think I did", and "I think, yeah, it was just the oral". The appellant said that at times when he would apologise to the complainant and hug her, "she used to start crying".
[38]
[20] His response to the complainant's account of being made to wear her mother's underwear to enhance the appellant's sexual gratification, was that he remembered one piece of black lingerie like a bodysuit "with a Velco (sic) crotch" which he asked the complainant to put on "a few times". He said that this happened "maybe five" times and that he masturbated with the complainant standing at the end of the bed on which he was lying.
[39]
[21] The appellant accepted that "on a couple of occasions" in the lounge room after the complainant's mother had gone to bed he "probably" did ask her to lift her dress up and that he masturbated in her presence. He did not dispute that she was then about 10 years of age.
[40]
[22] The 21 page outline of submissions of the appellant's counsel appeared to advance these arguments:
[41]
(a) There were discrepancies in the evidence of the complainant and her mother as to some of the circumstances relevant to counts 3, 4, 10 and 11. The jury's acquittal on those counts shows their acceptance of the evidence of the complainant's mother in preference to that of the complainant and demonstrates that the jury did not accept the complainant as a credible witness. The verdicts were thus "heavily dependent upon independent evidence."
[42]
(b) The prosecution failed to prove the absence of consent in respect of count 9. The prosecution case was that the complainant did not "manifest her dissent out of fear" of the appellant. The complainant's evidence in this regard conflicts with some of her own evidence and with that of her mother.
[43]
(c) The conviction on count 9 and the acquittals on the other four counts of rape are inconsistent to the extent that the verdict on count 9 was an "affront to logic and common sense".[2] Logic demanded that the jury's doubts in respect of counts 3, 4, 10 and 11 be translated into count 9.
[44]
[23] Counsel for the appellant identified the evidence of the complainant's mother which did not accord with that of the complainant as follows. In relation to count 3, the complainant's mother gave evidence to the effect that: the "orangey colour" van was parked outside the shed, not inside; the children would never go to the shed during school days; the children would sometimes go to the shed on Saturday mornings after shopping; there was old rubbish at the back of the van and there was no blanket in it.
[45]
[24] In relation to count 4, the only difference of substance between the evidence of the complainant and her mother appears to be between the mother's evidence that a door was only put on the downstairs bathroom just before the house was sold and the complainant's evidence to the effect that a door had been there for a lengthy period.
[46]
[25] In respect of count 10 the complainant's mother said that the appellant's mother had taken two trips to Melbourne; once with all members of the family and once by herself in 2000. The complainant would then have been 18. If the complainant's mother's evidence was accepted, the offence the subject of count 10 could not have happened when the appellant's mother was in Melbourne, as the complainant alleged.
[47]
[26] In relation to count 11, the mother's recollection was that the XR8 Sprint in which the complainant said the subject incident had taken place was purchased in 1995. She also said that the person the appellant and the complainant were said to be visiting was not living at the address given by the complainant when she and the appellant had the Sprint.
[48]
Consideration of the consequences of the jury's acquittal on counts 3, 4, 10 and 11
[49]
[27] The evidence of the complainant's mother largely went to peripheral background facts. Very little of it was relevant to the sexual relationship between the appellant and the complainant, which relationship, on the appellant's own admission, had been conducted in the family home for many years without the complainant's mother becoming aware of it. As counsel for the respondent pointed out in his submissions, the jury was aware that the complainant's mother remained the appellant's de facto wife and the jury could infer that she remained well disposed to him.
[50]
[28] The complainant's evidence of the nature of her relationship with the appellant received substantial corroboration from the admissions in the pretext telephone conversation and in the appellant's record of interview. The acquittals on counts 3, 4, 10 and 11 do not amount to positive findings either that the complainant's evidence in respect of these counts was untruthful or unreliable. All that the acquittals show in this case is that the jury was not satisfied of the elements of these offences beyond reasonable doubt. The failure of the jury to convict on these counts is explicable by the jury exercising caution and acquitting where there was some evidence capable of casting doubt on the complainant's recollections. In the case of count 3 the jury may have entertained some doubt about penile penetration having occurred when the complainant was five without some evidence of injury. They may also have questioned her recollection of events which were said to have occurred when she was so young.
[51]
[29] There was little reason for the jury to reject the complainant's evidence in respect of count 9. There were no factual matters which contradicted it or which made it objectively unlikely. The appellant admitted getting the complainant to dress in her mother's one piece "red and black lace ... lingerie while he masturbated." The only difference in substance between the appellant's and the complainant's accounts in respect of count 9 was the appellant's denial of having inserted his penis in her vagina.
[52]
[30] The complainant's evidence about this incident was quite graphic. She said that she kept "having memories of the blue and black lacy panties." The appellant's denial of penile or digital penetration of the complainant's vagina in my view is substantially weakened by his admissions that he: had the complainant masturbate him; "played with her clitoris ... licked her, performed oral sex on her" and that he "loved her clitor[is]".
[53]
[31] Except in the two circumstances discussed below, the complainant did not communicate her dissent verbally but a complainant who does not manifest her dissent by words or actions at or before the time of penetration "is not in law thereby taken to have consented to it."[3] The complainant did, however, habitually manifest her lack of consent in other ways.
[54]
[32] It was open to the jury to accept the complainant's evidence to the effect that she succumbed to the appellant's advances out of fear and to avoid confrontation and to conclude that the complainant did not consent to the sexual penetration charged in count 9. There was no suggestion in the complainant's evidence, in the matters put to her in cross-examination, in the pretext conversation, or in the appellant's record of interview, that the complainant ever initiated sexual contact with the appellant or even that she was a willing participant. There is evidence, which it was open to the jury to accept, that she routinely adopted stratagems with a view to avoiding the appellant's sexual treatment of her. She also gave evidence of conduct on the appellant's part calculated to cause her to fear adverse consequences for the appellant, her mother and the family if she revealed his misconduct.
[55]
[33] The appellant admitted to police officers that he regularly apologised to the complainant for his conduct and promised not to repeat it, at which the complainant "used to cry". In his record of interview he said, "... at times there, you could tell, she'd have tears in her eyes, and that's why it wouldn't go any further."
[56]
[34] The complainant's evidence of resisting the appellant's demands and conduct in relation to anal and oral penetration does not conflict with the general thrust of her evidence about the nature of her submission to the appellant and the reasons for it. The evidence in question relates to her refusing to allow the appellant to place his penis in her mouth and, on other occasions, his finger in her anus. It was plainly open to the jury to conclude that the complainant may well have reacted differently to conduct of this nature than to the appellant's handling of her genitalia and penetration of her vagina in the course of and after extensive grooming in that regard. The complainant said of the appellant's insertion of his finger in her anus that she regarded it as "disgusting" and that she felt "like a piece of meat".
[57]
[35] None of the grounds of appeal have been made out. I would dismiss the appeal.
[58]
[36] The appellant seeks leave to appeal on the grounds that the sentences imposed for counts 1 and 9 were manifestly excessive. On the morning of the hearing of the appeal, counsel for the appellant raised for the first time an argument that the declaration that the appellant had been convicted of a serious violent offence in respect of count 9 should not have been made, as the dates between which that offence was alleged to have occurred preceded 1 July 1997. Part 9A of the Penalties and Sentences Act 1992 (Qld), which makes provision for "serious violent offences" and the consequences of conviction for them, came into effect on that date. As Part 9A does not take effect retrospectively,[4] the point would have been a good one had a declaration under s 161B of the Penalties and Sentences Act actually been made in respect of count 9.
[59]
[37] The appellant's counsel submitted in relation to count 1 that as "the majority, if not all of the offending, took place prior to 1 July 1997 it would be unjust" for a serious violent offence declaration in respect of that offence to be made. Of the eight counts of which the appellant was convicted, it is only in respect of counts 12 and 13 that the offending conduct could have occurred, between 1 July 1997 and 14 May 1998: 14 May 1998 being the end of the offending period specified in count 1.
[60]
[38] The evidence was that the complainant and her family moved to Bridgeman Downs, where the offending conduct was alleged to have taken place, in November 1997.
[61]
[39] Count 1 was also supported by the evidence of the complainant that the appellant had frequently abused her sexually over the period of the alleged offending. In response to a question by the prosecutor as to "how frequently did sexual touching of you, or him having sexual intercourse with you" occur at Bridgeman Downs, the complainant responded, "Again all the time. More often than it didn't. If it didn't happen on a particular day I'd be thinking something was up ... it was more normal for it to happen than for it not to happen." Also, the appellant's counsel in his final address to the jury made the admissions referred to earlier.
[62]
[40] A special verdict was not taken and the jury's conclusions about the uncharged sexual behaviour sworn to by the complainant is unknown. It is apparent, however, that the jury was not satisfied of the accuracy of all of the complainant's evidence beyond reasonable doubt. Not guilty verdicts were returned on four counts of rape and on one count of indecent treatment.
[63]
[41] In his sentencing remarks the primary judge gave only passing consideration to the appellant's uncharged conduct, focussing particularly on the complainant's evidence relating to the counts on which the appellant was convicted. His Honour found that the uncharged conduct occurred "on numerous occasions" but did not address its incidence in any more detail. The appellant, however, admitted to police officers that such conduct "mighten happen in a week, might, could be once a month" and there is a period of more than 10 months between 1 July 1997 and the end of the period charged.
[64]
[42] The attention of the primary judge was not drawn to the commencement date of Part 9A or to the implications of that date for the sentence to be imposed. One obvious matter to be determined, if a declaration was to be made under s 161B, was whether there were acts of the appellant after 1 July 1997 which established the commission of the offence of maintaining a sexual relationship after that date. The effect of such a declaration on the term of imprisonment to be served was another relevant matter which, it is apparent from the reasons, was not considered. For those reasons the exercise of the primary judge's discretion miscarried and it is necessary for this Court to exercise the sentencing discretion afresh.
[65]
[43] Counsel for the respondent submitted that this Court could be satisfied that the appellant committed count 1 after 1 July 1997 and that Part 9A should be applied. The jury was not required to give consideration to the question of whether the offence of maintaining was committed in any period other than that charged. Its verdict on count 1 related to the period of offending alleged by the prosecution. Additionally, it does not appear to me to be appropriate that this Court, not having seen and heard the witnesses, should apply Part 9A on reliance on factual matters not resolved by the jury's verdict, not considered by the primary judge and to which no questions were specifically directed by the prosecutor or defence counsel. And having regard to the state of the evidence, it cannot be concluded that the appellant has been convicted of an offence to which Part 9A applies.
[66]
[44] It is desirable to commence a consideration of the merits of the application with an identification of the factual basis on which the appellant was sentenced. The primary judge found that the appellant had sexually abused the complainant from when she was about seven until she was 16. The offences were committed when the complainant "was, to all intents and purposes, [the appellant's] stepdaughter". The offending conduct was consistent and involved the appellant's masturbating in the presence of the complainant, masturbation of the appellant by the complainant, cunnilingus, the dressing of the complainant in her mother's underwear as an aid to the appellant's sexual gratification, penetration of the complainant's anus with a finger and penile penetration of the complainant's vagina. The abuse "had a significant impact" on the complainant and resulted in the breaking of the bond between mother and daughter.
[67]
[45] Counsel for the respondent submitted, principally by reference to R v S[5], R v A[6], R v SAG[7] and R v TS[8] that the sentences imposed were not manifestly excessive. In R v S, the appellant was convicted after a trial of three counts of unlawful carnal knowledge by anal intercourse of a child under 12, one count of unlawful anal intercourse of a child under 12 in his care and one count of maintaining a sexual relationship with a child under 12 in his care. The offences were committed over a period of about 16 months when the complainant was between six and seven years of age.
[68]
[46] The applicant was 24 years of age with a criminal history which included a fine for stealing and a suspended term of imprisonment for unlawful use of a motor vehicle and wilfully setting on fire a motor vehicle. He was a friend of the complainant's mother and stepfather, lived in the same house and from time to time looked after the complainant in the house. The maintaining offence involved "repeated anal intercourse" and also vaginal intercourse, as well as an occasion on which the appellant, whilst anally penetrating the complainant procured her young brother to penetrate her vaginally. The complainant experienced and complained of pain during these incidents and there were also occasions on which fellatio occurred. Sentences of 10 years imprisonment to be served concurrently on each count were undisturbed on appeal.
[69]
[47] The applicant in R v AP, who was 57 years of age at the time of sentence and the complainant's foster father, procured the complainant to masturbate him in 1985 when the complainant was three and a half years of age. The conduct progressed to mutual masturbation and then to sexual intercourse. It was said by McMurdo P in her reasons that "The evidence establishes a pattern of escalating corruptive behaviour, including an attempt to penetrate the victim with his penis when she was just ten years old; the taking of her virginity by rape; serial rape; her impregnation and the development of a consensual sexual relationship after the birth of her child, when, in many ways, she was still a child herself."
[70]
[48] The complainant was 14 when she bore the applicant's child. The offending conduct continued over a period of about nine years, leaving the complainant "a deeply disturbed young woman with significant personality disorders". A sentence of 14 years imprisonment was substituted on each of the counts of maintaining for a 15 year term, as part of the period during which the maintaining offence was alleged to have occurred was before the offence was created by the insertion in the Criminal Code of s 229B on 3 July 1989.
[71]
[49] In R v SAG, the applicant was convicted after a trial of sexual offences against three of his stepdaughters, [G], [P] and [N]. He had been convicted previously of sexual offences against another stepdaughter. The sexual abuse of [G] began when she was in Year 8 and led to the applicant's convictions for maintaining a sexual relationship and three offences of indecent dealing. He was convicted of maintaining a sexual relationship with [P] and also with [N]. His conduct in relation to [N] was the most serious. The applicant's touching of [N] in the vaginal area graduated to digital penetration on about a weekly basis. There were also four convictions for rapes which occurred after [N] attained her majority. The applicant procured [N] to masturbate him from when she was about eight "at least once a week". He ensured the compliance of his victims by making it uncomfortable in the household if his advances were rejected. He also implicitly threatened that his victims' mother would have to leave the house.
[72]
[50] In his sentencing remarks, Jerrard JA, with whose reasons Atkinson and Philippides JJ agreed, said that an aggravating feature of the applicant's conduct was the number of his victims and the young age at which the offending took place, as well as the grooming of and experimentation on the victims. There were said to be no relevant mitigating circumstances and that "the sentence of 14 years imprisonment, while at the high end of the scale, is not shown to be manifestly excessive ..."
[73]
[51] In R v TS, the applicant, after a guilty plea, was sentenced to 20 years imprisonment for counts of maintaining an unlawful sexual relationship, sodomy and rape of a child who was his lineal descendant. Other sentences were imposed for offences of attempted rapes and indecent treatment. The offences were committed over a six year period commencing when the victim was three years of age. The offences "committed ... against the complainant at every available opportunity during the" maintaining period continued until the complainant grew older and was able to resist the applicant's advances. The conduct included vaginal intercourse, anal intercourse causing great pain and distress and forced fellatio. The period of maintaining in count 1 began when the complainant was just under 10 and continued for six years. In his reasons, Fraser JA remarked on the pain and distress caused by the applicant to the complainant over a lengthy period of serious sexual abuse. The Court concluded that the terms of imprisonment of 20 years were manifestly excessive and substituted for them sentences of 12 years imprisonment.
[74]
[52] I now turn to a consideration of the authorities relied on by counsel for the appellant. R v S has already been discussed. The applicant in R v BAY[9] was sentenced after a late plea of guilty to one count of maintaining an unlawful sexual relationship with a child under the age of 16 and to 36 other counts of sexual offences, including incest. The complainant was the applicant's stepdaughter. The offences spanned a 10 year period commencing when the complainant was seven years of age.
[75]
[53] In the course of the first incident in which offending occurred, the applicant handled the complainant's vulval area, forced her to masturbate him and inserted his penis in her mouth. The complainant was indecently dealt with two or three times a fortnight over the next two years. Other abuse, which seemed to have occurred intermittently over the period of offending, included digital penetration of the vagina and anus, cunnilingus, fellatio, requiring her to masturbate him and occasions of non-consensual sexual intercourse. The offending conduct was accompanied by "physical assault and threats of further physical violence and ... threats that if she did not comply with his demands then he would sexually abuse her younger sisters." The applicant's sentence of 12 years imprisonment on the maintaining count was reduced to 10 years to take into account his guilty plea and the 10 year terms of imprisonment imposed on the other counts were reduced to eight years.
[76]
[54] The applicant in R v SAK[10] was sentenced to terms of 11 years imprisonment and 11 years and three months respectively for counts of maintaining a sexual relationship with stepdaughters [M] and [P]. He was convicted at the same time of counts of rape and sentenced to nine year terms of imprisonment. All counts were ordered to be served concurrently. The convictions in respect of [M] were by a jury. The maintaining count in respect of [M] involved conduct over a period of about 10 years commencing when [M] was five. The applicant's conduct progressed from indecent dealing to rape when [M] she was 12 "and to her submission to other sexual intercourse until she was about 15. It involved very many occasions of sexual exploitation ... in a household in which [M] was subjected to physical violence from [the applicant], both in the apparent exercise of discipline and more generally, and that violence was described by her as the principal reason for her submitting without much complaint to his abuse." [P] was raped on at least 10 occasions during the maintaining period which overlapped with that in respect of [M]. The applications for leave to appeal were dismissed.
[77]
[55] The complainant in R v KN[11] was the stepdaughter of the applicant, who was in his late fifties. The offending commenced with the applicant touching the complainant on her breasts and vulval area and with his masturbating himself against her when she was approximately nine. Sexual intercourse occurred shortly before the complainant's twelfth birthday and continued regularly thereafter. The applicant secured the complainant's silence by "suggesting she would suffer consequences from her mother if she complained." The sentence of eight years imprisonment imposed for maintaining a sexual relationship after a plea of guilty was not disturbed.
[78]
[56] The applicant in R v SAR[12] was between 27 and 34 years of age at the time of committing the offences of maintaining a sexual relationship with a child under 12, two counts of unlawful sodomy with a child under 12 and seven counts of indecent treatment of a girl under 14 years. After a plea of guilty, he was sentenced to a term of imprisonment of eight years on each of the sodomy and maintaining counts.
[79]
[57] The two complainants were the applicant's stepdaughters. One was aged between eight and 11 years and the other between six and eight years during the period of offending. The offending conduct, which took place regularly, included fondling of the victim's "bottom, vagina and chest; kissing ... on the lips with an open mouth ...; placing his penis between ... thighs or buttocks and simulating sex until orgasm; ... placing the [victim's] hand on his erect penis as he was fondling [the] vagina and bottom." It was said that the applicant's conduct "has had and continues to have a dramatic detrimental effect on [the victims'] lives." He was "a useful community member" with an excellent work history. He voluntarily confessed to police before any complaint was made, pleaded guilty by ex officio indictment and had not reoffended for over 12 years prior to his conviction. His sentences of eight years imprisonment were set aside and replaced by sentences of seven years imprisonment with a recommendation for post-prison community-based release after two and a half years.
[80]
[58] The applicant in R v BAO[13] was about 48 years of age when he commenced his offending conduct against the complainant, who was then aged nine or 10. He was living on a rural property owned by the complainant's parents. His conduct included digital and penile penetration of the complainant's vagina and oral sex once or twice a week over the offending period. There were numerous incidents of anal penetration and when the complainant was about 11, the applicant provided her with a vibrator which he had her use on herself in his presence on at least three occasions. An application for an extension of time for leave to appeal against the applicant's nine year sentence was dismissed.
[81]
[59] There are significant aspects of the offending conduct in the cases relied on by the respondent which are not exhibited in this case, or which are not exhibited to the same degree. The complainant in R v A had a child to the applicant when she was only 14, thus impacting profoundly on her physical and emotional wellbeing, as well as on her ability to enjoy a normal life as a teenager and young woman.
[82]
[60] The offending in R v S involved anal as well as vaginal intercourse with a child of six or seven and other degrading conduct. The applicant in R v SAG engaged in the protracted sexual abuse and corruption of four stepdaughters.
[83]
[61] In R v TS, Mackenzie AJA, with whose reasons Fraser JA and Daubney J agreed, identified a sentencing range for maintaining offences of "generally between 10 to 15 years."[14] The cases to which his Honour had reference included ones in which there had been timely and late pleas of guilty. Williams JA in R v KAI[15] referred to a broad range "from seven to 13 years with some exceptional cases justifying sentences in excess of 13 years."
[84]
[62] In most, if not all of these cases, the offender, in gross betrayal of the trust of his victim, subjected her, over a usually protracted period, to sexual abuse for his own selfish gratification with no regard for her physical or emotional wellbeing. That combination of circumstances, which exists here, plainly calls for a sentence sufficient to mark society's abhorrence of the offender's conduct and one calculated to deter others from like offending.
[85]
[63] R v S, R v SAG, R v SAK and R v BAQ are of limited assistance for present purposes, as in those cases the appellate court was not called on to determine the sentence which should have been imposed. R v KN is also of limited assistance because of the matters which led the appellate court to extend particular leniency.
[86]
[64] To my mind, R v TS and R v A provide the most useful bases for comparison for present purposes. The culpability of the offender in R v A was greater than the appellant's and the offender, as well as showing no remorse, made no admissions of any offending conduct. The offending conduct would also seem to have had substantially worse consequences for the victim in R v A in which the sentence imposed was 14 years.
[87]
[65] The overall criminality of the appellant's conduct is materially less than that of the offender in R v TS. He had been sentenced after a plea of guilty but his victim was his daughter and the offending commenced when the victim was three. Also, the offender's conduct in R v TS appears to have been accompanied by more violence and the infliction of more pain. The struggling and crying victim, who suffered "great pain and distress" was sodomised on at least one occasion. Although the appellant was convicted after a trial, he made substantial admissions to the authorities and it is reasonable to conclude that those admissions secured his conviction on some of the counts on the indictment. His age, health and lack of prior convictions were also relevant considerations.
[88]
[66] For these reasons, I have concluded that an appropriate sentence to be imposed for count 1 as a head sentence to reflect the overall criminality of the appellant's conduct is 12 years imprisonment. It is unnecessary to impose a sentence for count 9 as the offence in count 9 was part of the offending conduct particularised in respect of the maintaining count and was found by the jury to constitute a circumstance of aggravation of the offence of maintaining.
[89]
[67] Accordingly, I would order that: the appeal against conviction be dismissed; the application for leave to appeal against sentence be allowed; the appeal against sentence be allowed; the sentences imposed in respect of counts 1 and 9 be set aside, the appellant be sentenced to a term of imprisonment of 12 years for count 1 and the declaration made by the primary judge under s 161B of the Penalties and Sentences Act be set aside.
[90]
[68] WHITE J: I have read the reasons for judgment of Muir JA and agree with his Honour's reasons and the orders that he proposes.
[91]
[2]MacKenzie v The Queen (1996) 190 CLR 348 at 368.