R v. L [2002] QCA 268 (26 July 2002)

Court of Appeal (Qld)|2002-07-26|Before: Pherson JA, Jerrard JA, Wilson J

The applicant points to the fact that there would have been no proceedings against him had he not volunteered these offences to the Western Australian Police in May 2000. He also points to his having voluntarily begun a course of counselling with Safe Care in Western Australia in May 1999. He attended five out of a possible 10 weeks of an introductory group program, then some individual sessions, and then 35 out of 39 group treatment programs between the 17th of July 2000 and July 2001.

He was assessed in September 2001 as having made considerable progress over his time of attendance at Safe Care, and having gained insight into some of the explanations for his own offending against his daughter, together with a better understanding of the damaging impact his behaviour had had on her. His ex-wife and his two youngest sons also attended Safe Care, apparently at his instigation, as did his current partner and her two daughters from an earlier marriage.

However, I consider that an examination of the extensive list of comparative sentences provided by the prosecution in respect of matters of incest, and matters where there has been a conviction for maintaining an unlawful sexual relationship with a daughter, show that without those mitigating factors the appropriate sentence for imposition upon "L" would have been a sentence of at least five years' imprisonment, and perhaps six years. For example, in the matter of R v B [2000] QCA 42, a 63 year old man with limited life expectancy and no criminal record, who was sentenced for two counts of incest committed 20 years earlier, did not succeed in having overturned the sentence of six years with a recommendation for release on parole after two years.

It was remarked in the judgment of the Court that a sentence of imprisonment for six years was in accordance with the decision of the matter of R v G, reported in [1997] 1 Qd R 584. On the hearing of the instant appeal, there were no judgments of this Court referred to since its judgment in R v B suggesting that any lower level of sentence than six years would have been appropriate absent the mitigating factors I have mentioned.

The applicant has referred to sentences imposed in a number of matters in which there was not a conviction for incest, but in which a male offender had been guilty of maintaining a sexual relationship with a daughter or stepdaughter, or both.

I think those cases show that, absent the commission of the act of incest, "L" may have had an arguable case for a lower head sentence from the sentencing Judge. For example, in the matter of R v C, No 170 of 1994, an offender who maintained an unlawful sexual relationship with his daughter was sentenced to three years' imprisonment after a trial. Likewise, in the matter of R v L, an offender maintaining a relationship with his daughter received a similar sentence after a trial. Those sentences were not altered by this Court.

However, the cases referred to by the applicant are not all one way in his favour. In the matter of R v G, No 168 of 1992, an offender who maintained a sexual relationship with his daughter, which included an act of incest for which he was not separately convicted, received a sentence on appeal of four and a-half years' imprisonment after a plea of guilty. That sentence was reduced from one of seven years originally imposed. This Court when reducing that sentence remarked that it was proper to look at sentences imposed for incest as affording a guide to the appropriate sentence, in a case of the nature of R v G. Those remarks were made some eight years before the judgment of this Court in R v B.

Further, in the matter of R v S [2001] QCA 054, an offender who pleaded guilty to a count of maintaining an unlawful sexual relationship with his stepdaughter, to 21 separate counts of indecent treatment of that stepdaughter, and to one further count of indecent treatment of his natural daughter, had his sentence of six years' imprisonment with parole recommended after serving two years reduced on an appeal to this Court, to a sentence of four and a-half years' imprisonment with parole recommended after 18 months.

That offender was considered to have very strong circumstances of mitigation that he had himself voluntarily sought out the police, to whom he had confessed his serious wrongdoing; and had then arranged counselling for himself, his complainant daughter and other members of his family. Mr S's apparently genuine contrition does seem to have gone further than "L"'s.

In the circumstances, it appears to be that the matters which may properly be urged in mitigation on "L"'s behalf have been appropriately taken into account in the sentence of the learned trial Judge, as demonstrated by his sentencing remarks and the orders he made. The sentence does not appear manifestly excessive by comparison with sentences imposed by this Court where incest has been proven.

In my judgment, although ably presented, the application for leave to appeal against sentence should be dismissed.

McPHERSON JA: The order is that the application for leave to appeal against sentence is dismissed.

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Cases Cited (1)