_R v LJ_

Court of Appeal (Qld)|2004-04-14|Before: McPherson and Williams JJA, Holmes J, Separate reasons for judgment of each member of the court, each concurring, as to the order made

Director of Public Prosecutions (Queensland) for the respondent

HOLMES J: The applicant for leave to appeal against sentence was convicted after a trial of six counts of indecent dealing with a child under 12 years, seven counts of incest, one count of assault occasioning bodily harm, and one count of sodomy. All offences were committed against his daughter.

He was sentenced to 14 years in respect of the first of the incest counts committed when the complainant was about 12, and to lesser concurrent sentences in respect of the remaining counts.

The first of the offences was committed when the complainant was seven years of age and involved touching of her breast area and genitals.

Later when she was about nine years old, the applicant seems to have developed a practice of requiring her to sleep in his bed and committed a number of offences in that context putting his fingers in her vagina, making her rub his penis, and on one occasion which formed the basis of a count, making her suck his penis and swallow the ejaculate.

When the complainant was 12, the applicant had full sexual intercourse with her for the first time.

Of the remaining counts, there was assault occasioning bodily harm which involved a severe beating with a strap followed by the applicant sodomising the complainant as an extension of the punishment. Another count involved the applicant having intercourse with the complainant and with a female cousin at the same time; and another again, intercourse with the complainant while the complainant's brother was made to have intercourse with the cousin in the same double bed. The remaining offences involve two instances of vaginal and one of anal intercourse. The conduct continued until the complainant was 18.

The applicant was 59 years of age at the time of sentence. At the time of the commission of the offences he was between 20 and 30 years of age.

The learned sentencing Judge noted his good work history and significant health problems and the absence of any prior convictions. Those mitigating factors operated, he said, to reduce a sentence which he would otherwise have imposed of 15 years' imprisonment to 14 years.

The applicant submits that the sentence imposed is outside the appropriate range for offences of this kind committed on a single complainant. A number of cases were referred to. It is not necessary to go in detail to those except to observe this: that they were not, with respect, of great assistance. Generally, they tended to involve step-parents and maintaining charges rather than incest charges, pleas of guilty, and in a couple of instances the sentences entailed serious violent offence consequences. This case clearly enough does not involve any serious violent offence implications because the offences predate the legislation which introduced the requirement for a greater period to be served before parole.

Of the authorities placed before us, it seems to me that the Queen v. AP [2003] QCA 445 relied on by the Crown is probably the closest to the present situation. It involved a long-term relationship of violence and abuse, with the relationship there of foster father with a child. The conduct seems to me to have been at a similar level of abhorrence. There the result was a sentence of 14 years' imprisonment imposed on appeal in place of a 15 year term.

But I should say here that it seems to me that what is particularly repellent about this case is that it concerns a natural father in circumstances where one would expect the bond and sense of obligation to care and protect his daughter would be so much the stronger. Instead, he seems to have used his position in the household as the child's father to abuse her and to use, on one occasion, her brother in the course of that abuse.

I do not think there is any magic in the fact that it was a single complainant. It is the conduct that matters. This was an extended period of offending over 11 years with real depravity about it. The sexual intercourse at the age of 12, the beating, and the sodomising, and the involving of the younger brother are all features which, in my view, amply warranted the sentence that was imposed.

I would dismiss the application for leave to appeal against sentence.

McPHERSON JA: I agree. I will not say anything in case I say too much, if that is possible, in condemnation of the applicant's conduct. His own health problems seem to me to pale into insignificance when one sees what he subjected his daughter to. I agree the appeal should be dismissed.

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

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