R v MBG & MBH [2009] QCA 252

SUPREME COURT OF QUEENSLAND

CITATION: R v MBG & MBH [2009] QCA 252

PARTIES: R v MBG (applicant) / R v MBH (applicant)

FILE NO/S: CA No 307 of 2008 / CA No 287 of 2008 / DC No 2826 of 2008

DIVISION: Court of Appeal

PROCEEDING: Sentence Applications

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 1 September 2009

DELIVERED AT: Brisbane

HEARING DATE: 18 August 2009

JUDGES: McMurdo P, Holmes JA and White J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Applications for leave to appeal dismissed

CATCHWORDS: Criminal law – appeal and new trial – appeal against sentence – grounds for interference – sentence manifestly excessive or inadequate – where applicants, husband and wife, pleaded guilty to maintaining unlawful sexual relationship with seven to eight year old daughter, and to 13 other sexual offences, including two counts of rape, against her, and to sexual offences against friends of their daughter, a 14 year old and nine year old, including a count of rape against the latter; and male applicant pleaded guilty to indecent treatment of another nine year old – where applicants each sentenced to 10 and a half years imprisonment on the maintaining count, with a serious violent offence declaration, and to shorter, concurrent terms for the other sexual offences – whether sentences manifestly excessive / R v BAO [2004] QCA 445, cited / R v BAX [2005] QCA 365, cited / R v BAY (2005) 157 A Crim R 309; [2005] QCA 427, cited / R v BBM [2008] QCA 162, cited / R v C; ex parte A-G (Qld) [2003] QCA 134, cited / R v DAF [2004] QCA 368, cited / R v Dickeson; ex parte A-G; R v Dickeson [2004] QCA 78, cited / R v HAP [2008] QCA 137, cited / R v R [2000] QCA 279, cited / R v TR & FV; ex parte A-G (Qld) [2008] QCA 221, cited

COUNSEL: The applicants appeared on their own behalf / M J Copley SC for the respondent

SOLICITORS: The applicants appeared on their own behalf / Director of Public Prosecutions (Qld) for the respondent

[1] McMURDO P: The applications for leave to appeal against sentence should be refused for the reasons given by Holmes JA.

[2] HOLMES JA: The applicants for leave to appeal against sentence are husband and wife. They were jointly charged with, and pleaded guilty to, one count of maintaining a sexual relationship with a child, their daughter A, who was seven to eight years old during the period over which the relationship was alleged; two counts of rape and one count of attempted rape of A; 10 counts of indecent treatment of A with the circumstances of aggravation that she was under 12 years, and was their lineal descendant; rape of B, a nine year old friend of A; three counts of indecent treatment of B, with the aggravating circumstances that she was under 12 years and under their care; and indecent treatment of C, B’s 14 year old sister, with the aggravating circumstance that she was under their care. The male applicant was charged with a further count of indecent treatment of a fourth child, D, a nine year old, with the aggravating circumstances that she was under 12 years and was under his care. Each was sentenced to a term of 10 and a half years imprisonment in respect of the maintaining offence, with a serious violent offence declaration, while shorter, concurrent terms were imposed for the other offences.

The offences

[3] The offending came to light when the applicants’ teenage son began to watch a video recording he had found in the house, and discovered that it contained some 35 minutes of footage showing the sexual abuse of A. Counts 2 to 11 were based on what could be seen in the video recording. Counts 2 and 3, which were rape counts, concerned A’s performing fellatio upon her father in her mother’s presence. Counts 4 to 10, which were charges of indecent treatment, involved the following acts: the female applicant fellating the male applicant in A’s presence; the placing of the male applicant’s semi-erect penis inside the leg opening of the child’s underwear; on one occasion the placing of a vibrator against A’s anal and vaginal areas, and on another, its application to her vaginal area; the male applicant touching the female applicant’s vulva in front of A; the child’s rubbing an object in her mother’s vaginal area; and the use by the female applicant of a vibrator in A’s presence. Count 11 was an offence of attempted rape: the male applicant attempted, unsuccessfully, to insert his penis into A’s vagina. Count 12 was constituted by the recording of the video, while count 13, a charge of possessing child exploitation material, was based on the possession of the video recording.

[4] The maintaining count, count 1, was based on those acts, but also on others which A revealed when police officers interviewed her. She told them that the sexual activities had begun when she was seven years old. There were occasions on which she and her parents performed oral sex on each other. (Count 14 was based on A’s description of her father performing an act of cunnilingus on her mother in her presence.) On other occasions, her parents watched what she described as “sex movies” with her. (Count 15, one of the indecent treatment counts, was particularised as the wilful exposure of the child to an indecent film.) Sometimes the three of them would “play with each other” in the spa and her parents would have sexual intercourse in front of her. These activities happened, she said, “probably a hundred times”. The maintaining period was charged as between 10 September 2005 and 28 August 2007, but the Crown conceded it could not be identified with precision; it was somewhere between one and two years.

[5] B and C were the daughters of longstanding friends and neighbours of A’s parents. A told the police of an occasion when the child B was in the spa with her and her parents: B was told to, and did, perform fellatio on the male applicant. B was interviewed and said that during that incident she had allowed the applicants to touch her vaginal area (count 16, indecent treatment), and had performed fellatio on the male applicant (count 18, rape). She had seen the female applicant performing cunnilingus on A (count 17, indecent treatment: exposing B to an indecent act). Later, at the applicants’ suggestion, B sat on the male applicant’s penis and he bounced her up and down (count 19, indecent treatment).

[6] B’s older sister, C, went to the applicants’ house to baby-sit A; but when she arrived, she was told A was not there and she no longer needed to baby-sit. Instead, she was encouraged to drink alcohol and shown a number of sex aids, including a vibrator (count 20, a charge of indecent treatment, particularised as wilfully exposing C to an indecent object). She declined to join the applicants when they took their clothes off and got into the spa. A fourth child, D, was also the child of a friend of A’s parents. She stayed overnight at the applicants’ house and was exposed by the male applicant to an indecent film and indecent objects (pornographic magazines and a vibrator), giving rise to count 21, the final count on the indictment, and the only one charged against the male applicant alone.

Matters put before the sentencing judge

[7] Both applicants were aged between 36 and 38 years of age over the period of their offending. The male applicant had some criminal record for stealing, assault occasioning bodily harm, and producing and possessing dangerous drugs; all were dealt with in the Magistrates Court and resulted in probation, community service or fines. The female applicant had been before the Magistrates Court on one occasion on charges of possessing dangerous drugs and utensils; she was fined and no conviction was recorded.

[8] A number of victim impact statements was tendered. A said that she did not feel safe; her older sister, who had assumed responsibility for her care, wrote of her concern and anxiety. The mothers of B, C and D expressed their distress and feelings of betrayal, and described the difficulties, particularly in relation to the younger girls now moving into adolescence, of dealing with the children’s experiences at the hands of the applicants.

[9] The child A had, the prosecutor submitted, been corrupted, performing sexual acts with her father, sometimes in the presence of her friends. Those friends were groomed for abuse and one was ultimately abused. The introduction of C to alcohol was an aggravating feature. The two applicants were equally culpable. The appropriate sentencing range, the prosecutor said, fell between 13 and 16 years.

[10] The applicants’ counsel submitted in their favour that both had good work histories. At the time of their offending, they had been amphetamine users, a fact to which they attributed their behaviour. Both had undertaken drug intervention programs while in custody, and the female applicant had undertaken other courses, including a vocational literacy course, and counselling. There was a full hand-up committal with early pleas of guilty, so that none of the children were required to give evidence. Counsel for the male applicant suggested that a proper sentencing range, after allowance for the pleas of guilty, fell between nine and 11 years, while counsel for the female applicant urged a nine year sentence as appropriate.

The sentencing judge’s remarks

[11] The learned sentencing judge commented on the alarming familiarity of the child A with sexual activity; she did not, in the video recording, show any reticence, surprise or distress at being asked to participate, and understood what was required of her. The offending was long-term and persistent. What made matters worse was that the child could not obtain protection from either parent because both were interfering with her. An additional feature was the involvement of other children in grooming for, or actual participation in, sexual activity. The victim impact statements had indicated that there were “not insubstantial after-effects” for the four children, three of whom were very young.

[12] The learned judge emphasised, as the strongest point in the applicants’ favour, the fact that, by their timely guilty pleas, they had taken a course designed to cause the least possible distress to the complainants. None of the children had been required to give evidence; they had not had to ventilate their experiences before the court; and, most importantly, they had not been cross-examined by defence counsel. The applicants had no criminal history of real concern, and each had a good work record. Their ingestion of amphetamines did not reduce their moral culpability; it was, however, in their favour that both were making attempts to deal with their drug habits, while the female applicant was undertaking counselling.

The applicants’ submissions on the application for leave to appeal

[13] The applicants, who were unrepresented on this application, began by making some complaints of the submissions put to the sentencing court. It was said that the Crown had wrongly asserted that the unlawful sexual relationship began when A was seven (when, on the applicants’ contention, she was eight), and that sexual activity occurred on some 100 occasions. But both of those statements were accurate reflections of what the child had told police in her interview, and were not challenged by the defence at sentence. (Indeed, it is difficult to see how such a challenge could have been resolved without cross-examination of A, which would rather have undercut what the learned judge described as the principal point in the applicants’ favour.) Both applicants claimed that they had themselves suffered (unspecified) sexual abuse, which had led to their later drug use. That was not a feature put before the learned sentencing judge, and there is no reason that their assertion to that effect, made now by way of submission, should be received or acted upon here.

[14] The applicants’ argument that the sentence was manifestly excessive requires lengthier consideration. They contended that it was of similar severity to sentences imposed in other cases involving much more serious factual circumstances, citing R v C; ex parte A-G (Qld) [2003] QCA 134; R v TR & FV; ex parte A-G (Qld) [2008] QCA 221; R v BBM [2008] QCA 162; R v HAP [2008] QCA 137; R v DAF [2004] QCA 368; R v BAX [2005] QCA 365; R v BAY [2005] QCA 427; R v BAO [2004] QCA 445; and R v R [2000] QCA 279. All involved offenders who had pleaded guilty. Those cases were worse, the applicants said, because they involved vaginal penetration and violence used against several complainants.

[15] R v R, R v HAP, R v BAY, R v BBM and R v C; ex parte A-G (Qld) were, in fact, all cases involving a single complainant. All concerned offenders who ultimately received sentences of 10 or 11 years imprisonment. In each case, the offender had pleaded guilty to maintaining a sexual relationship with a child, with a circumstance or circumstances of aggravation; and in each case the particulars of maintaining included rape or carnal knowledge. In R v R, a sentence of 11 years imprisonment imposed at first instance was upheld; in R v HAP, a sentence of 13 years imprisonment was set aside and a sentence of 11 years was substituted; in R v BAY, a sentence of 12 years was replaced by one of 10 years; in R v BBM, this Court, re-exercising the sentencing discretion because of error below, substituted a sentence of 10 years imprisonment; and in R v C; ex parte A-G (Qld), a sentence of nine years imprisonment was set aside and replaced by a sentence of 10 years.

[16] The applicants are right to say that each of those cases involved a more serious sexual act or acts, in the form of vaginal penetration or sodomy (although it should be remembered that there was an attempt at vaginal penetration of A in the present case). More importantly, however, they did not have the very significant feature of this case, of involving co-offenders, the natural parents of the child most seriously abused; nor did they involve, as this case did, the enticement of a number of children into sexual activity. Although comparison of different types of appalling conduct is not necessarily enlightening or productive, I do not think the contention that those cases involved worse factual circumstances is sustainable.

[17] Similar points of distinction apply to R v BAO. The applicant there had been convicted of maintaining a sexual relationship, one count of sodomy and one count of indecent dealing, and was sentenced to nine years imprisonment. His application for an extension of time within which to seek leave to appeal against sentence was rejected on the grounds that it had no significant prospect of success. Again, his offending involved a single child and there was no co-offender. In addition, the fact that the Court dismissed BAO’s application for an extension of time on the basis that he had no real prospect of showing that the sentence was manifestly excessive means that the case is of limited assistance to the applicants’ arguments: the result does not demonstrate that a higher sentence might not equally have been available in that case.

[18] R v DAF and R v BAX did involve multiple complainants. In R v DAF, a sentence of 12 years was imposed on an applicant for leave to appeal against sentence in respect of a number of counts of sexual offences against six children, including one count of maintaining an unlawful sexual relationship. The offences were committed before 1 July 1997; consequently, the serious violent offence provisions did not apply. The sentence was upheld as not manifestly excessive. R v BAX concerned an offender who had pleaded guilty to three counts of maintaining a sexual relationship with three step-children. He was sentenced to nine years imprisonment and each conviction was declared to be for a serious violent offence. His application for leave to appeal against the sentence was rejected. Those cases patently did not involve the striking feature of this case, the joint involvement of the child’s parents. Again, given that each case involved the rejection of an application for leave to appeal, it does not follow that, had sentences of the order of that imposed here been imposed in those cases, they would have fallen outside a proper sentencing range.

[19] R v TR & FV; ex parte A-G (Qld) does have the common feature with this case that it involved parents who acted together to corrupt their daughter. In that case, however, the primary offence was procuring their daughter, aged between 12 and 13 at the relevant time, to engage in prostitution. The maximum penalty was 14 years imprisonment; the mother was sentenced to 13 years and the father to 10 years imprisonment on that count, with eligibility for parole after four years and three years respectively. (It was not an offence which fell within the category of “serious violent offence”.) The maintaining charge was unusual. It consisted, in the case of the mother, of procuring the girl to engage in indecent acts with a number of different men as part of the prostitution business, and in the case of the father, of procuring her to assume indecent positions in order to photograph her and use the images to promote the business on the internet. The father’s sentence of seven years imprisonment on the maintaining charge was left undisturbed on the Attorney-General’s appeal, but the mother’s was increased from six years to nine years imprisonment. There are obvious differences from this case: the daughter was older and the focus was on the prostitution enterprise; there was no sexual activity with the parents.

[20] Counsel for the Crown relied on R v Dickeson; ex parte A-G; R v Dickeson [2004] QCA 78. In that case, the respondent to an Attorney-General’s appeal, who had also sought leave to appeal against sentence, was sentenced, on pleas of guilty, to 10 years imprisonment in respect of two counts of maintaining a sexual relationship with a child under 16 years, with a circumstance of aggravation. He was also charged with one count of indecent treatment and one count of possessing child abuse computer games. The two complainants in the maintaining charges were girls aged six and eight, whose mother Dickeson had befriended. He had taken video footage of himself and the children engaged in various forms of sexual activity, including penile vaginal intercourse and fellatio. As in the present case, the children appeared, in the tape, to be unperturbed by the activity in which they were involved. A third child was also involved, to a lesser extent: she was filmed, sometimes in a position which revealed her genitalia, but she did not engage in any indecent act. A sentence of 10 years imprisonment was not disturbed.

[21] Dickeson’s conduct involved some sexual acts more serious than those here; but, at the risk of repeating the obvious, he acted alone, and had no biological connection with, or parental responsibility for, any of his victims. Dickeson does share a striking feature of the present case: it involved the corruption of young children in a similar way, made manifest on videotape; and the Crown has some basis for contending that the ten year sentence imposed on the offender there supports the sentence here.

Conclusion

[22] Speaking more generally, it is true that this case does not involve some of the aggravating features often seen in maintaining cases, and listed in R v SAG [2004] QCA 286.¹ No violence or threats were used on the children; there was no evidence of actual vaginal penetration or sodomy of A; and the period of the offending relationship did not extend over a number of years. On the other hand, this case is extraordinary in that it involved parents acting in concert, and for their mutual gratification, to introduce their own young daughter to a range of sexual activity, the wickedness of which was made worse by their attempts to involve more young girls in similar activity. Those features of the case bring it well within the range for which counsel for the male applicant below submitted, of nine to 11 years; and within which his Honour in fact sentenced.

[23] The sentences imposed were not manifestly excessive. The applications for leave to appeal should be dismissed.

[24] WHITE J: I have read the reasons for judgment of Holmes JA and agree with her Honour that the shocking conduct of a mother and father towards their young daughter as well as the attempted corruption of the daughters of their friends make this a serious example of the offences to which they pleaded guilty. Her Honour’s analysis of that conduct together with her discussion of comparable sentences makes clear that the sentence imposed was not manifestly excessive and the applications for leave to appeal should be refused.

Footnotes

1. At [19]. ↩