R v P [1997] QCA 453

Court of Appeal (Qld)|1997-12-19|Before: Davies JA, Lee J, Cullinane J

I have had the advantage of reading the reasons for judgment of Lee J. I agree with him that the application should be refused and generally with his reasons for that conclusion. In particular I agree that, on the basis of comparable sentences for incest, in particular Moore C.A. No. 215 of 1989, Motbey C.A. No. 46 of 1988 and Thomas C.A. No. 327 of 1989, the effective sentence imposed here was not manifestly excessive and I would refuse the application on that basis. But I also agree that where incest plainly involves rape, as this one does, sentences imposed for rape offences are a useful comparison. It is true that absence of consent must be proved in the latter offence but in the present case there could be no reasonable doubt about that. Sentences imposed for rape, in like circumstances, support the conclusion that the sentence imposed here was not too high.

The applicant seeks leave to appeal against sentences imposed on him in the District Court at Rockhampton on 22 August 1997 following his pleas of guilty and convictions in the District court at Emerald on 1 August 1997 to six counts of indecently dealing with a girl under the age of 14 years, four counts of incest, and one count of aggravated assault occasioning bodily harm.

The applicant was sentenced to three years imprisonment on each of the six counts of indecent dealing, seven and a half years imprisonment on each of the four counts of incest, and twelve months imprisonment on the count of assault occasioning bodily harm, all sentences to be served concurrently. The learned sentencing judge declared the period of presentence custody from 1 August 1997 to 22 August 1997 of 22 days to be part of the sentence served. His Honour was of the view that, had the matter proceeded to trial, a sentence of about nine years imprisonment would have been imposed. Allowing for the guilty plea and other circumstances, His Honour considered that an effective sentence of seven and a half years imprisonment was appropriate. There was no recommendation for parole.

The maximum sentence for incest is and has always been life imprisonment since the Criminal Code of Queensland commenced in 1901. At the time of the offences, the maximum sentence for indecent dealing was seven years imprisonment. This has subsequently been changed to ten years imprisonment with respect to all children under 16 years, and fourteen years imprisonment in the case of a child under 12 years. The maximum sentence for assault occasioning bodily harm at the time was three years imprisonment. It is now seven years imprisonment.

All offences involved the same complainant who is the applicant's natural daughter. She was born on 9 June 1972. The offences charged occurred over a seven year period from when she was almost 11 years of age through to when she was 18 years of age, but sexual intercourse continued thereafter until she was 21, although not subject to any charges. She then left home. She was 25 years of age at the date of the proceedings against the applicant. The circumstances of the offences as outlined to the learned sentencing judge without objection from defence counsel followed after the Crown Prosecutor's statement that the complainant's life was littered with episodes of sexual contact between herself and her father (ie. episodes in addition to the offences charged).

Count 1 - This incident occurred when she was almost 11 between 1 January 1983 and 9 June 1983 at Mackay. She was in bed asleep, wearing a nightie and underpants. She was woken by her father who tickled her and touched her with his finger in the area of her vagina. The Crown Prosecutor added that this conduct occurred a number of times after that and progressed to the incident the subject of count 2.

Count 2 - This incident also occurred at Mackay between 9 June 1983 and 9 June 1984. The appellant came into the complainant's bedroom when she was asleep and removed her underpants and touched her in the area of her vagina. She tried to get out of bed but the applicant pulled her back, told her to be quiet and not wake up her mother. She felt confused and upset and too scared to tell her mother. She was afraid of her father and said she had trouble sleeping.

Count 3 - This incident also occurred between 9 June 1983 and 9 June 1984 at Mackay. Unlike other incidents, this occurred in the daytime when her mother was away. The complainant was in the applicant's bedroom and as it was daytime, she was not fearful that anything would happen. The applicant asked for a cuddle and when she did so he made her sit on top of him and straddle him with one leg each side of his body. He was wearing only a pair of underpants and she was wearing shorts and a t-shirt. He held her each hip, pulled her back and forward over his underpants for masturbation. He ejaculated. She did not know what the wet area was on his underpants.

Count 4 - This incident occurred between 9 June 1984 and 9 June 1985 at Mackay. She was about 12 at the time and in grade 7. She was lying on the floor reading. The appellant lay down beside her and fondled her breasts outside her shirt. They had begun to develop due to puberty. She asked him to stop. He then put his hand under her shirt and fondled her breasts. The Crown Prosecutor added that the complainant recalled that when this event occurred, the applicant was still coming into her room at night time. It was a regular occurrence.

Count 5 - This incident occurred between 9 June 1984 and 9 June 1985 at Mackay when she was 12. She was lying on the lounge room floor on her stomach watching television. The applicant came behind her, pulled her knickers off and held her down by putting his weight on her back. He attempted digital penetration of her vagina. This hurt her considerably. She began to cry but the applicant persisted. He did not succeed and got up and left her alone. She was still crying when he left.

Count 6 - This incident also occurred between 9 June 1985 and 9 December 1985 at Mackay. The complainant said that around that time the applicant made her masturbate him with an electronic massage tool which belonged to the family and had been used by her mother on her lower back. It was a vibrating type of instrument. The complainant said that the applicant held her hand on the tool and guided her hand so that she was rubbing the tool across his inner thighs and his genitals area. He tried to put her spare hand on his penis but she pulled away as she didn't want to do that.

The learned sentencing judge was also told that this type of general behaviour continued through to about September 1987 when the applicant opened up a branch of the family business in Moranbah. The business and living quarters where both in a shed which contained two beds. The complainant went with the applicant during the week and returned home on weekends. By this time she was 15 or 16. She worked in the family business. The applicant commenced drinking heavily. The complainant said that the applicant would buy only wine or beer and that if she was thirsty and wanted a drink all that was available was wine or beer. The applicant insisted that she drink alcohol with him whenever he drank. She said that if she tried to resist he would persist with his request for her to give him a cuddle. She said that if she refused he threatened her with words to the effect "if you don't come and give me a cuddle I'll come over there and rape you". She said that at this stage of the relationship she was in constant fear so in general terms she complied with his requests to avoid threats or physical abuse.

Count 7 - This incident occurred on 9 June 1988 at Moranbah when the complainant had just turned 16. On the night before her 16th birthday, she and her father had been drinking. She woke up next morning and found herself in her father's bed. Both were naked. She tried to get up but he pulled her back and said "let's make love". She refused and he said "we already did last night". Her response was that he was lying and that she could not remember any such incident. After fifteen minutes or so the applicant became aggressive and rolled the complainant on to her back and was trying to kiss her. She tried to pull away but was not strong enough to do so. He lubricated her vagina with saliva on to his fingers and after several attempts at inserting his penis into her vagina, succeeded. She said that he began thrusting his penis in and out of her which caused her a lot of pain. The applicant ejaculated. The complainant said that this was the first occasion that she had had sexual intercourse with any person.

The learned sentencing judge was told that acts of sexual intercourse occurred quite frequently, approximately once a week for the next few months and that eventually the applicant would demand sex from the complainant every day and sometimes as much as twice a day. She said that if she refused, the applicant would become aggressive and violent towards her resulting in acts of sexual intercourse which were more painful than if she simply complied without resistance. She said that at no stage did she want to have sexual intercourse with her father and that it would always occur after they had been drinking and whilst they were staying at Moranbah. The complainant's mother was living at Mackay with three younger children of her marriage with the applicant.

Count 8 - This incident occurred between 1 June 1988 and 1 July 1989. After the complainant turned 17, which was 9 June 1989, she went to see a doctor and had a pregnancy test which was positive. As a result, she had an abortion on 14 July 1989 and was told that she was 4-6 weeks pregnant. As the only person with whom she had had sexual intercourse was her father, sexual intercourse which had occurred during the above period resulted in this count. At the time of the abortion, the applicant told the complainant that he would not have sexual intercourse with her anymore and that it would stop. He told her not to tell her mother who was not told of the applicant's treatment of her until she was 23. A couple of weeks later the complainant said she found courage to tell a friend what had been going on.

Count 9 - This incident occurred between 14 July 1989 and 31 December 1989 at Moranbah. The complainant was 17. About two or three months following the abortion, the applicant demanded sex from her and despite her refusal, he persisted and she complied to avoid violence and painful intercourse.

His Honour was further told that the applicant asked the complainant quite a few times and in spite of her initial refusal, she succumbed to his many requests. She felt she was not strong enough to be able to fight and that she feared verbal abuse and threats of violence. It was because she was scared of him and the physical pain that was caused that she would succumb to his advances. She also stated that after the first occasion after the abortion the intercourse recommenced on almost a daily basis. She said that the applicant said he was sorry and that he could not help it.

Count 10 - This incident occurred during the course of 1990. The complainant and the applicant had moved into a one bedroom flat at Moranbah. She turned 18 on 9 June 1990. She said that sexual intercourse continued, and that she complied in order to avoid a confrontation. She said that the applicant became possessive and very protective of her and placed restrictions on her or attempted to place restrictions on her having any relations with other men or even speaking with them. She continued working with her father in the family business.

Count 11 - This incident occurred between 1 January 1990 and 31 December 1990. After an argument she left the flat and went for a walk. The applicant followed her and told her to go home. He became very aggressive and was in a hostile mood. He commenced shoving her. He stood on her feet and then punched her in the face with a closed fist which struck her on the left side of the jaw. This knocked her off her feet and for about a week afterwards she could not move her jaw properly. The applicant grabbed her and told her to get upstairs and inside and go to bed. That incident comprised assault occasioning bodily harm, and was the last count on the indictment.

Thereafter, the learned sentencing judge was told that sexual intercourse continued a further three years or so until December of 1993. She was then 21. By this stage her mother had moved out to Moranbah three days a week in order to assist the family business so that the opportunity for intercourse had reduced. The complainant said that it was not until December of 1993, when as a result of arguments that she had with the applicant, and the general domestic environment, she decided to move out of the house. She nevertheless continued to work for a time in the family business until she resigned, and because she could not obtain other work she resumed in the family business for a short period but finally left.

After finally resigning from the family business she sought counselling as she was having trouble sleeping. She took a long time to tell her counsellor what her father had been doing to her. She commenced a relationship with another man more of her age and who gave her support. It was not until September of 1995 that she revealed to her mother what had been happening to her over the many years as she was growing up. Following counselling, she developed the confidence to report the matter to the police on 1 February 1996.

The Crown Prosecutor submitted that there was a substantial breach of trust and an abuse of inequality of their physical positions. The offences were committed over a substantial period of years, the offences had a significant emotional effect on the complainant who had been living in fear and isolation and has had counselling as a result. He said that the complainant's childhood memories are now littered with episodes of repeated sexual abuse and also the physical and emotional scars that have resulted. "Her father was basically a monster, preying upon her to satisfy his own sexual desires."

Following the Crown Prosecutor's submissions that a term of imprisonment in the order of five years was appropriate, having referred to the decision of R v Roache (Court of Appeal 125 of 1996, 9 August 1996 unreported), His Honour's immediate response was that his reaction to the facts of the current case was to place the sentence in a higher range than five years. His Honour indicated that he wished to consider all of the authorities carefully before deciding on the penalty. Counsel for the applicant then referred to various authorities and submitted the range was four to five years, with an appropriate recommendation because of the guilty plea and special circumstances he outlined in favour of the applicant. His Honour also informed counsel for the applicant that he had in mind a different sentence to the one that both counsel had supported. His Honour said during submissions that he had imposed several sentences for offences of this type.

In imposing sentence, His Honour referred to the fact that the offences had occurred over a ten year period until the complainant was 21 years of age. This was obviously a reference to the totality of the sexual conduct by the applicant and not just to the specific offences charged. His Honour said that the offences commenced when the applicant went into her bedroom at night and touched her around the area of the vagina and that the sexual touching continued and expanded over the next five years or so and occurred on a reasonably frequent basis. His Honour then referred to the move to Moranbah when the complainant was 15 or 16 years of age and the occasion of the complainant's 16th birthday when the applicant forced himself upon her and had sexual intercourse. His Honour added "that was the first occasion she had had sexual intercourse with you or with anyone else. Over time you forced yourself on her more frequently until the point was reached where sexual intercourse occurred on a daily basis". After referring to the occasion when the complainant fell pregnant and the abortion, His Honour noted that sexual intercourse resumed some two or three months later and said that "again, over time, the frequency of sexual intercourse reached a level that was almost daily". Reference was made to the possessive characteristics displayed by the applicant towards the complainant and his insistence in demanding sex.

His Honour concluded that the effect on the complainant has been that she lost a normal childhood which was dominated by the relationship that the applicant had imposed upon her and that the complainant was receiving ongoing counselling. The pleas of guilty were taken into account, and the expressions of remorse through the applicant's counsel, the fact that the applicant's relationship with his wife and family had broken down, the new relationship he formed with a child from that relationship, and the continued hard work by the applicant to provide support to both families. As indicated, he was a business man operating a glass business. The applicant had a minor criminal history which was of no relevance. He had no previous offences of a sexual nature.

His Honour rejected the submission that the applicant had psychologically replaced his wife with his daughter because his relationship with his wife was one that had failed some years in the past. He said that the relationship was always an unequal one in which the applicant exploited his power over the complainant to gratify his sexual feelings. This is clearly correct.

After noting that R v Roache involved one act of incest only coupled with four counts of indecent dealing, which resulted in a sentence by the Court of Appeal of four years with a recommendation after twelve months, His Honour said that the applicant's case was far more serious and indeed far more serious than other cases directed to his attention, including R v J (CA 264 of 1992, 4 December 1992 unreported). That was a bad case dealing with maintaining a sexual relationship with a child under 16 (aged 15 in fact) with a circumstance of aggravation, which His Honour noted was a different charge. It did not exist until its introduction in 1989. In respect of that offence, a sentence of seven years imprisonment was imposed after trial which was not disturbed on appeal. The maximum penalty was then fourteen years imprisonment.

His Honour regarded the present case as among the more serious examples of incest and it is difficult to disagree with that observation. His Honour noted that in Roache, the court looked at a number of comparable decisions which had been determined in the period from 1985 to 1990. (Broadly the period during which the subject offences were committed). He observed that in the 1990's, a sentence of four to five years was a reasonably common sentence for incest and also noted that penalties for sexual offences have increased. After referring to an observation by Pincus JA in R v Eather ((1994) 71 A.Crim.R. 305 - a case involving aggravated sodomy on young children under twelve - 16 years imprisonment imposed) that sentences imposed before the legislative increase in penalties must be viewed with caution, he said that it was true to say that in the past eight years or so, the courts have taken a more serious view of sexual offences generally. His Honour then imposed the above sentences.

No complaint was made in this court that the learned sentencing judge wrongly took into account unlawful conduct other than conduct comprising the eleven accounts charged. Whilst His Honour mentioned in his reasons that indecent dealing occurred on a reasonably frequent basis, and that sexual intercourse occurred on a daily basis, there was no suggestion that His Honour did not comply with the principles laid down by the Court of Appeal in R v D (1995) A Crim R 50 and R v W (CA 62 of 1996, 20 August 1996 unreported). His Honour simply referred to the continuous conduct in order to place in context the circumstances surrounding the offences charged and in order to show the relationship, and the continual fear that complainant had of the applicant, the reason why she did not complain earlier, and the effect of the offences on her. The context also demonstrated that the offences were not isolated or committed on impulse, or induced by the complainant herself. His Honour carefully considered numerous cases referred to him in imposing the above sentences.

Before this court, Mr Shanahan, counsel for the applicant, submitted that the range was four to five years imprisonment with an appropriate recommendation for parole, being the submission made below by both counsel. This submission was based upon the fact that in various cases, including several referred to in R v Roache, the Court of Appeal had imposed sentences for incest in the order of four to five years which, he submitted, had created an expectation in offenders that that was the appropriate range, particularly when both the Crown prosecutor and defence counsel had contended for such a range. This could be of some significance where an offender pleaded guilty with that expectation on advice given, if the advice was correct. It was not suggested that the applicant had any such expectation and authorities later referred to show that any such expectation is not justified in all cases.

However, where incest attracts a maximum sentence of life imprisonment as does rape, Mr Shanahan conceded that in the case of any incest which could also have been charged as rape, there was no sensible reason for distinguishing between the level of sentences in both cases. Insofar as an offence of rape requires proof beyond reasonable doubt of lack of consent, he conceded that on the facts of this case, there was a question as to whether there was any real consent by the complainant to sexual intercourse all of which occurred after she was 16. Her statement that she continued to protest and succumbed only out of fear of the applicant, suggests to the contrary although the question of legal consent was never in issue in the proceedings.

Mr Meredith for the Crown submitted that in many respects, incest of the type committed in this case was much worse than a date rape where, notwithstanding the horrific nature of the crime of rape, the offender goes away and the victim usually has no further contact with him and can at least return to her family and friends for support, whereas in a case such as the present, he submitted that the victim, initially a child dependent upon her parents for support and guidance, had nowhere else to turn to. He submitted that the police probably charged incest because it was easier to prove and did not require proof of absence of consent which was often difficult in some family situations. He submitted that the range for this case was six to eight years imprisonment and that the sentence imposed was appropriate with no special circumstances requiring any further concession.

The question of whether sentences for incest which could have been charged as rape or were as serious as rape was not debated before the learned sentencing judge. It is clear that His Honour did not approach the sentencing process by reference to sentences for rape, but rather by an analysis of sentences for incest. It was not suggested that the learned trial judge erred in referring to increased penalties in recent years or to penalties imposed for offences such as maintaining an unlawful sexual relationship with a child. In any event, it is difficult to see the significance of any such reference, when the maximum sentence for that offence was fourteen years imprisonment, whereas for incest, the maximum is life imprisonment.

A close examination of the various authorities referred to in R v Roache show that in a particularly bad case of which this is an example, sentences in the order of eight years or so have been imposed. Indeed, in the judgment of the court at page 5, the following appears:

"All cases are dependent on their special facts in assessing the appropriateness or otherwise of the sentence imposed and none more so than incest and indecent dealing cases which occur within the family unit. However, some attempt must be made to place each case within the spectrum and at an appropriate place in it, per Mackenzie J in Simpson CA 137 of 1990, unreported 8 August 1990."

Simpson was sentenced to ten years imprisonment, reduced to eight years on appeal. It was regarded as a particularly gross case involving one count of indecent dealing with a girl under the age of 14, six counts of indecent dealing with a boy under the age of 14, and three counts of incest. Both complainants were natural children of Simpson. He had some prior convictions of wilful exposure to his children. He pleaded guilty at a comparatively late stage and although there was some degree of cooperation it was not described as either full or frank.

In Moore (CA 215 of 1989, 31 August 1989 unreported), the Chief Justice made the following observations which were set out in Roache at pp 7-8:-

"We were told by counsel for the applicant that the normal sentencing range for an offence of incest is in the vicinity of four to five years imprisonment. Counsel for Crown disputed that and claimed, as I understood him, that over a more recent period of time the range was between five and seven years.

Speaking for myself, I am not satisfied that there is normal range. Each case at this category must depend on the circumstances. The circumstances of the present case are bad."

Moore was a plea of guilty to four counts of incest. There was sexual association between the applicant and the complainant who was his daughter from age 15 to 33 years during which she bore her father five children. He had threatened violence in the early years of their relationship and was in fact physically violent to her. The seven and a half years imprisonment was not disturbed.

Motbey (C.A. 46 of 1988, 27 June 1988 unreported), was an Attorney-General's appeal on a sentence of seven years and five years for two counts of incest after trial. It was not disturbed. Motbey was also convicted of two counts of indecent dealing with his natural daughters. One act of incest occurred when one daughter was 4 years of age and intercourse took place many times over a number of years. His daughters were fearful of him. It was said that the sentences imposed were "more or less in line" with orders made in other cases.

In Thomas (CA 327 of 1989, 16 March 1990 unreported), a sentence of ten years for incest was reduced to eight years. The child was the applicant's daughter and intercourse occurred when she was age 11. She suffered from regular physical abuse at the hands of her father and the convictions followed after a trial. The sentencing judge said it was one of the worst incest cases he had tried and took into account a complete absence of remorse.

Roache itself was a case where the applicant pleaded guilty on an ex officio indictment to four counts of indecent dealing, two with a child under age 12 with circumstances of aggravation, two with a child under age 16 with circumstances of aggravation, and one count of incest only, when the applicant daughter was aged 11. He was sentenced to two years imprisonment on each of the indecent dealing charges and five years imprisonment on the incest charge, all sentences to be served concurrently. There was a recommendation that the applicant be considered for release on parole after serving eighteen months of his sentence. The sentence was reduced on appeal to four years imprisonment with a recommendation after 12 months.

The Court noted at pp 11-12, that the appellant expressed remorse by complete acceptance of the complaints made by his daughter. He had no previous convictions at all. The offences were committed over about seven years when the complainant was between the ages of 6 and 13. No complaint was made involving three other children of the marriage aged 15, 10 and 6 years. After the complainant raised the indecent interference with the school counsellor, the applicant then voluntarily surrendered himself to the local CIB and took part in a record of interview. He voluntarily removed himself from the family home before being charged and immediately attended upon a psychiatrist for treatment. He and his wife embarked upon joint therapy prior to his imprisonment. The psychiatrist considered that his response at therapy was good and that he was not at risk of reoffending. His efforts at rehabilitation were obviously a significant factor. There was no evidence of any physical violence or threats of violence in that case as there is in the current case.

Furthermore, the family unit (including the complainant) remained intact and was supportive of the applicant, factors regarded as important in the mitigation of sentences for incest: see Special Report of The Criminal Law and Penal Method Reform Committee of South Australia, Rape and Other Sexual Offences, 1976 at p 31; R v J (1982) 45 ALR 331 per Toohey J at 337-8, per Gallop J at 342-3. See also the facts in Carter (C.A. 342 of 1985, 6 March 1986, unreported) where all children involved supported the applicant and were anxious for his return. It was not regarded as a particularly bad case by comparison with others. Five years imprisonment was imposed.

The Court also concluded in Roache that the offence was not near the upper range of serious incest cases or even of the same degree of seriousness as those where five years had been set on appeal to be the appropriate sentence. The activity which constituted the incest endured for a few minutes and the applicant then desisted. There was no evidence before the court as to the impact the period of abuse had upon the complainant's mental wellbeing. The applicant had a good work history. As indicated, the family unit remained intact and he had the respect of his family.

Whilst the many cases referred to in Roache included those where sentencing ranges of four to five years were considered to be appropriate, it is clear from the decision itself and authorities referred to therein that the sentences in that range are not appropriate to those involving the upper range of serious incest cases. Each case must be determined on its facts. This was a particularly bad case of incest which followed on repeated acts of indecent dealing starting from when the child was not yet 11 years of age. Those acts progressed inevitably to the acts of incest which commenced when she was aged just 16 years and on subsequent occasions. Unlike Roache, there is evidence of violence and threats of violence, fear of the applicant by the respondent and its effect upon her involving regular counselling. Also the family unit broke up as a result, unlike the situation in Roache and in R v J, although the applicant has continued to work and provide financial support for that family, as well as his new family.

Having considered all of the circumstances of the case, it cannot be said that a sentence of nine years imprisonment, had the matter gone to trial, even though severe, would have been manifestly excessive. His Honour duly made allowances for mitigating factors including the plea of guilty, reducing the head sentence to one of seven and a half years imprisonment. In my opinion, the sentence should be upheld on that basis. This is sufficient to dispose of the appeal.

Because of the submissions that there was no reason for distinguishing the level of sentences imposed for rape and the sentences imposed for incest which might have been charged as rape, something should be said about that topic. Both offences carry a maximum of life imprisonment and have done so since the Criminal Code of Queensland came into force in 1901. The offence was enacted in Queensland in 1891 by the Criminal Law Amendment Act (55 Vic No.24 s.13) which then provided for a penalty of "penal servitude for life or for any term not less than three years". No distinction was drawn between the case where the victim was a woman or a young girl. No such offence existed at common law and in the United Kingdom it did not exist until its introduction by the Punishment of Incest Act 1908. Even then its introduction was bitterly opposed by Lord Hailsham. Now in Queensland the victim can be male or female.

In a paper delivered by Justice J.A. Miles, Chief Justice of the Supreme Court, Canberra, reported in The Australian Journal of Forensic Sciences Vol 22 No.3, May/August 1990, His Honour noted the history that in England incest was in theory punishable by the Ecclesiastical Courts, but that the exercise of such powers by those courts had fallen into disuse by the middle of the nineteenth century. As His Honour pointed out, the jurisdiction of those courts was not something that was exported to the Australian colonies where offences of this kind were dealt with by the various States in different ways and with different degrees of seriousness. Nevertheless, His Honour expressed surprise at what appeared to be the leniency of sentences for what were really serious cases of what could have been prosecuted as rape by a father of his daughter. He noted the approach of such writers as Colin Howard and Glanville Williams, leading text writers on the criminal law in Australia and the United Kingdom respectively, who each treated incest as a "victimless" crime. Glanville Williams stated that "incest is not an offence against the person", that "its basis is either 'moral' (incest is widely thought to be wrong in itself) or 'eugenic', not a matter of protecting the young". Williams expressed the opinion that sentences for incest with daughters were "much too high". As the Chief Justice points out in his article, that approach is at odds with statutory changes and a change in community attitudes, at least where the offence is committed by a father on a young daughter. After referring to the decision of the Full Court of the Federal Court in R v J, His Honour concluded:-

"The result at least in NSW and the ACT but probably elsewhere in Australia as well is that the crime of incest may now be approached and treated as punishable to the extent that it constitutes sexual abuse of a child who is in truth a victim. The problem of 'girl/child rape' by a father charged not with rape but with incest is now of no practical significance, because the offence of incest with a child below 10 years or between 10 and 16 years carries a heavier sentence than the offence of sexual intercourse without consent. A sentencer may now look at incest committed by an adult with a child on the basis that the law is directed to the protection of the child and not simply against some proscribed form of sexual conduct. Recent developments in the United Kingdom appear to have reached similar results."

His Honour was there talking about offences of a different kind to those provided by the Criminal Code of Queensland and with penalties less severe than those provided in the Queensland Criminal Code.

The submissions by Mr Meredith that incest of the type committed in this case following a long period of indecent dealing, was in many respects much worse than rape, for the reasons he gave, are adequately supported by considerable research on the topic. In an article by Elizabeth Ward, "Rape of girl-children by male family members" published in ANZJ Crim (1982) 15 at p.90, she referred to the fact that many child victims are abused and raped by a father or father figure who has taken advantage of the child-status of powerlessness of whatever children happen to come under his authority. At 96 she states:-

"The child-girl victim of rape by a father experiences all the violation, loss of self-esteem, powerlessness, that adult victims describe. As well, for her to speak and seek support is to threaten the family, both the individual family and the social concept of the family. For her to speak is also, in most cases, to risk not being heard, thus compounding and confirming her isolation, and her sense of being a freak. It is the fact that the victim is crying 'incest' that especially militates against her being heard. A typical expression of the 'normal' social attitude towards incest is expressed by the sociologist, Weinberg, in the opening paragraph of his book:

'Incest, the universal crime, violates a taboo that is as forceful among primitives as among sophisticated moderns. It is a behaviour that disrupts or destroys the social intimacy and sexual distance upon which family unity depends. It is the recourse of very disturbed and very perverse persons (Weinberg, 1955:3).'

"Girl-children raped by male family members suffer not only from the problem of finding someone to 'hear' them. They usually find the story difficult to 'tell' in the first place. Rape by a father creates in the victims a deep split. They feel powerlessness and hate their own passivity, but have absolutely no means of doing or saying anything to the very person who normally teaches the difference between what is right and what is wrong. If a person you look to to tell you what is right does something that feels wrong - especially in relation to your own body - then it must be you who is out of phase. Hence the split. It's waiting: waiting for that micro-second of paralytic confusion to pass, for the world to fall back into place where what is right and what is wrong is once again comfortably clear."

Other writers express similar sentiments. In Rape and the Legal Process by Temkin, Sweet & Maxwell London 1987, the writer discusses the Criminal Law Revision Committee's proposals for 1984 and the situation in some Australian states but not Queensland. After dealing with the eugenic considerations which were regarded as a justification for confining incest to sexual intercourse with what was thought to be the high risk of congenital defects in any children born of such intercourse, she referred to the fact that by 1908 the protection of children from sexual exploitation by parents was regarded as more significant. The writer gives a quote from Butler (1978) as follows:

"Sometimes indecent assault of a small charge is a preliminary to sexual intercourse when the child reaches puberty. Thus, Sandra Butler writes:

'In many situations in which the father is the aggressor, the eldest daughter is the first to be victimized, and earliest sexual contact can begin when the child is as young as 5 or 6, with genital fondling, mutual masturbation and oral-genital contact . . . Explicit genital intercourse frequently does not begin until the girl reaches puberty . . . When sexual activity continues for years, the child feels a deepening responsibility to keep the relationship hidden from everyone, and her father is free to escalate the level of sexuality between them.'"

"The Committee has not, however, shifted its position so far as the crime of incest is concerned. It shared the view of the Policy Advisory Committee that 'the primary aim of the law against incest is the protection of the young and vulnerable against sexual exploitation within the family' and rejected the idea that eugenics was the law's principal justification. It commented further:

'It is not merely a question of unlawful sexual intercourse with a person who may not be in a position to give true consent. There is also a special dimension, the violation of the role of the family, which adds to the harmful consequences of incest. A child who suffers abuse at the hand of a stranger can expect comfort and protection from his or her family; incest victims often have no-one to whom to turn - those who should support have been the cause of suffering.'"

Those passages aptly describe what has occurred in the present case. There are numerous other articles and literature on the subject to which reference need not be made. Suffice to say that there is a divergence of statutory provisions which provide for offences in the nature of incest throughout Australia and elsewhere and a divergence of penalty. In R v J (Full Federal Court, Toohey, Gallop and Davies JJ), Toohey J at 3356 said:

" The severity which the criminal law has traditionally visited upon the offence of incest derives from a number of considerations. It has been regarded as morally wrong and an offence against religion. It involves the genetic risk that certain diseases are more likely to occur. It is destructive of the family relationship. It involves a breach of the trust reposed in a parent to care for and protect his children. The cogency of these considerations has varied from time to time and from community to community. In a contribution to Family Violence - An International and Interdisciplinary Study (Editors J M Eekelaar and S N Katz, Butterworths 1978), Mr A H Manchester reviews briefly the attitude of the law to incest and concludes: 'The actual practice of the courts indicates that in this context the aim of the criminal law of incest is, above all, to protect the young child" (at p 502): see also Bailey and McCabe: Reforming the Law of Incest (1979) Crim LR 749.

The move away from the notion that law is the custodian of morals; the view that sexual conduct between consenting adults does not require the intervention of the criminal law; and an emphasis upon the importance of rehabilitating the family have all led to a climate of opinion that prison sentences may not be appropriate in some cases of incest. But the protection of young children from corruption and exploitation, especially by someone in a position of trust or authority, must remain an important and generally prevailing consideration.

Although in one sense the term 'incest' produces an immediate reaction of disapproval, it sometimes serves to conceal the implications for the girl concerned. In an article Rape of Girl-Children by Male Family Members 215 ANZJ Crim (1982) 90, Elizabeth Ward comments:

'What other writers refer to as "father-daughter incest" I shall call "girl-child rape". My reason for doing this is that the term "incest" focuses attention upon who is involved in "sexual activity" rather than what is happening to the girl-child. "Incest" is the label applied to sexual unions which violate the prohibition on sexual contacts among related persons. As such, it is used to refer to mutually consensual unions such as those between adult siblings, as well as to the non-consensual unions between a girl-child and an adult male. This reference to "a case of incest" serves to deny in linguistic and affective terms the fact that a form of abuse has taken place.'

In a particular case the age and attitude of the girl may warrant a conclusion that what occurred did so consensually. In another case the age or the attitude of the girl or both may make it clear that what occurred was in truth rape or indecent assault."

In that case the respondent was convicted on his own admission of two offences relating to his step-daughter committed between 1 January and 24 April 1982. The first was an offence of unlawful carnal knowledge of a girl then above the age of ten and under the age of 16, an offence which by reason of the relationship of those concerned carried a penalty of imprisonment for fourteen years. The other was one of committing an act of indecency upon a girl under the age of 16, an offence carrying a penalty of six years imprisonment. The respondent was sentenced to three years imprisonment for the offence of incest and one year's imprisonment for the offence of indecent assault, both to be served concurrently, each to be suspended forthwith upon the respondent entering into a recognizance etc. The Crown's appeal on the basis that an immediate effective custodial sentence was the proper form of punishment for anyone convicted of incest, was dismissed (Toohey, Gallop JJ, Davies J dissenting). Nevertheless, Davies J regarded the sentence of three years imprisonment with a non-parole period of twelve months appropriate in the particular circumstances. His Honour said that this was a sentence imposed by the Court of Criminal Appeal (NSW) in R v H (1980) 3 A Crim R 53 and by the Full Court of Queensland in R v Fairbairn (1979) 3 Crim LJ 226. The majority placed considerable emphasis on the facts and in particular the damage that an immediate custodial sentence would have caused to the respondent's family, although the history of his sexual contact with his step-daughter went back to 1976 when she was only nine years of age. Of considerable importance was the dependence of the family on the respondent, his wife suffered from epileptic fits and may have had difficulty in holding the family together on her own, there were good attempts at rehabilitation and good prospects that the family might be restored to normality. Damage to the family was regarded as paramount if a custodial sentence was imposed in that case.

It is true, as Toohey J pointed out at 336, that in some cases of incest the age and attitude of the girl may warrant a conclusion that what occurred did so consensually. See for example R v Ball [1911] A.C. 47 where a twenty-three year old lady willingly lived with her brother as man and wife and had done so for some time. They shared the one bedroom and a child had been born to them. Offences of those kinds are of course radically different to the situation in the present case and particularly in cases also where very young children have been the victims of incest, some examples occurring of children as young as two or three years of age. As Fitzgerald P pointed out in R v F.A.R. [1996] 2 Qd R 49 at 51, all right-thinking persons are appalled by the sexual abuse and physical mistreatment of children who are in no position to "consent" to sexual intercourse, particularly by a father, or for that matter by an older brother or other relative in a position of authority over the child. There is little doubt that such offences are the equivalent of rape. In other cases, regardless of the age of the victim, the facts may also indicate that the offence is the equivalent of rape. In between, there are a range of other considerations which are bound to arise.

In the instant case, sexual intercourse commenced after the age of 16 but was preceded by some five years of almost daily sexual contact of various kinds which led to it. There is much to be said for the proposition that when the sexual intercourse occurred, in respect of which the complainant said she did not consent but merely acceded to the applicant's demands because of fear of verbal or physical abuse, or painful intercourse, it may be regarded as serious as rape. The applicant did not dispute any of the allegations placed before the Court that she at no time willingly consented but only did so for the above reasons.

However, the applicant was not charged with rape. Had that been the charge, the Crown had the responsibility of proving beyond reasonable doubt not only the sexual intercourse, but lack of consent by the complainant. To this extent an accused has some protection. If rape alone is charged and there is a reasonable doubt about consent, the accused is simply acquitted. Where an accused is charged with incest, and he pleads guilty to that offence and no other, it is not known what course he would have taken if the charge had been rape.

It may be noted that upon a charge of rape, s.578 of the Criminal Code provides that the accused person may be convicted of any offence, if established by the evidence, as set out in ss.208, 209, 210(1), 215, 216, 217(1), 218 or 337. These do not include a conviction for incest. Neither do ss.575 or 584 of the Code apply. Yet the alternative verdicts open by virtue of those various sections set out could well comprise conduct committed by the offender on a person who might happen to be the offender's offspring or other lineal descendent or other person within the category set out in s.222 (incest). See for example s.208 where punishment of life imprisonment is provided for in the case of sodomy committed on a child who to the knowledge of the offender is his or her lineal descendent, which is also provided for in attempted sodomy pursuant to s.209. So also with the other alternative offences referred to under the sections outlined above. Indecent treatment may be committed on a person who is a lineal descendent or person otherwise upon whom sexual intercourse is forbidden between an offender and that person.

It may be that s.567(2) allows the joinder of a charge of incest as an alternative to a charge of rape in the one indictment, although that subsection appears to refer to cumulative counts rather than alternative counts. On the other hand, it was held in R v Collins; ex parte Attorney-General [1996] 1 Qd.R. 631 that although indictment counts are based on contradictory explanations as to the circumstances surrounding the offences, joinder will be justified where some common link exists between them. It must be conceded that the position is not clear.

Society's attitudes are changing and it may be timely for this matter to be addressed by the legislature including the question of whether it may be appropriate for a conviction of incest to be open on an indictment charging rape or whether a charge of incest may be laid as an alternative to that of rape. In this way, the accused person could suffer no prejudice.

In sentencing for an offence of which an accused has been convicted, it is clear that the court cannot sentence on the basis of a different or more serious offence which, on the evidence, might have been charged but was not. Nor can the Court take into account a fact or circumstance of aggravation which would have warranted a conviction for a more serious offence, and which was not charged in the indictment: R v. De Simoni (1981) 147 CLR 383 per Gibbs J at 389, applied by the whole Court in Savvas v. The Queen [1995] HCA 29; (1995) 183 CLR 1 at 5. See also R v. Boney, ex parte Attorney-General [1986] 1 Qd.R. 190, R v. D [1995] QCA 329; (1995) 80 A. Crim R 50 (Court of Appeal), The Queen v. W (CA 62 of 1996, 20 August 1996, unreported).

The references in cases to a "more serious offence" or to the situation where a fact or circumstance, if established on the evidence, is an element of a discrete offence attracting a greater maximum penalty, are not entirely apposite where incest is charged and rape might have been because the maximum penalties are the same and circumstances surrounding the commission of either offence may objectively be viewed as equally serious in some particular cases. However, it is still correct to say that no person can be sentenced in respect of an offence for which he has not been charged and convicted.

What seems to be permissible is that all of the conduct of the accused and the factors which make the circumstances of the particular offence more serious, may properly be taken into account. Where incest is committed on a very young child, or as a result of overbearance or subterfuge, or where threats of violence and actual violence exist in order to achieve the desired result (all of which would incidentally indicate lack of consent in the sense used in a rape case), such factors are surely part of the attendant circumstances surrounding the commission of the particular act of incest and demonstrated how it was achieved by the offender. If the facts demonstrate real consent, as in R v. Ball, or as Toohey J pointed out in R v. J at 335 might exist in a particular case having regard to the age and attitude of the victim, the offence would naturally be far less serious and would attract a much lesser penalty. The age and position in the family of the offender may also be relevant in some cases, as well as the circumstances of the particular family unit, as in R v. J and Roache.

Whilst incest and rape are difference offences, it is clear that they can, in certain circumstances, be equally serious. Where the facts show that the incest which was committed in a particular case was as serious as rape, there is no logical or sensible reason why, in the absence of circumstances justifying mitigation, a sentence of similar severity should not be appropriate, given that the maximum punishment for each offence is the same. Had such a view been open in the instant case, then a head sentence in the order of 9 to 10 years would be in no way unusual. Accordingly, it should be made clear for the future, that in a case where an offence of incest is committed in circumstances which show that it was equally as serious as rape, a comparable sentence may be imposed. This should remove any false expectation that sentences for incest are always at a much lower range than those imposed for rape.

However, as indicated earlier in these reasons, the learned Judge imposed a sentence of 7½ years imprisonment based not on comparable sentences for rape but rather on the basis that His Honour regarded, rightly in my opinion, these particular offences of incest to be of the more serious kind, thus justifying the sentence he imposed.

The application for leave to appeal against sentences should be refused.

I agree with Lee J. that the application should be refused. For the reasons given by Lee J. I am not persuaded that those sentences were manifestly excessive.

Punishment of Incest Act 1908

(1979) 3 Crim LJ 226

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