R v P [1998] QCA 402

THE ORDER REQUIRING THAT SENTENCES ON COUNTS 3, 4, 5 AND 6 BE SERVED CUMULATIVELY WITH SENTENCES IMPOSED ON COUNTS 1 AND 2 IS DELETED.

CATCHWORDS: CRIMINAL LAW - sentencing - appeal against conviction and application for leave to appeal against sentence - sexual offences against a child - procuring prostitution by a person not an adult - knowingly participating in the provision of prostitution - rape - unlawful anal intercourse - whether 18 years imprisonment manifestly excessive - stepfather - used complainant for substantial profit - physical and psychological dominance of sexually inexperienced 15-16 year old girl over 12 month period - extensive criminal history but none for sexual offences

R v C & Anor; exparte A-G (Qld) (C.A. Nos 269 and 270 of 1998, 23 October 1998)

R.H. McL. [1998] VSCA 61 (9 October 1998_)_

R. v. B and P (C.A. Nos 345 and 346 of 1997, 20 March 1998)

R. v. D (C.C.A. No. 272 of 1991, 13 December 1991)

R. v. Eather (1994) 71 A.Crim.R. 305

R. v. E (C.C.A. No. 98 of 1989, 4 August 1989)

R. v. K (C.C.A. No. 13 of 1991, 28 March 1991)

R. v. Losch (C.C.A. No. 248 of 1980, 3 March 1981)

R. v. Luke (C.C.A. No. 342 of 1986, 4 March 1987)

R. v. I. A. Shaw [1995] QCA 45; [1996] 1 QdR. 641

R. v. S (C.A. No. 316 of 1993, 7 October 1993)

R. v. S (C.A. No. 373 of 1997, 20 March 1998)

Counsel: Mr A. Rafter for the applicant/appellant.

Mr D. Meredith for the respondent.

Solicitors: Dearden Lawyers for the applicant/appellant.

Director of Public Prosecutions (Queensland) for the respondent.

Before McMurdo P.

Pincus J.A.

Williams J.

1 The appellant was convicted after a trial in the District Court at Ipswich on 11 August 1998 of three counts of rape (counts 3, 4 and 5) and one count of unlawful anal intercourse (count 6). At the commencement of the trial in the presence of the jury, he pleaded guilty to one count of knowingly participating in the provision of prostitution by a person not an adult (count 2). On the morning of the second day of the trial, he changed his plea to guilty to one count of procuring prostitution by a person not an adult (count 1).

2 The appellant appeals against conviction on the ground that the verdict of the jury on counts 3, 4, 5 and 6 is unreasonable or unsafe and unsatisfactory. He also applies for leave to appeal against his sentence on the ground that it is manifestly excessive. The facts are as follows.

3 The complainant gave evidence that she resided with her mother and the appellant, who had been her stepfather since she was five or six years old. Counts 1 and 2 occurred in this way. When she was 14 or 15 in 1995, she believed her mother worked as "massager". She jokingly told the appellant she wanted to do a massage with her mother. When a customer rang, the appellant told her mother to describe the complainant and say she was 18 years old. The appellant directed her mother as to what clothing the complainant should wear and gave her a bag containing condoms. The appellant then drove her to a Bundamba address where she twice had sexual intercourse with a customer. This was the complainant's first act of sexual intercourse and was painful. The complainant was paid $200 which she handed to the appellant who returned $50 to her.

4 The complainant then regularly engaged in prostitution which was organised for her by the appellant and her mother. The appellant would drive her to these "out-calls" and other customers were serviced by her at her parents' homes.

5 The appellant was regularly violent towards the complainant and her younger brothers. On one occasion, when the complainant was with a customer in her mother's bedroom, one of her brothers came in and the customer left shortly afterwards. The appellant then bashed her brother, picking him up by the hair, swinging him around, pushing him against the wall and punching him. The complainant was sitting on the couch when the appellant hit her in the face causing her to fall to the floor. He would hit her with a closed fist during family arguments about every second day. She was frightened of him and the appellant would say, "What are you cringing for, it makes me more angrier." He hit her brothers almost every day, sometimes picking up and throwing them to the ground.

6 Count 3 occurred in this way. Usually she would go to the football with her brothers, but on this occasion the appellant told her to stay at home. She asked if she could visit her friend up the road, but the appellant refused. He told her to go into her mother's bedroom where he had sexual intercourse with her. He then said she could go to her friend's house. She had sex with him because she was afraid of him.

7 The circumstances of count 4 are as follows. After the appellant had driven her to an "out-call" at Toowoomba he stopped the car in the middle of nowhere and told her to get into the back seat and get a condom for him. She was scared. They had sexual intercourse in the back seat of the car.

8 Count 5 occurred in a similar manner on the way back from an "out-call" at Gatton. She again had sex with the appellant because she was scared of him.

9 Count 6 occurred in a shed at the rear of the property where the family resided. The appellant had collected the complainant from her friend's house and told her to go into the back shed. The complainant said, "I couldn't do nothing, nothing because I was on my period at that time and he said that it doesn't matter. He told me to pull down my pants and he had done it up my backside." He was not wearing a condom. She did not want him to do this to her, but let him because she was afraid of him: "I couldn't say nothing to him if I did, I'd get into trouble." This incident caused her pain. In cross-examination, the complainant said, "He told me to bend over. I had to pull down my pants and bend over and he had opened the back door, so more or less I was bending - I had my hands on the seat and I had to bend over."[1] It was suggested to her in cross-examination that at the time when she alleged count 6 occurred, the Chev was stripped in the back shed but she denied this, confirming the seat was still in the Chev at that time.

10 The complainant eventually left the family home and a complaint was made to police. On 28 November 1997 the police arranged for the complainant to make a telephone call to the appellant which was recorded. The complainant said to the appellant that she had told her boyfriend about what had happened when she was living at home. The appellant responded, "You didn't have to tell him that. He wouldn't have fuckin' known anything. Now he knows he's got a big mouth, he hates me. He could get me into a lot of fuckin' trouble." The appellant also said, "You didn't tell him about me and you (whispering)." Later he said, "Yeah, don't worry about it right. You don't have to fuckin', you can ring anytime you fuckin' like. Just don't go saying anything about me and you for fucks sake."

11 The complainant's mother, T, gave evidence that the complainant asked her if she could do massage work. The appellant gave her a condom and she went into the bedroom of the family residence with a customer. The appellant was violent towards her and the children. The appellant used to hit the complainant, punch her and pull her around by the hair a few times a week before the complainant worked as a prostitute. She and the complainant left the family home on 16 May 1997 but she later returned because the appellant had her two sons with him.

12 Detective Senior Constable Loveday spoke to the appellant at the Warwick Watchhouse on 25 January 1998. He said he had two warrants for the offences of participating in prostitution and soliciting a minor to participate in prostitution in relation to the complainant. The appellant said, "That is all bullshit." Loveday then said that he intended to place the appellant before the Magistrates Court. The appellant replied, "I didn't do anything to her." This conversation was challenged in cross-examination.

13 The appellant gave evidence and admitted driving the complainant to a prostitution job in Toowoomba but denied any incident of sexual intercourse (count 4). He denied ever driving the complainant to a job at Gatton and denied any intercourse in respect of count 5. The appellant had no recollection of any incident in the bedroom of the house (count 3) and denied ever inserting his penis into the complainant's vagina. The appellant denied the offence of sodomy (count 6) which allegedly occurred in the back shed. He started to work on the Chev with his friend, H, in May or June 1997. The Chev was first parked in the carport at the back steps of the house, not in the shed. In early May 1997, he took the seats out of the Chev and stored them in another enclosed shed. The Chev was then parked in the back shed for stripping and repainting. There were no seats in the Chev at the time the complainant alleged this offence occurred.

14 On occasions he engaged in some sexual acts with the complainant but these were initiated by her. These were the matters he was referring to when the complainant telephoned him. He denied the conversation with Detective Senior Constable Loveday.

15 H, who had known the appellant for 15 years, gave evidence that he had assisted the appellant on working on his Chev in the back shed or just out of the shed in the yard. The seats were only put back into the Chev when the car was painted. He was unsure as to the dates when this occurred but he thought it was in 1997.

16 The appellant submits that the verdicts of the jury in respect of counts 3, 4, 5 and 6 are unreasonable having regard to the evidence surrounding count 6. The appellant submits this is so because the evidence from the complainant that she was bending over the Chev in the shed with her hands on the Chev's seat was implausible, because of the evidence from the appellant and Mr H.

17 The determination of this question of fact was solely one for the jury. The complainant's evidence was that this offence occurred as she described. The jury may have chosen to disbelieve the appellant on this point, as they obviously did on other points, consistent with their verdicts. Mr H was uncertain as to the dates when the Chev was in the back shed and in any case was a person who had known the appellant for 15 years. The jury may have found H's evidence unreliable, untruthful or irrelevant. Despite the evidence of the appellant and H, the jury were entitled to prefer the complainant's evidence on this point. The conflict of evidence between the complainant and appellant, even combined with Mr H's evidence, does not make the jury's verdict unreasonable in respect of count 6 or consequentially in respect of counts 3, 4 and 5.

18 The appellant's next complaint is that the complainant's evidence of lack of consent on the rape charges (counts 3, 4 and 5) was unsatisfactory. In each case, the complainant said she was not consenting and that she was in fear of the appellant. Her evidence does not suggest she communicated her lack of consent to the appellant, but that is not necessary: see R. v. I.A. Shaw[2] where Davies and McPherson JJ.A. said:

"A complainant who at or before the time of sexual penetration fails by word or action to manifest her dissent is not in law thereby taken to have consented to it."

This is particularly so in a case, as here, where the complainant was the 15 year old stepdaughter of the appellant and had been assaulted by him in the past and had seen her brothers assaulted by him. The learned trial judge dealt with the consent issue very carefully and properly in his summing up:

"Consent refers to a subjective state of mind; that is, her state of mind at the time of penetration. It is not necessary for the Crown to establish at that time she indicated her lack of consent by any form of act or word. Indeed, there is no evidence that she said anything. There is no evidence that the accused made any threats at the time or that he used violence towards her on any of these occasions, apart from the penetration.

[The complainant] has told you she did not consent. The Crown case, based on her evidence, is that because of the antecedent history of violence and the ongoing violence, which she says the accused committed towards her, she was in fear of him and that she did not say or do anything to indicate her lack of consent because she was afraid of what he might do. As I say, consent is a subjective state of mind. It's her state of mind at the time of penetration. The accused of course says it didn't happen. He says that he never had sexual intercourse with her. The Crown have to establish beyond a reasonable doubt that he penetrated her in the sense which I have described, and at that time it was without her consent, before you could find him guilty of rape."

19 There was ample evidence before the jury to enable them to be satisfied that the complainant was not consenting and the learned trial judge's directions to the jury on this point were comprehensive and correct. The question of honest and reasonable mistake of fact[3] was not raised in this case where the appellant denied the acts alleged by the complainant and no other evidence raised that defence. There is nothing in this point. I would dismiss the appeal against conviction.

20 The applicant next applied for leave to appeal against sentence on the grounds that the sentence imposed was manifestly excessive.

21 In respect of the offence of procuring prostitution (by a person not an adult) (count 1) and the offence of knowingly participating in provision of prostitution (by a person not an adult) (count 2), the applicant was sentenced to eight years imprisonment to be served concurrently with each other but cumulative on the sentences imposed on counts 3, 4, 5 and 6. In respect of counts 3, 4 and 5, the counts of rape, the applicant was sentenced to ten years imprisonment and in respect of count 6, unlawful anal intercourse, the applicant was sentenced to six years imprisonment. These sentences were to be served concurrently with each other but cumulative on counts 1 and 2. Periods of pre-sentence custody were declared as time already served. In effect, the applicant was sentenced to 18 years imprisonment.

22 The learned trial judge considered whether or not cumulative sentences should be imposed and decided to impose cumulative sentences. There is no suggestion that in so doing he erred: the question for this Court is whether the total period of imprisonment imposed is in all the circumstances manifestly excessive.

23 The offences occurred before the amendments to the Penalties and Sentences Act 1992 so that, as his Honour noted, it was not open to him to declare the applicant a serious violent offender.[4]

24 His Honour determined a number of disputed facts which would result in a heavier sentence, against the applicant:

"1. That it was you who first enticed and procured [the complainant] to engage in prostitution, and on that first occasion you directed her as to what she should wear, and you supplied her with condoms.

2. That at that time she was sexually naive and inexperienced.

3. That throughout the period of approximately one year or more that she worked as a prostitute, you:

(a) dictated prices to be charged, directed her in relation to many of the jobs, and controlled the distribution of moneys received;

(b) retained at least 50% and up to 75% of the proceeds of her work for yourself;

(c) controlled and directed the placing of ads in the local newspaper;

(d) continued to act from time to time towards her in an aggressive and violent manner and, in particular, on a number of occasions you actually punched her with a closed fist.

4. That sexual activity between you was initiated by her." [This seems to be an error in the transcript and should read 'was initiated by you' consistent with his Honour's other findings and remarks during the sentencing process.]

25 His Honour also took into account specifically these factors:

"(a) Your dominance, both psychologically and physically over [the complainant] throughout that period;

(b) Your complete lack of respect for her as your step daughter; and

(c) Your complete lack of insight and remorse."

His Honour rightly regarded these matters as relevant to sentence.

26 His Honour correctly viewed the offences as "a very serious and disturbing kind involving a gross breach of trust and systematic exploitation of a naive and inexperienced girl". He found that the applicant's "actions were designed to degrade and to dehumanise her for your own financial gain" which his Honour found was somewhere between $50,000 to $100,000. His Honour rightly found the facts of this case were a serious example of the prostitution offences for which a maximum penalty of 14 years is provided.

27 In respect of counts 3, 4, 5 and 6, his Honour noted that these offences occurred when the complainant was 15 and 16 years old and the applicant had been her stepfather for 11 years and was a person whom she regarded as her father. The telephone conversation in the presence of police officers recorded the appellant discouraging the complainant from revealing his conduct. As a result of the offences, the complainant is estranged from her half-brothers and mother who, his Honour observed, presented as a crushed and broken human being clearly dominated and controlled by the applicant throughout this period. She pleaded guilty in the District Court at Ipswich on 29 October 1998 to one count of knowingly participating in the provision of prostitution and was sentenced to imprisonment for 12 months, wholly suspended for 18 months. In the circumstances of this case as set out earlier, there can be no basis for parity of sentence between T and this applicant.

28 The applicant was 49 years old and had an extensive criminal history of a largely petty nature, for violence and dishonesty and traffic offences extending to some eight pages. There are, however, no previous convictions for sexual offences.

29 His Honour particularly noted the lack of remorse in the conduct of the applicant's case. Whilst he took note of the pleas of guilty in respect of count 1 and 2 at a late stage he rightly did not regard the pleas in the circumstances of this case as showing remorse. Indeed, the guilty pleas were clearly used as a tactical measure to try and minimise the involvement of the applicant in these offences.

30 His Honour noted that the effect on the complainant cannot be measured. She broke down and was distressed whilst giving evidence. Her victim impact statement is simplistic. The complainant is now 17 years old and living with a boyfriend with whom she is having a child. No specialist psychiatric or psychological material was placed before the Court but his Honour correctly noted:

"As a matter of common sense and reality that [the complainant] will, in the future, suffer significantly as a result of your systematic sexual exploitation of her."

31 His Honour rightly noted that there are no comparable sentences but carefully reviewed a number of sentences in order to ascertain the appropriate sentence in this case. His Honour concluded that because the prostitution offences and the rape and sodomy offences fell into two groups, despite their evidentiary connection, a cumulative sentence was appropriate. He therefore had regard to the totality principle.[5] His Honour concluded that the appropriate head sentence for the prostitution offences was 10 years and for the rape offences 12 years, but having regard to the totality principle, he reduced those sentences to 8 and 10 years respectively and imposed a lesser sentence of six years for the sodomy offence.

32 In respect of the prostitution offences, it is comforting to know there are no comparable sentences. The offences clearly are extremely serious examples, involving as they did an under-age and innocent girl of 15, who was drafted into prostitution by her step-father of eleven years. The appropriate sentence in respect of the prostitution offences, for which the maximum sentence is 14 years imprisonment, is in the range of 8-10 years. Because of the orders ultimately to be made in this case, there is no reason to interfere with the eight year sentence imposed, which is in any case within the appropriate range.

33 In determining whether the 18 year term of imprisonment is excessive, it is helpful to review sentences imposed in sexual offences where similar terms of imprisonment were imposed, although no sentence is truly comparable to the sad and unique facts of this case. In R. v. K,[6] K pleaded guilty to one count of maintaining a sexual relationship, two counts of indecent dealing with a girl under 14 years, two counts of sodomy, two counts of unlawful carnal knowledge and one count of indecent treatment of a girl under 12. The offences spanned a period of four years. The complainant was aged seven years when the offences commenced. K shared a home with his sister and the complainant, his niece. Regular intercourse took place together with oral sex and exposure to pornographic material. The complainant suffered vaginal and anal bleeding. The complainant, having been corrupted by K, made sexual advances to others in her Grade 6 class. During this period, the child's mother was actively working as a prostitute. K was aged from 23 to 28 at the time of commission of the offences and had no previous convictions. The sentence initially imposed was 15 years imprisonment. Thomas J. (as he then was) noted in his reasons for judgment that:

"... this applicant was born and bred into this type of activity and that he is a true product of his environment."

The Court of Criminal Appeal refused K's application for leave to appeal against sentence and declined to impose any parole recommendation. It seems the facts of K are even worse than those in the case before this Court in that the child was younger and the offences occurred over a longer period. On the other hand, K pleaded guilty and was himself a victim of like offences.

34 In R. v. S,[7] S pleaded guilty to one count of maintaining a sexual relationship, one count of sodomy and one count of rape. The complainant was aged between four and eight years and was S's natural daughter. The offences involved the complainant masturbating S, mutual oral sex, penetration of the anus and vagina by his finger, anal intercourse and rape. S would pay the complainant to suck his penis and swallow the semen. S was 37 years old with no criminal history and, self-evidently some might say, had serious psychological and behavioural problems. The original sentence of 20 years imprisonment was reduced on appeal to 15 years imprisonment. Again, the facts of this case seem even worse than the facts of the case before this Court. S, however, like K and unlike this applicant, pleaded guilty, a very significant mitigating factor in cases of this sort.

35 In R. v. D, D pleaded guilty to two counts of indecent dealing involving one complainant, and two counts of indecent dealing involving another complainant, together with six counts of robbery, one count of attempted rape, two counts of rape, two counts of sodomy and one count of indecent dealing involving a third complainant and one count of indecent dealing involving a fourth complainant. The offences were committed on children, one of whom was his own child aged two years and another, the mentally retarded daughter aged 10-11 years of his de facto wife. Full admissions were made by D, who expressed remorse. He was the victim of sodomy when he was 16 years old. The offences occurred over a seven month period. He was 30 years of age and had a criminal history including a conviction for buggery for which he was committed to an institution on 2 December 1977. He had no convictions for 12 years prior to the commission of these offences. The court noted that D's conduct was not as serious as that considered by the courts in the cases of R. v. Luke,[8] R. v. E[9] and K. D was sentenced to a total of 16 years imprisonment. On appeal, this was reduced to thirteen and a half years imprisonment.

36 In R. v. E, E went to trial on most offences and was ultimately convicted of three counts of rape, 11 counts of indecent dealing, one count of attempted incest and two counts of attempted unlawful carnal knowledge. His offences involved six young girls aged between 8 and 11 years and occurred over a 12-18 month period. He was in a position of trust, being friendly with the girls' families and one girl was his eight year old daughter. He seduced the girls showing them pornographic material and engaged in group sexual activities. His daughter was still receiving psychiatric treatment and counselling at the time of sentence. He was sentenced to a number of cumulative sentences totalling in all 20 years imprisonment. His appeal against sentence was dismissed. E's offences involved a number of girls, all younger than the complainant in this case. Like this applicant, he did not have the mitigating factor of an early plea of guilty.

37 In R. v. Luke, Luke called a six year old complainant girl into his house as she walked by and then raped her whilst he was under the influence of alcohol. He was 25 years of age and had criminal history but not for sexual offences. He pleaded guilty and was originally sentenced to life imprisonment. On appeal, the sentence was reduced to 18 years imprisonment and the court noted the sentence reflected the extremely serious nature of the offence.

38 In R. v. Losch,[10] Losch intercepted a 12 year old girl going home from school and raped and sodomised her. Losch went to trial on the issue of mistaken identity and the complainant was not required to give evidence at committal or trial as Losch's counsel accepted her evidence in statement form. He was 24 years of age with a criminal history but none for similar offences. He was sentenced to 15 years imprisonment and an appeal against conviction was dismissed, the court noting that the sentences were heavy but not manifestly excessive.

39 In R. v. Eather,[11] Eather pleaded guilty to a number of sexual offences against three infant boys involving sodomy and other acts which occurred whilst he was their baby sitter. Two of the infants developed anal warts and other consequences of the offences. Eather was 21 years old and had no prior convictions. He was sentenced to 12 years imprisonment with a recommendation for release on parole after four years. The Attorney-General appealed and the sentence was increased to 16 years imprisonment. The court described the offence as a serious example of multiple crimes of sodomy of children, with aggravation. The children were about two years of age. The facts of Eather again appear to be worse than the case before this Court, because of the tender age of the complainants and the serious consequences of the offences, although Eather had no prior convictions and pleaded guilty.

40 In R v C & Anor; exparte A-G (Qld),[12] the Attorney-General appealed against sentences imposed on the male respondent of 12 years imprisonment with consideration for release on parole after four and a half years and against the sentence imposed on the female respondent of seven years imprisonment with consideration for release on parole after three years. They were aged 68 and 58 respectively. The male respondent pleaded guilty to seven counts of rape, three counts of unlawful carnal knowledge, one of indecent dealing with a girl under 14, one of indecent treatment of a child under 16 and one count of maintaining an unlawful sexual relationship with a child. The female respondent pleaded guilty to four counts of rape and one count of indecent dealing with a girl under 16. The male respondent had some petty criminal history between 1965 and 1970. The female respondent assisted the male respondent in sexually abusing the female respondent's daughters, the male respondent's step-daughters. The four rapes to which she was a party occurred in the marital bed. She would masturbate herself to climax whilst the male respondent raped her daughter. Sometimes she would rub her daughter's chest and genitals and the daughter would fondle her mother. Sometimes the male respondent joined in the masturbation of the female respondent. The daughter on another occasion masturbated herself in front of the respondents and touched her mother's breasts. On other occasions the daughter watched the respondents copulate.

41 After two years the female respondent ceased to be involved in the offences although she was aware offences were continuing by the male respondent. These involved frequent acts of intercourse with her daughter.

42 A second daughter was indecently dealt with over the same period, involving touching of her genitalia and progressing to oral sex, including swallowing the semen. Sexual intercourse also took place on a number of occasions. Both the respondents had serious physical health problems. The Court of Appeal noted that although a heavier sentence could have been imposed, because of the pleas of guilty, the serious health problems of both respondents and because the sentence imposed was within the range of sentences suggested by the Crown Prosecutor to the sentencing judge, a more severe sentence should not be imposed.

43 Reference should also be made to R. v. S.[13] S was convicted after a trial on two counts of attempted rape, one count of procuring a child to engage in carnal knowledge and one count of rape. He was sentenced to a total term of 12 years imprisonment. He was 67 years old.

44 The complainant was aged 10 years and 11 years at the time of the offences. S owned a motor mower repair shop and the complainant did odd jobs for him. He committed two counts of attempted rape against the complainant before committing the procuring offence and the final count of rape. The complainant was importuned by her parents, the co-accused B and P, into having sex with S for $20, which was given to the complainant's parents. Whilst de Jersey C.J. declined to interfere with the 12 year sentence imposed, Pincus J.A. and Muir J. reduced the sentence to 9 years, after reviewing comparable sentences and taking into account his age.

45 B and P were convicted on one charge of procuring and one charge of rape and were also sentenced to 12 years imprisonment.[14] In order to maintain some parity with the sentence imposed on S, the principal offender, a recommendation for consideration of eligibility for parole was given after serving four and a half years of the sentence. Whilst S's age and principles of parity of sentencing were distinguishing factors, the sentences imposed upon S, B and P suggest that an 18 year sentence on the facts of this case is harsh.

46 Although it is always difficult to compare offences which are all so very serious and abhorrent, a review of these sentences does suggest that the total sentence imposed in this case of 18 years imprisonment is so high as to be outside the appropriate range. Bearing in mind the serious nature of these offences which constitute a shocking breach of trust and abuse of innocence, the applicant's poor criminal history and the fact that he can gain no benefit from any early plea of guilty or any demonstration of remorse, a total period of imprisonment of 14 years is appropriate. It is of little consequence whether this is structured by way of two cumulative sentences or by way of concurrent sentences. In some ways, concurrent sentences reflect more appropriately the seriousness of the applicant's conduct and the facts in respect of the two series of offences are closely enough related not to demand cumulative sentences. A total sentence of 14 years imprisonment then properly reflects the serious nature of these charges and the surrounding circumstances.

47 I would dismiss the appeal against conviction but grant the application for leave to appeal against sentence. I would vary the sentences imposed below by substituting in respect of counts 3, 4 and 5 a sentence of 14 years imprisonment. I would delete the orders below requiring that the sentence imposed on counts 3, 4, 5 and 6 be served cumulatively with the sentences imposed on counts 1 and 2. Otherwise the orders below will remain.

Before McMurdo P.

Pincus J.A.

Williams J.

1 I have read the reasons of the President and those of Williams J. Substantially for the reasons their Honours give, I am of opinion that the appeal and application should be disposed of as they propose.

2 As to the sentence, in R. H. McL [1998] VSCA 61, judgment 9 October 1998, the Victorian Court of Appeal had to deal with a rather similar case - i.e. similar in that a stepfather, a man of mature years, both personally abused his young stepchild in a sexual way and caused her to engage in prostitution. The circumstances of the Victorian case were, as it seems to me, worse than those with which we are concerned and this applicant pleaded guilty to two of the counts, those relating to prostitution, whereas McL went to trial on all counts. Further, in the Victorian case, there was a greater number of offences against the main complainant and there was a conviction of a single count of incest in respect of another stepchild. In McL a total effective sentence of 12 years imprisonment was fixed by the Court of Appeal with a non-parole period of 10 years; and under s.11 of the Sentencing Act 1991 (Vic.), the effect of the latter order was to make McL ineligible for parole for 10 years. In view of the uncertainty as to when the present applicant, who is to be sentenced to 14 years, is likely to be released on parole, it is not easy to compare the two sentences; but the result in McL, where the offences were similar but worse, tends to support the view that the sentence originally imposed on this applicant was too high. As I have said, I agree that the orders favoured by the other members of the Court should be made.

1 The facts relevant to this appeal against conviction and application for leave to appeal against sentence are set out in the reasons for judgment of the President.

2 I agree that the appeal against conviction should be dismissed, and wish only to add some brief observations.

3 The complainant's evidence with respect to each of the three rape charges was extremely brief - in one instance not much more than one line of evidence in chief. However, that evidence has to be read in the light of all the evidence, including that given by the appellant. Clearly the appellant took advantage of the complainant sexually from a time when she was very young and immature sexually. On his account (which was largely rejected by the jury) he was prepared to accept sexual favours from his step daughter whom he admittedly introduced to prostitution.

4 Given her evidence (which was accepted by the jury) the three rapes were but a relatively small part of the life of sexual promiscuity forced on her. The evidence broadly supports the proposition that from the time she was introduced to prostitution by the appellant, the complainant was overborne by the appellant and her life-style was determined by her fear of rebelling against the appellant's (her step-father's) wishes.

5 In relation to the three rapes the critical argument raised by counsel for the appellant was the lack of evidence relating to consent. The complainant, on her own evidence, neither said nor did anything at the time to convey absence of consent to the appellant. Her evidence was that she acted out of fear in complying.

6 There was ample evidence on which the jury could be satisfied that both the complainant and her mother were under the control and influence of the appellant through fear, principally fear of physical assault. Two of the rapes occurred, according to the complainant's evidence, whilst she was being driven back by the appellant to the family home from sexual encounters with paying customers. In the circumstances the fear which constrained her to lead the life of a prostitute was precisely the same fear which resulted in her non-resistance to the rapes.

7 Given the whole of the evidence the jury were entitled to conclude beyond reasonable doubt that each of the three acts of intercourse in question occurred without the complainant's consent, and that the appellant was aware that she was not a consenting party.

8 The attack on the sodomy conviction was primarily on the ground that the verdict was unsafe and unsatisfactory. Prima facie the complainant gave a credible account of that incident, including evidence of the painful consequences to her. The appellant denied that any such incident occurred, but also gave evidence that no incident such as that described by the complainant could have occurred because there was no seat in the Chev motor vehicle whilst it was in the shed. The complainant maintained that she was bending over with her hands through the door of the motor vehicle and on the seat. The appellant called some evidence tending to corroborate his account that whilst that vehicle was in the shed the seats were removed. The force of such evidence is significantly affected by the fact that the complainant was unable to put a precise date on the incident. In all the circumstances there were many possible explanations for the conflict of evidence. One of those explanations could well be that the complainant was mistaken when she said that her hands were on the seat of the vehicle; such an explanation does not necessarily mean that the jury should have a reasonable doubt about her evidence when she said that she was sodomised by the appellant in the shed adjacent to the motor vehicle. That was very much a question for the jury. There was no challenge to the summing up in this regard, and in the circumstances I cannot accept that the verdict of guilty should be set aside as being unsafe and unsatisfactory.

9 I turn now to the application with respect to sentence. The learned trial judge structured the sentence as follows:

(i) Count 1 - procuring prostitution by a person not an adult - 8 years;

(ii) Count 2 - knowingly participating in provision of prostitution by a person not an adult - 8 years;

(iii) Counts 3, 4 and 5 - three counts of rape - 10 years imprisonment on each;

(iv) Count 6 - unlawful anal intercourse - 6 years imprisonment.

10 The sentences on counts 1 and 2 were to be served concurrently, and the sentences on counts 3, 4, 5 and 6 were to be served concurrently but cumulatively on the sentences imposed for counts 1 and 2. In other words the sentence was effectively 18 years imprisonment with no recommendation for early release on parole.

11 The learned President has analysed a number of Court of Appeal decisions in coming to the conclusion that the sentence as imposed was manifestly excessive and should be reduced so that the effective sentence was 14 years imprisonment. The authorities referred to (particularly R v C & Anor; exparte A-G (Qld) CA No 269 of 1998 and CA No 270 of 1998, R v S CA No 373 of 1997, and R v B & P CA No 345 of 1997 and CA No 346 of 1997) convince me that a sentence of 18 years is manifestly excessive. In my view a consideration of all the authorities analysed indicates that the criminality involved in the offences of which the appellant was convicted calls for a head sentence of 14 years imprisonment. I agree with the President that concurrent sentences are more appropriate in the circumstances of this case. The convictions on counts 1 and 2 make the convictions on the other counts more serious, but cumulative sentences are not called for.

12 In the circumstances I would vary the sentences imposed below by setting aside the sentence of 10 years on each of counts 3, 4 and 5 and substitute therefor sentences of 14 years imprisonment. I would delete the requirement that the sentences on counts 3, 4, 5 and 6 be served cumulatively with the sentences imposed on counts 1 and 2, and order that all sentences be served concurrently.

13 Leave to appeal should be granted, the appeal allowed, and the sentences imposed in the District Court varied as I have indicated.

[1] Record, 22.

[2] [1995] QCA 45; [1996] 1 Qd.R. 641 at p. 646.

[3] Criminal Code, s. 24.

[4] Part 9A, Penalties and Sentences Act 1992.

[5] Mill v. R. [1988] HCA 70; (1988) 166 C.L.R. 59.

[6] (unreported, No. 13 of 1991, Queensland Court of Criminal Appeal (Thomas J., Ambrose J. and Lee J.), delivered 28 March 1991).

[7] (unreported, C.A. No. 316 of 1993, delivered 7 October 1993).

[8] (unreported, Court of Criminal Appeal No. 342 of 1986, delivered 4 March 1987)

[9] (unreported, Court of Criminal Appeal No. 98 of 1989, delivered 4 August 1989)

[10] (unreported Court of Criminal Appeal No. 248 of 1980, delivered 3 March 1981)

[11] (1994) 71 A.Crim.R. 305.

[12] (unreported C.A. Nos. 269 and 270 of 1998, delivered 23 October 1998)

[13] (unreported, C.A. No. 373 of 1997, delivered 20 March 1998).

[14] See R. v. B & P (C.A. Nos. 345 and 346 of 1997, delivered 20 March 1998).