R v RAC [2008] QCA 185

Judgment (57 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

**[1] McMURDO P: On 14 May 2007 the applicant pleaded guilty to an ex officio indictment charging eight counts of rape and two counts of indecent dealing with circumstances of aggravation. The victim was his six year old step-son. The applicant was sentenced to 10 years imprisonment on each count. He contends that the sentence was manifestly excessive.

[3]

[2] An agreed set of facts was tendered at sentence and set out the following matters. The applicant had been in an intimate relationship with the complainant's mother since she was three months pregnant with the complainant. He was a father-figure to the complainant. He and the complainant's mother married in 2002 and had a child. They separated permanently on 13 October 2003. After the separation the complainant and his younger brother would stay at the applicant's home every second weekend. In September 2006 the mother noticed the complainant and his younger brother touching each other's penises. She told them not to do this. She later discussed the matter with the complainant. He told his mother that the applicant sometimes put his penis in the complainant's mouth and made him suck it; sometimes he put his penis in the complainant's bottom and this really hurt.

[4]

[3] The mother took the complainant to police who recorded their interview a few weeks after his seventh birthday. The child gave the following information to police. The applicant played the "doodle in the bum" game. On one occasion this had hurt him so much that he put a pillow over his face. The "doodle" was a penis. The applicant put his penis in the complainant's mouth and "did a pee in it, and that it tasted disgusting and that he had to spit it out in the toilet". He said these incidents had occurred on a number of occasions.

[5]

[4] A medical examination of the boy revealed no abnormalities in the anal area.

[6]

[5] The complainant's mother telephoned the applicant. The telephone call was recorded by police. She told the applicant the complainant had told her about the "doodle in the bum game and ... everything else". She asked him why he had done these things. He replied that he did not know.

[7]

[6] The applicant agreed to be interviewed by police and made the following frank admissions. When the child was six years old he put his penis in the child's mouth and had the child perform oral sex upon him until he ejaculated into a towel (count 1, rape).

[8]

[7] About a month later, when the child was still six years old, he again had the child perform oral sex on him for about 10 to 20 minutes before ejaculating into a shirt (count 2, rape).

[9]

[8] About a month later, again when the child was still six years old, he took the child fishing. On the way home he asked the child to again perform oral sex upon him. He had the child do this whilst the applicant was driving the car home. The episode continued for about 20 minutes before he told the complainant to stop (count 3, rape).

[10]

[9] At about this time, when they were in his bathroom, he asked the complainant to "put it in your mouth please". The child then performed oral sex upon the applicant until he ejaculated into the child's mouth. The child screwed up his face. The applicant told him to spit out the semen (count 4, rape).

[11]

[10] On another occasion in early 2006 when the child was still six years old, the applicant was lying down in the child's bedroom. He again asked the child to perform oral sex upon him. The child complied. He ejaculated, but not in the child's mouth (count 5, rape).

[12]

[11] Sometime after that incident, but when the child was still six years old, the applicant was in his bedroom with the child. He asked "Do you want to try putting it in your bum?" He had the child lie face down naked on the bed. He put sorbelene on the child's buttocks and on his own penis. He then inserted his penis into the child's rectum. The child said, "Stop, it hurts." He left his penis in the child's rectum for about another minute until the child again complained about the pain and he withdrew. He knew the child was not a willing participant and that his actions would cause the child pain (count 6, rape).

[13]

[12] Soon afterwards, when the boy was still six years old, they were both lying on the applicant's bed. He made the child take his clothes off. The boy said he did not want the applicant to put his penis in his bottom again. The applicant said they would just pretend. He rubbed his penis between the cheeks of the complainant child's buttocks until he ejaculated onto a towel. The child asked when it was going to be finished (count 7, indecent dealing).

[14]

[13] A few weeks later the applicant asked the child to come into his bedroom and "pretend again". The child wanted to watch cartoons. The applicant said he could do that afterwards. The applicant again rubbed his penis through the cheeks of the complainant's buttocks for about 20 minutes until he ejaculated into a shirt (count 8, indecent dealing).

[15]

[14] About a month later the applicant asked the complainant child "Do you want to try and put my doodle in your bum again?" The child asked how long it would take. The applicant said not long. He made the complainant take off his clothes and get on his hands and knees on the bed. He put some moisturising cream on the complainant's buttocks and on his own penis and pushed his penis into the child's rectum. The child said it hurt. He left his penis in the child's rectum for a couple of minutes, moving it around a bit. The child told him two or three times that it hurt; he started to cry. The applicant then removed his penis (count 9, rape).

[16]

[15] In mid-August 2006 the applicant told police that he and the complainant were in his bedroom when he again asked the complainant child to participate in sodomy. The child told him he didn't want to do this anymore. The applicant said it would be the last time. He had the child take off his clothes. He applied moisturising cream to the child's buttocks and to his own penis. He then put his penis into the child's rectum. The child said it hurt. The applicant said they would be finished soon. He moved his penis in and out of the child's rectum until he withdrew and ejaculated onto a towel. The child told him about four or five times that it hurt (count 10, rape).

[17]

[16] A victim impact statement prepared by the child's mother unsurprisingly speaks of the enormous detrimental impact the offending has had, primarily on the child victim, but also on his family, particularly on his mother and younger brother.

[18]

[17] The applicant was 26 and 27 at the time of the commission of the offences and 28 at sentence. He has no criminal history. He did not apply for bail and so had been in custody since the police interview on 12 September 2006, by the time of sentence a period of 420 days.

[19]

[18] The prosecutor at sentence referred to R v Robinson,[1] R v D,[2] R v Luke[3] and R v S.[4] She submitted that those cases showed a hardening of the court's attitude to these types of offences and "taking into account all the circumstances of aggravation and the matters of mitigation, especially the ex officio plea of guilty, it's submitted that a sentence between the 12 to 14 year mark would be appropriate".

[20]

[19] Defence counsel at sentence tendered a report from psychiatrist Dr Michael Likely. That report contained the following information. The applicant stated that he was himself abused by his biological father when he was between six and 15 years of age. The applicant felt guilty about his conduct towards the complainant. He was prepared to take part in a sexual offender treatment program. He would benefit from participating in such a program. After his sentence for these matters was finalised, he was considering laying charges against his father for the sexual abuse which he apprehends "has basically ruined [his] life". He has some intellectual insight into his behaviour although his continuing ongoing arousal by thoughts of sexual activity with pre-pubescent children is concerning. He had received counselling for his sexual interest in children for six months a couple of years prior to the commission of these offences. He stopped the counselling for financial reasons. That psychologist is now deceased.

[21]

[20] Defence counsel emphasised that it was only the applicant's detailed and frank admissions to police that enabled so many specific charges to be brought against him. Those charges reflected the full extent of his offending. This was not a case where a number of specific incidents could be recalled by the complainant with innumerable episodes of sexual abuse interspersed between them. A number of the charges could only be brought because of the applicant's frank admissions. Defence counsel referred to a number of Court of Appeal decisions. He ultimately submitted that had the applicant gone to trial, a sentence in the range of 10 to 11 years was appropriate; because of his plea of guilty to an ex officio indictment, full co-operation with the police, absence of criminal history and other mitigating matters, a sentence of nine years imprisonment without a serious violent offender declaration was appropriate.

[22]

[21] The learned sentencing judge reserved his decision for over a month and obviously gave considerable thought to the appropriate sentence. He referred to the following matters. There were serious aspects to the offending. The maximum term of imprisonment for the rape offences was life and for the indecent treatment offences, 20 years. The applicant was the young boy's father-figure. His conduct was a gross breach of trust. At times, he persisted in gratifying his desires in spite of the child's crying and protests that it was hurting. The child has been emotionally scarred by the offending. It has also had a devastating effect on the child's mother and brother. The applicant had previously had counselling about intrusive thoughts involving child sexual activity but had stopped this before committing the offences.

[23]

[22] The judge also referred to Dr Likely's psychiatric report and its account that the applicant was himself the victim of sexual abuse at the hands of his own father. The applicant had no prior offending history. He had pleaded guilty to an ex officio indictment so the child did not have to give evidence in court.

[24]

[23] Balancing the aggravating and mitigating features the primary judge concluded that 10 years imprisonment was the appropriate sentence on each count. His Honour stated: "I have taken into account your pleas of guilty in a reduction of the head sentences which amounts to two years." His Honour also declared that the period of 458 days spent in pre-sentence custody was imprisonment already served under the sentence.

[25]

[24] The applicant contends that the sentence of 10 years imprisonment was manifestly excessive. He first submits that the sentencing judge failed to sufficiently moderate the sentence for the mitigating factors that the applicant pleaded guilty to an ex officio indictment after admitting, not only known facts, but facts relating to his own unlawful conduct beyond the knowledge of the authorities. The applicant's second contention is that the sentencing judge's starting point of 12 years imprisonment after a trial was too high. He has referred us to R v S, R v BAY[5] and R v SAK. [6]

[26]

[25] The respondent contends that Robinson and D demonstrate that the judge's approach which took as a starting point a sentence of 12 years imprisonment after a trial was not too high and that the sentence was within range. The respondent submitted that if a sentence of less than 10 years was substituted, this was an appropriate case in which to declare the offences serious violent offences under Pt 9A Penalties and Sentences Act 1992 (Qld).

[27]

[26] The applicant's co-operation with the authorities was extensive. But for his frank admissions he would not have been charged with as many offences and the full extent of his offending would not have become known. He has exhibited remorse through his co-operation with police and by his early plea of guilty to an ex officio indictment. In not applying for bail, the applicant seems to have acknowledged his wrong-doing, that a lengthy custodial sentence is inevitable, and to have demonstrated a desire to receive treatment and to attempt to reform. The fact that he was a victim of child abuse by his own father is no excuse for repeating this predatory conduct on his step-son, but it does provide an explanation for what would otherwise appear to be inexplicable. It is encouraging that he realises he must now deal with these issues in order to rehabilitate.

[28]

[27] That said, the applicant's offending was a complete breach of his fatherly role. He committed eight serious rapes upon his innocent six year old step-son over an eight month period. He often ignored the boy's tears or protests of pain to gratify his own perverted whims. The child and his mother and brother have been emotionally devastated and may never fully recover. A salutary penalty was warranted to reflect the gravity of the offending. But the penalty must also reflect the significant mitigating features mentioned in the preceding paragraph.

[29]

[28] If the learned primary judge was right that the head sentence, had the matter proceeded to trial, was in the order of 12 years imprisonment, a discount of that sentence by only two years for the important mitigating features in this case does not give sufficient weight to the applicant's extensive co-operation with the authorities: see AB v R.[7] The very extensive co-operation with the authorities and the other mitigating factors warranted a discount of about one-third, rather than the discount of one-sixth given by the primary judge.

[30]

[29] The case of Luke was relied on by the respondent. It was also referred to in the recent case of Robinson, on which the respondent also relied. Luke was decided by the Court of Criminal Appeal in 1987, well before the introduction of Pt 9A Penalties and Sentences Act 1992 (Qld). Luke was 25 years old. He was sentenced to life imprisonment after pleading guilty to a single count of raping a six year old girl. She screamed at the time and was seen to be bleeding immediately afterwards. He had consumed a large amount of alcohol. There was competing evidence as to whether the chance of recidivism was high. The court concluded that the sentence was manifestly excessive in that it failed to reflect the absence of a sustainable view that Luke would be likely to re-offend similarly in the future and because it was desirable to sentence to determinate periods of imprisonment where that was possible. The court substituted a sentence of 18 years imprisonment. At that time, this meant that Luke would have been eligible for parole after serving nine years. Because Luke was decided over 20 years ago and because of its quite different facts and circumstances, it is of almost no assistance in determining the appropriate range in the present case.

[31]

[30] The more recent case of Robinson seemed also to turn very much on its own facts and circumstances. Robinson was convicted after a jury trial of maintaining a sexual relationship with a child under 16 years and two counts of rape. He was sentenced to life imprisonment. His appeal against conviction was dismissed. His application for leave to appeal against sentence was granted and his sentence was reduced to 18 years imprisonment. Between May 2003 when the complainant was five years old and March 2005 when she was seven years old, Robinson maintained a sexual relationship with her. He was a close friend of the complainant's parents and abused the trust they placed in him. The sentencing judge found that during the course of the relationship Robinson probably interfered with her by way of penile penetration "lots of times". The victim impact statements showed that the offending had destroyed the lives of the child and her parents whose marriage had broken down and who were forced to sell their home and move from the small town in which they had lived. Robinson was also convicted of two specific counts of raping the young complainant in his motor vehicle on 2 March and 24 March 2005. Police had fitted his motor vehicle with a listening device in respect of other investigations and so unwittingly discovered these offences. After hearing these tapes, the judge concluded that Robinson was a paedophile and at danger of re-offending in the future. The sentencing judge noted that the tape recordings showed:**

[32]

"... that the complainant was suffering what appears to be significant pain and she expressed opposition to the penile penetration ...

[33]

She said this, "Don't, don't, don't. No, you're pushing me. No, no, no. Oh no. No, no, no. Ow". You said "Open your legs a bit quick quick". She said "No. Ow, ow, ow, ow, ow, no". You said "Come on". She said "No". "Quick, lay your legs straight". "No. Ow, ow, ow, no, no, no. I don't want to do it. I don't want to do it". You said something like "Here it goes. Are you ready". She said "No". She said "I don't want it in."

[34]

In my view, the submission by [the prosecutor] that it is likely that earlier occasions were also painful and probably a lot more painful than that occasion has substance in it."

[35]

**[31] The sentencing judge found that Robinson had groomed the young girl and accustomed her to sexual contact; the offences were "of the gravest type of such offending ... us[ing] such force as was necessary to achieve [his] purpose and ... certainly so far as the last instance is concerned over fairly significant resistance on the part of the complainant."

[36]

[32] Robinson is of no real assistance in determining the appropriate sentencing range in the present case.

[37]

[33] R v D is yet another case to which we have been referred where the facts are quite different to the present. D pleaded guilty to deprivation of liberty and rape and was sentenced to 12 years imprisonment for the rape. He was 40 years old and the child was five. He had a very lengthy criminal history involving offences of dishonesty and violence but no previous convictions for sexual offences. D was a neighbour of the child. He had taken or lured the child from her back yard where she was playing. About 10 to 15 minutes later he was discovered by the child's mother in his bedroom. D was leaning over the naked child and touching her vaginal area while holding down her legs. Her hymen was found to be bruised and haemorrhage was evident with a suspected possible laceration, consistent with digital penetration. It was a late plea of guilty. This Court determined the sentence was manifestly excessive and substituted a sentence of 10 years imprisonment.

[38]

[34] R v S is of slightly more assistance. S was convicted after a trial of three counts of unlawful carnal knowledge by anal intercourse of a child under 12, one count of unlawful anal intercourse of a child under 12 in his care and one count of maintaining a sexual relationship with a child under 16, in the course of which he had carnal knowledge by anal intercourse with a child under 12 in his care.

[39]

[35] He was sentenced to 10 years imprisonment on each count, so that he was eligible for parole after serving five years of that term. The offences, however, pre-dated Pt 9A Penalties and Sentences Act. This Court noted the breach of trust in committing the offences against such a young girl. He was 24 years old at sentence. He had some criminal history, including for arson of a motor vehicle but he had no prior sexual offences. The offences were committed against two children aged between six and eight years during the offending. He involved the female complainant's brother in one of the sexual acts so that she was penetrated by them both. He was a friend of her parents, lived in their house and from time to time looked after her. He showed no remorse, and the children had to give evidence and be cross-examined. This Court refused the application for leave to appeal.

[40]

[36] In SAK, SAK was convicted after a trial of maintaining a sexual relationship with his step-daughter from 1 January 1990 until 31 December 1999 while she was under the age of 16 with a circumstance of aggravation that he raped her in the course of the relationship, one count of indecently dealing with her when she was under the age of 12 and two charges of rape. She was aged between five and 15 at the time of the offending. He was sentenced to 11 years imprisonment for the maintaining charge and to lesser concurrent terms of imprisonment in respect of the other counts. The 11 year term of imprisonment involved an automatic declaration under Pt 9A of the Penalties and Sentences Act that the maintaining offence was a serious violent offence. Four months later he pleaded guilty to maintaining a sexual relationship with another step-daughter while she was under the age of 16 in the course of which he raped her whilst she was under his care, and three counts of rape. For those offences, he was sentenced to an effective term of 11 years and three months imprisonment concurrent with the sentences previously imposed. This Court considered that the sentences were not manifestly excessive. The offences against the first step-daughter took place over many years in circumstances where the victim was subjected to his physical violence and for which he showed no remorse. The offences involving the second step-daughter involved at least 10 occasions of rape during the period of the relationship. He again showed no remorse and had endeavoured to have her perjure herself.

[41]

[37] In BAY, BAY was sentenced to 12 years imprisonment on a count of maintaining an unlawful sexual relationship with his seven year old step-daughter with circumstances of aggravation. He also pleaded guilty to a further 36 counts. Counts 2 to 25 and 27 to 31 were offences of indecent treatment of a child under 16 with a circumstance of aggravation. There were also three counts of incest and four counts of sexual assault. He initially pleaded not guilty, but after his interviews with police were ruled admissible at his trial he changed his plea to guilty so that the complainant was not required to give evidence at any stage. The offences occurred over a 10 year period commencing when the complainant was seven years old. By the time she was 10 he was putting his finger into her vagina and hurting her, putting his finger into her anus and making her perform oral sex on him. He first had sexual intercourse with her when she was 12 or 13 years old. When she began to cry he stopped and masturbated. He was violent towards her, her siblings and her mother. At one time he punched her in the face and threatened that if she left he would turn his sexual attention to her younger sisters. Two further episodes of incest occurred when she was 16 years old. This Court determined that the sentence imposed of 12 years imprisonment was not sufficiently ameliorated to recognise the plea of guilty which, although not early, saved the complainant and other family members from being required to give evidence at any stage. The Court substituted an effective term of 10 years imprisonment.

[42]

[38] It is clear from this discussion that none of the many cases to which we have been referred by both counsel are directly comparable to the present case. Cases involving the multiple offences of sexual abuse on young children by those in a position of trust are infinitely varied. It is seldom, if ever, possible or desirable to precisely mathematically calculate the sentence which should be imposed in one case from reviewing those imposed in others.

[43]

[39] I have already referred to the serious aspects of the present applicant's offences. In my view, the judge was right to consider that, had the applicant been convicted after a trial of these offences a sentence of 12 years imprisonment was certainly within range. In sentencing, the judge did not err in taking as a starting point, 12 years imprisonment after a trial. But to discount that 12 year sentence by only two years for the applicant's very early plea of guilty and extensive co-operation with the authorities was to give too little effect to this important feature in cases of this sort. A discount of one-third or four years of the 12 year sentence was warranted in this case.

[44]

[40] I would grant the application for leave to appeal, allow the appeal, set aside the sentence imposed at first instance and instead on each count of rape impose a sentence of eight years imprisonment. The serious nature of the offending, involving as it did rapes committed by a step-father on such a young child over an extended period, warrants a declaration that each offence of rape was a serious violent offence requiring the applicant to serve 80 per cent of the eight year sentence before becoming eligible for parole.[8] On each count of indecent dealing with a circumstance of aggravation, I would impose a sentence of five years imprisonment. Those offences do not warrant declarations that they are serious violent offences.

[45]

4. On each count of rape the applicant is sentenced to eight years imprisonment and declared convicted of a serious violent offence

[46]

5. On each count of indecent dealing with a circumstance of aggravation the applicant is sentenced to five years imprisonment

[47]

6. Pursuant to s 161 of the Penalties and Sentences Act 1992 (Qld), it is declared that 458 days spent in pre-sentence custody between 12 September 2006 and 13 December 2007 be deemed time already served under the sentence

[48]

[41] MUIR JA: I agree with the reasons of McMurdo P and with the orders she proposes.

[49]

[42] CULLINANE J: I have read the reasons of the President in this matter and agree with those reasons and the orders she proposes.**

[50]

[1] [2007] QCA 99.

[51]

[2] [2003] QCA 88.

[52]

[3] Unreported, Court of Criminal Appeal, Qld, CA No 342 of 1986, 4 March 1987.

[53]

[4] [1999] QCA 311.