R v SAU [2006] QCA 192

Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: The applicant seeks leave to appeal against a sentence of eight years' imprisonment with a recommendation for eligibility for parole after three years. That sentence was imposed on him in respect of one count of maintaining a sexual relationship over a period between 1st April 1999 and 27 March 2001 with a circumstance of aggravation, that being incestuous carnal knowledge.

The complainant was 14 when the period of offending began and turned 16 shortly after its end date. The applicant's conduct in respect of her included showing her pornographic movies, touching her vaginal area and masturbating her and himself, using a vibrator on her, making her perform fellatio on him and ultimately engaging in regular penetrative intercourse with her over a period of about 12 months.

In January 2003 the complainant disclosed to her mother what had happened. In the ensuing police investigation the applicant initially denied any wrongdoing but ended by acknowledging the truth of most of what the complainant had said. However, despite that admission the complainant was required to give evidence at a committal hearing and the matter was sent to trial.

The applicant successfully applied for the exclusion of his admission but after a ruling by this Court on an Attorney-General's reference, that the applicant's statements were not rendered inadmissible by the way he was questioned, the matter was returned to the District Court where further argument took place and rulings were made. On the day before trial the applicant indicated that he would plead guilty to a new indictment in the present form, which narrowed the dates of the allegations considerably and omitted a further count of incest.

The applicant was 47 at the time of the sentence. His only criminal history consisted of a summary offence some decades previously. A victim impact statement for the complainant was put before the Court, in which she said that the charge against her father had caused a rift with her family so that she no longer had any contact with her mother, brothers or extended family. The expectation of having to give evidence had also placed her under considerable pressure over the three years between her father's charging and his sentencing.

The learned sentencing Judge referred in her sentencing remarks to the applicant's gross breach of trust in offending against his young daughter; to the fact that the sexual intercourse occurred regularly, with some minor risk of pregnancy; and to the fact that the complainant had had to endure cross-examination at the committal. In his favour, she took into account the applicant's antecedents; the plea of guilty which was not properly described as early, but was an indication of remorse; that there was no physical violence, although it was made clear to the complainant that she had no real choice; that there was some indication of remorse in the admission in the police interview, although that was tempered by later attempts to have it excluded; and the fact that the applicant had desisted from intercourse after March 2001, although no complaint occurred until January 2003.

The maximum sentence for the offence of maintaining an unlawful sexual relationship with a circumstance of aggravation of the kind alleged here was, at the relevant time, life imprisonment. The learned sentencing Judge had particular regard to the decision of this Court in R v H [2003] QCA 392, in which a sentence of eight years' imprisonment with a recommendation of parole after three years in respect of a count of maintaining a sexual relationship with a circumstance of aggravation was upheld. The applicant there had no previous relevant criminal history. The aggravating circumstance was one of incestuous carnal knowledge, which was also the subject of two separate charges, based on the extended definition of "off-spring" in section 222 of the Criminal Code. After a careful review of the authorities, Justice Philippides with whom the other members of the Court agreed, concluded that the sentence, while at the upper end of the sentencing range, was within the sentencing discretion.

The Crown here in written submissions also relied on this Court's decision in R v BAY [2005] QCA 427 in which a sentence of 10 years' imprisonment was imposed but the circumstances were worse: the child was only seven when the relationship began, and it continued for seven years, involving a variety of forms of abuse.

Reference was also made to R v L [2002] QCA 268. In that case, the relationship had lasted for nine months when the complainant was 15 years old. The applicant there appealed against a sentence of four years' imprisonment. The Court indicated that an appropriate sentence would have been five or six years' imprisonment, but there were unusual mitigating features. The applicant had himself volunteered the information about the offending to police some 10 years after it had occurred and had voluntarily begun counselling and treatment programs.

Counsel for the applicant sought to distinguish R v H, because there the perpetrator had threatened the complainant. He had said that he would tell her mother things to her discredit and that she would no longer have a family if she did not comply. I do not think that in the present case the applicant's conduct, which included his telling the complainant before the first occasion of sexual intercourse that they could do it the easy way or the hard way, that it would hurt if she did not cooperate, is significantly less reprehensible. Counsel also pointed out that the applicant here had voluntarily desisted from offending, and that clearly is a point of distinction from the circumstances in R v H.

On the other hand though, there are features of that case which put the applicant there in a better light. The child was not the applicant's natural daughter. The matter proceeded by way of ex officio indictment, and although the offending had occurred over a two year period, approximately, there were only two acts of intercourse.

The head sentence here, given the nature and extent of the offending, is not out of proportion to those imposed in the other matters cited. Counsel for the applicant also pointed to his eventual plea of guilty, his good character and the great delay in the matter being finalised. I would consider the last a largely neutral feature in the circumstances of this case. The other matters, in my view, were properly reflected in the recommendation for parole. I do not consider that the sentence fell outside a proper exercise of the sentencing discretion and I would dismiss the application for leave to appeal.