Court of Appeal (Qld)|2008-08-01|Before: Holmes and Fraser JJA and Mackenzie AJASeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Holmes and Fraser JJA and Mackenzie AJASeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPEAL BYATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASESENTENCE – OFFENCES AGAINSTTHE PERSON – where TR pleaded guilty to62 offences relating to her daughter – where TR sentenced to 13 yearsimprisonmentfor procuring and knowingly participating in the prostitution ofher daughter and six years imprisonment for maintaining an unlawfulsexualrelationship with her daughter – where, taking into account time spent inpre-sentence custody, TR was required to servefour years before being eligiblefor parole – where the learned sentencing judge made reference to the factthat the offenceswere not performed for TR’s sexual gratification butrather to promote TR’s prostitution service – where theAttorney-Generalappealed against the six year sentence for maintaining and the
parole eligibility date – whether the six year sentence for
maintaining
failed to reflect the gravity of the offending behaviour – whether the
sentence was manifestly inadequate –
whether a serious violent offence
declaration should have been made
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE
SENTENCE – OFFENCES AGAINST
THE PERSON – where FV pleaded guilty to
41 offences relating to his daughter – where FV sentenced to 10 years
imprisonment
for procuring and knowingly participating in the prostitution of
his daughter and seven years imprisonment for maintaining an unlawful
sexual
relationship with his daughter – where FV played a less direct role in the
prostitution of the child – whether
the learned sentencing judge erred in
imposing a longer sentence on FV than TR for maintaining – whether the
seven year sentence
for maintaining was manifestly inadequate – whether a
serious violent offence declaration should have been made
Criminal Code 1899 (Qld), s 210(1)(f), s 228, s 229B, s
567Penalties and Sentences Act 1992 (Qld), s 159A, Serious
Violent Offences Schedule
R v B and P [1999] 1 Qd R 296
[1998] QCA
45, consideredR v B and P [2000] QCA
379, consideredR v Eveleigh [2003] 1 Qd R 398
[2002] QCA
219, citedR v McDougall and Collas [2007] 2 Qd R 87
[2006] QCA
365, cited R v Melano, ex parte Attorney-General [1995] 2 Qd R
186
[1994]
QCA 523, citedR v P [1998] QCA
402, consideredR v SAG (2004) 147 A Crim R 301
[2004] QCA
286, considered
Judgment (104 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON - where TR pleaded guilty to 62 offences relating to her daughter - where TR sentenced to 13 years imprisonment for procuring and knowingly participating in the prostitution of her daughter and six years imprisonment for maintaining an unlawful sexual relationship with her daughter - where, taking into account time spent in pre-sentence custody, TR was required to serve four years before being eligible for parole - where the learned sentencing judge made reference to the fact that the offences were not performed for TR's sexual gratification but rather to promote TR's prostitution service - where the Attorney-General appealed against the six year sentence for maintaining and the parole eligibility date - whether the six year sentence for maintaining failed to reflect the gravity of the offending behaviour - whether the sentence was manifestly inadequate - whether a serious violent offence declaration should have been made
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON - where FV pleaded guilty to 41 offences relating to his daughter - where FV sentenced to 10 years imprisonment for procuring and knowingly participating in the prostitution of his daughter and seven years imprisonment for maintaining an unlawful sexual relationship with his daughter - where FV played a less direct role in the prostitution of the child - whether the learned sentencing judge erred in imposing a longer sentence on FV than TR for maintaining - whether the seven year sentence for maintaining was manifestly inadequate - whether a serious violent offence declaration should have been made
[3]
Criminal Code 1899 (Qld), s 210(1)(f), s 228, s 229B, s 567
Director of Public Prosecutions (Qld) for the appellant
[13]
**[1] HOLMES JA: I agree with the reasons of Mackenzie AJA and the orders he proposes.
[14]
[2] FRASER JA: I agree with the reasons of Mackenzie AJA and the orders proposed by his Honour.
[15]
[3] MACKENZIE AJA: This is an appeal by the Attorney-General against sentence.
[16]
[4] TR was charged with 62 offences and FV with 41 offences, all of which related to their daughter. Counts 1 and 2 charged them individually with maintaining an unlawful relationship of a sexual nature with a girl under 16, for which the maximum penalty is life imprisonment. Counts 3 and 4 charged them jointly with knowingly participating in the provision of prostitution by their daughter, and procuring her to engage in prostitution respectively, both of which carry a maximum penalty of 14 years because the girl was not an adult. She was aged between 12 and 13 at the time of the offences.
[17]
[5] The remaining offences may be summarised in the following way:**
[18]
(a) Count 5: TR and FV jointly charged with unlawfully and indecently dealing with a child under 16 who was their lineal descendant and in their care;
[19]
(b) Counts 6 to 32: TR and FV jointly charged with taking indecent visual images of a child under 16 who was their lineal descendant and in their care;
[20]
(c) Counts 33 to 42: TR and FV jointly charged with exposing (on a website) obscene pictures of a child under 16;
[21]
(d) Count 43: individual count against TR for indecently dealing with a child under 16 who was her lineal descendant and in her care;
[22]
(e) Counts 44 to 48: individual counts against TR for raping the complainant;
[23]
(f) Counts 49 to 51: individual counts against TR for unlawfully and indecently dealing with a child under 16 who was her lineal descendant and in her care;
[24]
(g) Counts 52 to 63: individual counts against TR for taking indecent photographs of a girl under 16 who was her lineal descendant and in her care.
[25]
**[6] Pleas of guilty were entered to the five counts of rape with which TR was charged individually. According to the Summary of Facts they were based on photographs and showed the girl performing sex acts with an unidentified male (counts 44-45), the use of a sex aid by TR to penetrate her (counts 46-47), and TR holding the girl's leg while the girl used it on herself (count 48). The record is not very informative as to precisely why these incidents, and the last three incidents particularly, were selected as charges of rape when others of a similar character were not. However, pleas of guilty were entered to them and there is no appeal against those sentences. In any event, their exact nature is only relevant as part of the general context of the issues which the Attorney-General wishes to argue.
[26]
[7] The counts of indecently dealing are based on photographs of the girl, sometimes with TR in the photograph as well. The majority show the girl or both she and TR exposing their vaginas. Some show a dildo being used on the girl or by the girl on herself or on TR. On one occasion TR is shown sucking the girl's breast. In another, FV is depicted holding the dildo in proximity to the girl's mouth.
[27]
[8] On counts 3 and 4, TR was sentenced to 13 years imprisonment and FV was sentenced to 10 years imprisonment. The circumstances of the offences were conspicuously bad. It is demonstrated by the fact that almost the maximum available sentence was imposed on TR for counts 3 and 4, and FV was sentenced to 10 years imprisonment, that they were treated as such by the sentencing judge. On count 1, TR was sentenced to six years imprisonment. On count 2, FV was sentenced to seven years imprisonment. For the remainder of the offences, concurrent terms of imprisonment, about which no complaint is made, were imposed.
[28]
[9] By the time the sentences were imposed, TR had served 670 days in pre-sentence custody and FV 999 days. They were entitled to have this time declared as imprisonment already served by virtue of s 159A of the Penalties and Sentences Act 1992 (Qld). The effect of the eligibility dates fixed is that TR must serve four years before being eligible to apply for parole and FV three years of the longest sentences imposed. Fixing the eligibility dates after those periods had been served was particularly influenced, according to the sentencing remarks, by the consideration that, while the evidence was extremely strong, the pleas of guilty saved a child who, on the evidence concerning her fragility, would have been particularly vulnerable to the trauma of giving evidence and from the extreme distress of being forced to do so.
[29]
[10] During the period of the offending, TR had carried on a prostitution service from a permanently let motel room, and later from an address at an industrial estate. The police received intelligence that both TR and FV were knowingly involved in the prostitution of their daughter. Investigators found sexually explicit images of TR and the girl on a website that had been set up with the assistance of a web designer to attract business to the prostitution service. The site indicated that TR and the girl were available individually or together. During the investigation, numerous photographs of the girl, mostly indecent, were located at the family home and in TR's belongings. After initially trying to minimise his role, FV admitted that he had taken digital photographs that found their way on to the website, as well as other photographs taken at other times and places and had played a part in their publication on the website.
[30]
[11] A diary was found during the course of the investigation in which there were references indicating that there were 28 bookings for the girl in the period
[31]
20 February 2004 to 9 July 2004. There was other evidence that the girl had had sexual relations for money with other men. Four of them are named in the summaries of facts placed before the sentencing judge. In the case of one of them, D, he engaged in sexual intercourse and other sexual conduct with her over a period of about four months. According to the Summary of Facts of D's involvement, TR was present with the girl when he arrived at all times and on the first occasion said to him:**
[32]
[12] The Attorney-General's appeal is confined to the length of the sentences imposed for the offences in counts 1 and 2 of maintaining an unlawful sexual relationship, and to the period of imprisonment to be actually served before each offender will be eligible to apply for parole.
[33]
[13] The focus of the submissions on the Attorney-General's behalf is that, in the sentencing remarks, the learned sentencing judge said that there was some force in the argument that the acts photographed which had led to a number of substantive charges, including the maintaining charge, were not performed for TR's sexual gratification. She said the photographs appeared somewhat contrived and to be a marketing ploy for the prostitution service. Those remarks reflected submissions from both defence counsel below that the offences relating to prostitution of the respondents' daughter, not the maintaining charges, were the most serious. TR's counsel at sentence argued on her behalf that the case of maintaining was unlike the usual kind of case where children were systematically abused, often in a very predatory, manipulative and violent way, for sexual gratification by a father figure. The present case was in an unusual category since TR had no purpose of personal sexual gratification. What was done was done solely for the purpose of promoting the prostitution business.
[34]
[14] Mr Copley said on behalf of the Attorney-General that there was no challenge to the learned sentencing judge's finding that the acts done by TR in relation to the girl were not done for sexual gratification but for the purpose of advertising TR's prostitution service. But it was submitted that that did not mean that the conduct was less serious. The learned sentencing judge had erred in failing to impose sentences of the same duration for the maintaining counts as for the prostitution counts.
[35]
[15] The principal submission on the Attorney-General's behalf was that the learned sentencing judge had either failed to appreciate that counts 1 and 2 were, factually, very serious examples of maintaining an unlawful sexual relationship, or if she did, she failed to be mindful of that when she settled upon the level of sentence for them. It was submitted that the exchanges she had with counsel might lead to the conclusion that she was under a misapprehension about the breadth of the maintaining counts and what they encompassed.
[36]
[16] Ordinarily, such issues would be relatively uncomplicated, but there is an unusual level of complexity due to a number of issues that arise from the conduct of the sentencing proceedings. They may be summarised as follows:**
[37]
(a) apparent absence of agreement between counsel as to the basis of FV's plea of guilty to the count of maintaining;
[38]
(b) deficiencies in adequately defining the prosecution case on the charges of maintaining and prostitution;
[39]
(c) apparent misapprehension by the sentencing judge (corrected following an intervention by TR's counsel during sentencing remarks) as to the structure of the maintaining charges; and
[40]
(d) the relativity between the sentences imposed on TR and FV for the offences of maintaining.
[41]
**These issues overlap to some extent. It is therefore convenient to deal with them together.
[42]
[17] Before discussing those issues further, it is convenient to deal with a submission by
[43]
Mr Copley, initially founded on the proposition that the learned sentencing judge erred in not imposing the lengthiest terms on the most serious offences. Since the offences of maintaining had a maximum sentence of life and lesser maximum sentences of
[44]
14 years applied to the prostitution-related offences, the highest of the sentences imposed should have attached to the former. To the extent that it is implicit in that submission that, irrespective of the factual basis of the respective offences, the lengthiest terms should have been imposed for an offence with the highest maximum penalty, the submission is unsustainable and was acknowledged to be so during the course of the hearing.
[45]
[18] It was a corollary to this argument that a sentence of more than 10 years for the charges of maintaining would have had a significant effect on the period of time each respondent would have to serve in prison before being eligible to apply for parole. Such a sentence would have automatically triggered a serious violent offence declaration with the consequence that 80 per cent of the sentence would have to be served before there was eligibility for parole. While very substantial sentences were imposed for the offences in counts 3 and 4, they were not offences capable in law of having a serious violent offence declaration made in respect of them because they are not mentioned in the Serious Violent Offences Schedule in the Penalties and Sentences Act 1992 (Qld) which prescribes the offences in respect of which such a declaration may be made. Therefore the general discretion to fix a parole eligibility date at any point during the sentence applied to them. The eligibility dates fixed have been set out in para [9] above. For head sentences of the level imposed for counts 3 and 4, where imposition of a serious violent offence declaration cannot be made for them, the eligibility dates fall within the proper exercise of the sentencing discretion.
[46]
[19] There could be no justification for increasing the sentences imposed for the offences of maintaining an unlawful sexual relationship beyond the level that the seriousness of the offences otherwise merited in the context of all the facts, merely to enable the consequence of a serious violent offence declaration, that 80 per cent of the sentence would have to be served before parole eligibility, to take effect. The consequence that a shorter eligibility date is fixed because an offence that merited the highest penalty in the cohort of offences being dealt with is not legislatively prescribed to be within the category of "serious violent offence" in the Penalties and Sentences Act 1992 (Qld) cannot be circumvented by artificially inflating the sentence for an offence that is.
[47]
[20] With regard to the complicating issues (a) to (d) referred to in para [16], there are two points to be made at the outset. The first is that it is apparent on the face of the record that the extent of FV's liability was not common ground. The second is that the scope of the prosecution case, particularly against FV, has to be gleaned from the summaries of facts tendered in documentary form, supplemented by oral submissions by the Crown Prosecutor.
[48]
[21] The first relevant passage in the transcript in relation to the basis of the plea by FV, in which the Crown Prosecutor is the speaker, is as follows:
[49]
"... I should say this, to make it clear for the record; whilst the counsel are maintaining that both [FV and TR] are specifically particularised by acts that involved taking of photographs and associated posing... [t]he actual uncharged acts which the Crown submits should be taken into account in respect of the maintaining, includes the prostitution of the child."
[50]
[22] On the other hand, counsel for FV said in her submissions:
[51]
"The maintaining itself, obviously, is the taking of the photographs over the dates that have been charged in the schedule of facts that have been particularised. ...He was the photographer and is a party to the acts depicted in those photographs."
[52]
[23] There is nothing in the record that sheds any light on what may have passed between counsel prior to FV's plea of guilty being entered. If the proper interpretation of the statements by counsel is that the Crown Prosecutor was propounding a basis of responsibility for the maintaining offence that was not a mutual understanding of the basis of the plea - as seems to be consistent with his statement above - that issue should have been clearly resolved before sentencing either by legal argument or by evidence. It was not. The learned sentencing judge ultimately sentenced FV on the following basis:
[53]
"You were not involved in the maintaining charge relating to the sexual relationship with the man, D, or you are not charged with that and that allows for a significant discrepancy in the sentence between you and [TR]."
[54]
[24] That is consistent with the evidence, as I apprehend it. Subject to the Attorney's argument concerning misunderstanding on the part of the sentencing judge of the nature and extent of the prosecution case, it can at least be said that FV was not adversely affected as a result of the basis upon which his sentencing proceeded; he was sentenced on the proper basis.
[55]
[25] With regard to the particularisation of the prosecution case, it is necessary to go into a little detail. It is apparent from the record that the sentencing judge must have had the opportunity to read the material relied on by the Crown in advance. This was possibly a contributing factor to the lack of definition concerning the scope of the cases against the respective respondents. When the Crown Prosecutor said, shortly after he had said what is quoted in para [21], that he did not wish to go into the evidence because it was "pretty clear", the learned sentencing judge said it was all on the record and that she had read it. When the Crown Prosecutor said he wanted to make sure that there was nothing that her Honour needed to be clarified, she said:**
[56]
"No, it's been thoroughly canvassed, I would have thought."
[57]
**[26] Amongst that material were a Summary of Facts which seems to be a distillation of the relevant part of the investigation, prepared by the Crown Prosecutor, a document that lists the counts of the indictment and a brief reference to what the individual counts relate to, and a further Summary of Facts relating to the complainant's involvement with D. It is relevant to note that in the second of those documents, it is stated that counts 1 and 2 consist of "the acts particularised below with the exception of the section 210(f) (sic) photographs."
[58]
[27] The Attorney-General's counsel made a proper concession that not only the offences under s 210(1)(f) of the Criminal Code 1899 (Qld) (counts 6-32 and 52-63) but also those under s 228 (counts 33 to 42) did not involve an "act of a sexual nature" as defined in s 229B and s 229B(10), and are therefore not offences that can be relied on to prove the maintaining offence.
[59]
[28] The complete passage of oral submissions in which the Crown Prosecutor set out to express the nature of the Crown case is as follows:**
[60]
"MR WHITBREAD: Now, that's evidenced, as your Honour can see - and I'll just summarise it shortly for your Honour - with some of those photos from the scene.
[61]
MR WHITBREAD: The child's evidence, which is in that first summary, indeed, the end paragraph, 81. It talks about how she was paid to have sexual intercourse with more than 10, probably more than 20 men. The evidence of the three individual clients, whose evidence appears within the material and the diary - the 2004 diary which shows as evidence of around 28 bookings, if we can put it that way-----
[62]
MR WHITBREAD: -----together with, now, the second set of facts - that's the sexual abuse that involves [D]-----
[63]
MR WHITBREAD: So in the Crown's submission, your Honour should-----
[64]
HER HONOUR: And this is basically the mother taking [D] in and saying do what you like?
[65]
MR WHITBREAD: And it seems that whilst she was prostituting seemed to have come across, it seems - it's not clear - but, certainly, it seems [indistinct] the case. And even when she was with - the mother's with [D] on the first couple of occasions, I believe.
[66]
MR WHITBREAD: I don't want to - unless your Honour wants me to direct you to anything I don't want to go into the evidence at all. It's pretty clear-----
[67]
HER HONOUR: It's all on record. That's the main thing-----
[68]
MR WHITBREAD: -----I just want to make sure there's nothing your Honour needed to be-----
[69]
[29] The reference to "paragraph 81" is to the following:
[70]
"The complainant child was interviewed on a number of occasions and was generally reluctant to provide in depth details of the offences committed against her. She stated she did it because her parents told her they had a lot of bills to pay. She stated the men always called her [J] and that she lost count of how many men she had been paid to have sexual intercourse with her - she thought it would be more than 10 and probably more than 20. She stated that she stopped doing for a while after she got very angry at her mother and that her mother had asked her to do it again after she had stopped."
[71]
[30] It was accepted by Mr Copley that the facts were not set out in a straightforward way in the sentencing proceedings. However, it was submitted, the prosecution's position could be ascertained by reference to the summaries of facts of the charged offences and the offences involving D, read in conjunction with the Crown Prosecutor's oral submissions to the sentencing judge. It was submitted that this process led to the conclusion that the Crown Prosecutor had stated that the maintaining included:
[72]
(a) the prostitution of the child;
(b) the complainant's evidence summarised in the Summary of Facts;
(c) her activities engaged in with three individual clients; and
(d) the evidence contained in the diary that showed 28 bookings for her.
[73]
**[31] It was submitted that those particulars applied to each of the accused. In addition, in relation to count 1, which concerned only TR, the maintaining also encompassed her part in the complainant's activities with the client D.
[74]
[32] Mr Copley also conceded in his oral submissions that the maintaining counts could not properly be based on the proposition that the respondents were liable as parties to offences of maintaining committed by clients, except perhaps in the case of D, since there was a lack of evidence that the clients other than D had carried on, kept up or continued an unlawful sexual relationship with the girl in the sense required by s 229B. The proper basis, he submitted, was the respondents repeatedly unlawfully procured the girl to engage in indecent acts with numerous men. He conceded it was a "curious" application of s 229B. That concession is supported by the failure to find any very similar application of s 229B at appellate level, despite the section having been in the Code for almost twenty years.
[75]
[33] Because of the unusual nature of the case some brief reference to the legislative history of s 229B is appropriate. The part of the second reading speech for the Bill which inserted s 229B (the Criminal Code, Evidence Act and Other Acts Amendment Bill) is in Hansard Vol 311 at p 3256. The creation of the offence was to address community concern that numerous cases had arisen where it was abundantly clear that a consistent course of sexual interference has been undertaken in respect of a particular child who, although unable to recall with the precision of an adult, all the surrounding circumstances of the events, nonetheless could give clear, cogent and compelling evidence as to the identity of the perpetrator and the acts that were committed upon him or her on many occasions. It was conceded that the lack of definition of the provision may cause concerns to some people, and that it was a novel drafting approach.
[76]
[34] Two observations may be made in passing. The first is that it is fairly plain that the concern being addressed was the kind of situation where an adult preyed sexually on a child and committed sexual acts for personal gratification on the child in a repetitive way. That is not to say that cases that do not fall precisely into that category may not be within the meaning of the provision, but it is a feature that makes a case like the present one difficult to fit within the considerable and wide spectrum of cases at appellate level relating to the offence, and even more so, into the limited spectrum of cases which have some element in common with this case. The second is that the requirements of proof of the offence in the original section have been significantly reduced by subsequent amendments.
[77]
[35] R v SAG (2004) 147 A Crim R 301; [2004] QCA 286 which is a case within the mainstream of offending against s 229B and is therefore different from the present kind of case, contains a list of significant matters, no doubt not exhaustive, the presence of which substantially increases the sentence for the offence of maintaining an unlawful sexual relationship. The conduct in R v SAG was described as:**
[78]
"Calculated and long lasting manipulation of ... [a family of girls in which he was the stepfather] in order to satisfy [his] own sexual gratification."
[79]
**[36] Nevertheless it is helpful to classify the present case with reference to some of the more relevant features referred to in R v SAG. The conduct began at the age of 12, an older age than is frequently the case. The child appeared to be well physically developed for her age. It involved only one child. The period of the maintaining of the unlawful sexual relationship was quite short by comparison with what is commonly the case. It was not suggested that the girl had been induced to engage in the conduct by physical violence on her. However, there is evidence that she was overwhelmed by a sense of obligation instilled in her to assist in alleviating what was said to be family financial stress. And her reluctance to engage in acts of prostitution with D was overborne by TR's directions to her.
[80]
[37] The procuring of the girl to perform indecent acts for the purpose of photographing her occurred on a limited number of occasions. Abhorrent as it is, it did not involve the typical kind of or motive for sexual interference generally, and almost always, found in offences of maintaining. The sentencing judge's findings to that effect and that the acts appeared to be contrived were not disputed by the Attorney-General's counsel. The evidence does not establish that physical violence was used to get her to engage in the photography sessions.
[81]
[38] Taken as a whole, that collection of facts would not place the offences of maintaining towards the worst end of the range of maintaining cases, had they stood alone. The most serious aspect of the matter is to be found in the circumstances of the prostitution, in which TR played a more direct role than FV, by being present when acts of prostitution were engaged in and, on occasions, giving directions to the girl who was reluctant to engage in acts with D. It is also a reasonable inference from other material, especially in the diary, that the girl's demeanour during other acts performed upon her by other clients was consistent with reluctant participation.
[82]
[39] By contrast with TR, FV did not involve himself in the day to day operation of the prostitution business, but was aware that it involved the girl, and approved of it. However, he was not charged with any offence dependant upon proof that the girl was unwilling to engage in sexual acts with clients. Nor was he charged in respect of all of the acts performed when photographs were taken.
[83]
[40] A consequence of a plea of guilty being entered by each respondent to an offence of maintaining was that it was not analytically questioned when the outer limits of that offence are reached in a case where the maintaining does not involve acts done by the offender himself or herself. It is orthodox enough as a basis of liability that both respondents were involved as parties in respect of the indecent acts performed on and by the girl when the photographs were taken in setting up the advertising phase of the enterprise. It is also clear from what has been said above that TR had a more direct involvement in the acts of prostitution of the girl than FV did. Abhorrent as FV's conduct is, there is minimal evidence of his involvement by way of procuring the girl to perform specific indecent acts with individual clients, or of encouraging, counselling or procuring D to maintain an unlawful sexual relationship with her. But he knew that she was being prostituted.
[84]
[41] In my view, it cannot be established that the sentence of seven years imprisonment for FV's offending against s 229B, depraved as it was, is manifestly inadequate for his level of offending against that section. The greater emphasis placed on the prostitution related offences by the sentencing judge was in my view correct. With regard to TR, the sentence of six years imprisonment appears to me to be manifestly inadequate. It is also inconsistent with the sentencing judge's observation that, for that offence, FV was entitled to a significant discrepancy in the sentence between him and TR. There is no challenge to that observation in the Attorney-General's submissions.
[85]
[42] For that reason, a differentiation had to be made in his favour between his case and TR's. This was referred to in the sentencing remarks. Further evidence that the sentencing judge considered the level of TR's offending more serious is to be found in the passage of the sentencing remarks where there was the misapprehension, corrected upon an intervention by counsel, with regard to TR being charged on a separate count as a party to D's maintaining offence. But while FV received a shorter sentence for the prostitution related offences he received one year longer for the offence of maintaining. It may be observed in passing that, to the extent that TR's offending against s 229B may have had two aspects, of procuring the girl to perform indecent acts and as a party to any offence of maintaining by D, there was probably a sufficient basis of joinder under s 567; the form of the indictment was acquiesced in, and no miscarriage of justice could have occurred in any event having regard to the plea of guilty.
[86]
[43] There were several authorities referred to in submissions. R v P [1998] QCA 402 involved a plea of guilty to similar counts to those in counts 3 and 4 in the present indictment and conviction after trial of three counts of rape and one of anal intercourse. The girl was 14 or 15 when P (who had been her stepfather for most of her life) introduced her to prostitution. He was involved in organising her activities in that regard and sometimes drove her to outcalls. The rapes occurred during the period when she was a prostitute. The period over which the prostitution occurred was at least one year. There was also physical intimidation and actual assaults by him during that period. He was originally sentenced to eight years for the prostitution related offences and 10 years cumulative for the rapes. The 18 years was said to reflect the totality of his criminal conduct. On appeal the cumulative element of the sentence was removed and a practical reduction was made by increasing the rape sentences to
[87]
14 years concurrent. That case sheds little light on the resolution of this appeal.
[88]
[44] In R v B and P [1999] 1 Qd R 296; [1998] QCA 45 the girl was 11 years of age. It was not a case where there was any count of maintaining a sexual relationship. The appellants were charged with procuring the child to engage in carnal knowledge and as parties to acts of rape and attempted anal intercourse in respect of which they were tried on the same indictment with the person, S, alleged to have committed those acts. The matter went to trial.
[89]
[45] Its affinity with the present matter is that the allegation was that, on the day in question, the female appellant P encouraged or directed the complainant to go to S's place for the purpose of his having non-consensual sex with her, and in the case of B, he actually took her there for that purpose. Beyond that, the case is of little assistance. A head sentence of 12 years was imposed to reflect the criminality involved in the offending. After S was successful in an appeal against a rape conviction and had his sentence reduced to nine years imprisonment, the 12 year sentence was allowed to stand but a non-parole period of four and a half years was added for reasons of parity with S.
[90]
[46] Adapting de Jersey CJ's theme in dismissing an argument that 12 years was manifestly excessive, it was an aggravating factor in the present case that the respondents had displayed their depravity in a calculated way by placing their vulnerable 12 year old daughter within the sexual clutches of grossly disreputable men for their own profit. That was properly taken into account, and given full effect in both this case and R v B and P, in sentencing for the prostitution offences and the procuring charge respectively.
[91]
[47] The next matter, R v B and P [2000] QCA 379, concerns the same offenders as in the appeal just discussed. They were subsequently charged, on the basis of further information, with maintaining an unlawful sexual relationship with their three children, females of nine and 10 to 11 years and a male of 15 to 16 years. The conduct founding the charges was described by Thomas JA as seven occasions of bizarre conduct undoubtedly aimed at training the children to become prostitutes. The children were instructed to perform a variety of sexual acts on one another in various permutations. P performed oral sex on B in their presence to demonstrate how it was done and also simulated sexual intercourse with the nine year old girl, inserting her fingers on two occasions and injuring her. The conduct occurred over an eight month period and appears to have ended about the time when S committed the offences which formed the subject matter of the trial previously mentioned.
[92]
[48] The issue identified by Thomas JA was whether any additional punishment ought to be imposed. As Thomas JA put it, it was important to ensure that the applicant was not punished twice by reason of the same moral revulsion. The outcome depended on whether the acts were to be regarded as merely preparatory to S's offending. It was held that additional punishment was appropriate to reflect that the conduct brought to light in the subsequent matter involved a course of conduct for what might be called training exercises in the corruption of three children, whereas only some of this was involved in S's offending. The activities were not merely incidental to the prostitution of the child involved with S. They significantly extended the applicant's criminality.
[93]
[49] Because of the sequential nature of the two R v B and P matters, it was also an issue as to whether, if both had been dealt with at the same time, the sentence would have differed from those imposed at the first trial. In the result, two years cumulative was imposed in respect of P and one and a half years cumulative in the case of B on the basis that B's involvement in the maintaining was less than P's. Since it involved cumulative sentences it sheds little light on what the appropriate outcome of the present case should be.
[94]
[50] In the present case there is little other discernable purpose in what was done than advancement of the prostitution business, except, perhaps, to the extent that the website may have been visited for prurient reasons other than prostitution. Nor does the issue of having to sentence sequentially arise in the way it did in R v B and P.
[95]
[51] The sentencing contains an error in principle in the sentencing process because FV received a longer sentence than TR for maintaining when the differential should have been the other way. What therefore has to be determined is what is an appropriate sentence for a case where there are the sort of features of procuring a girl of 12, (who had grown up in a home where prostitution was a source of income), to commit indecent acts which were photographed and used to promote the prostitution business on the internet. Then in the course of the business, TR procured the girl, in circumstances where she was, at least at times, a reluctant participant, to engage in indecent acts, including penetrative sex acts of various kinds with a variety of men over a period of several months.
[96]
[52] As against that, there is no evidence that there was actual violence used on the girl at any time by either TR or FV. The offending began when the girl was older than is often the case in maintaining cases, although of an age where it may be assumed she was not sufficiently emotionally mature to make properly informed decisions of the kind necessarily involved in what she was expected to do. The conduct lasted for a shorter period than is often the case. There was also a finding, not challenged, that there was no element of personal sexual gratification on the part of either TR or FV. The sentencing judge proceeded on the basis that there was force in the submission that the photographs appear somewhat contrived and were taken not for sexual gratification of TR or FV but as a marketing ploy for the business. Also in the respondent TR's favour is her plea of guilty, to which the sentencing judge attributed special benefit in the circumstances of the case. She was also a person with a particularly low IQ, and was said to have health problems. But these factors are not sufficient to account for a lower sentence than FV's being imposed on her.
[97]
[53] The sentence imposed was constructed on the basis of reflecting the overall criminality of the offending, with the prostitution related offences being the worst. The methodology used by the sentencing judge, is in my view, a proper one in the circumstances of this case, which involves a very unusual and perhaps strained application of s 229B. Contrary to the submission made, she had a proper appreciation of the relative roles of the respondents and the relative seriousness of the offences.
[98]
[54] For reasons already given the sentence imposed on TR for the offence must be set aside and TR must be re-sentenced. Taking into account the matters that would tend to mitigate the sentence and those which would tend to aggravate it because of the appalling nature of TR's conduct a sentence of nine years imprisonment is one that balances them appropriately. It is also consistent with the principles involved in Attorney-General's appeals (R v Melano, ex parte Attorney-General [1994] QCA 523; [1995] 2 Qd R 186). Counsel for the Attorney General submitted that, if TR's sentence remained under the 10 years threshold for a serious violent offence declaration, a declaration should nevertheless be made in the exercise of the discretion to do so. The criteria discussed in R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365 and
[99]
R v Eveleigh [2003] 1 Qd R 398; [2002] QCA 219 lead to the conclusion that this is not a case in which a serious violent offence declaration should be made.
[100]
[55] Effectively, TR has a recommendation for release after having served four years, when the pre-sentence custody is taken into account. That was fixed having regard to the sentences imposed on counts 3 and 4 and a recommendation that achieves the same outcome in that regard remains appropriate and should be made.
[101]
1. That in relation to TR, the Attorney-General's appeal is allowed. The sentence of six years imprisonment on count 1 is set aside and in lieu thereof a sentence of nine years imprisonment is imposed.
[102]
2. That 18 March 2010 be fixed as the date upon which she will be eligible for parole.
[103]
3. In relation to FV the Attorney-General's appeal is dismissed.
[104]
4. In all other respects the sentences imposed on each respondent in the District Court Southport on 18 January 2008 are confirmed.