SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: R v BCA [2011] QCA 278 PARTIES: R v BCA (applicant) FILE NO/S: CA No 325 of 2010 DC No 202 of 2006 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Sentence Application District Court at Brisbane DELIVERED ON: 11 October 2011 DELIVERED AT: Brisbane HEARING DATE: 21 June 2011 JUDGES: ORDERS: Fraser and White JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made 1. Application for leave to appeal against sentence granted. 2. Appeal against sentence allowed. 3. Set aside the sentences on counts 1 and counts 5 to 12 in the indictment and in substitution for those sentences impose the following sentences: (a) On count 1, sentence the applicant to 10 years imprisonment. (b) On each of counts 6, 8, 10 and 12, sentence the applicant to six years imprisonment. (c) On each of counts 5, 7, 9 and 11, sentence the applicant to three years imprisonment. (d) Each sentence is to be served concurrently with each other sentence. CATCHWORDS: CRIMINAL LAW SENTENCE SENTENCING PROCEDURE FACTUAL BASIS FOR SENTENCE GENERALLY where the applicant was convicted after a trial of one count of maintaining an unlawful sexual relationship with a child with aggravation, four counts of indecent treatment of a child with aggravation and four counts of sodomy with aggravation where the applicant was sentenced to 10 years imprisonment on all counts to be served concurrently where the sentencing judge did not make formal findings as to the duration of the sexual relationship that was maintained or the nature and frequency of the unlawful acts involved whether the sentencing proceeding

2 2 COUNSEL: SOLICITORS: miscarried and, if so, what sentence ought to be imposed upon the applicant in exercising the sentencing discretion afresh Evidence Act 1977 (Qld), s 132C Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, applied KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54, cited R v BAO [2004] QCA 445, considered R v BBH [2007] QCA 348, considered R v C; ex parte A-G (Qld) [2003] QCA 134, considered R v D Arcy (2001) 122 A Crim R 268; [2001] QCA 325, cited R v H [2001] QCA 167, cited R v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439, cited R v Isaacs (1997) 41 NSWLR 374, distinguished R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited R v O Shea [2011] QCA 18, cited R v P; ex parte A-G [2001] QCA 188, cited R v PAK [2010] QCA 187, distinguished R v SAR [2005] QCA 426, considered R v Upson [2011] QCA 196, cited R v W [1998] QCA 343, distinguished R v Walden [2010] QCA 13, distinguished R v Young; Ex parte Attorney-General (Qld) (2002) 135 A Crim R 253; [2002] QCA 474, considered A Boe, with A I O Brien, for the applicant M J Copley SC for the respondent Boe Williams Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent [1] FRASER JA: The applicant was charged with 12 offences against his daughter. After a trial in the District Court, he was convicted on 17 May 2007 of nine counts: one count of maintaining an unlawful sexual relationship with a child under 16 years with circumstances of aggravation (count 1); four counts of indecent treatment of a child under the age of 16 years with circumstances of aggravation (counts 5, 7, 9 and 11); and four counts of sodomy of a person under the age of 18 years with circumstances of aggravation (counts 6, 8, 10 and 12). The applicant was acquitted of three further indecent treatment charges (counts 2, 3 and 4). On 18 May 2007 he was sentenced to concurrent terms of 10 years imprisonment for each of the offences of which he was found guilty. [2] An appeal against conviction was dismissed on 19 October The applicant subsequently applied for an extension of time within which to apply for leave to appeal against sentence. The necessary extension was granted on 6 April R v BBH [2007] QCA 348. R v BBZ [2011] QCA 62.

3 3 [3] The applicant contended that the sentences were manifestly excessive and that the sentence proceeding miscarried because: The factual basis for the conviction on ground 1 was never identified, an exercise which was particularly necessary given the acquittals on counts 2, 3 and No proper regard was given to the objects of the Penalties and Sentences Act 1992 (Qld) ( the PSA ), as enunciated in subsection 9(1); No regard was had to the factors identified in subsections 9(2), 9(5) and 9(6) of the PSA No regard was had to the effect of the operation of subsection 161A(a)(ii) of the PSA and s 182 of the Corrective Services Act 2006, in circumstances where the applicable range dictated that this was particularly significant. The charges and the evidence at the trial [4] In order to put the grounds of appeal into context it is useful first to discuss the charges and the evidence at the trial. [5] The complainant was born in July Count 1 charged the applicant with the offence in s 229B of the Criminal Code 1899 (Qld) of maintaining an unlawful relationship of a sexual nature with the complainant, with the circumstances of aggravation that during the course of the relationship the applicant unlawfully sodomised and indecently dealt with the complainant, a child under the age of 16 years who was the applicant s lineal descendant and under his care. The alleged period of the relationship was between 3 July 1989 and March 1999, but the prosecution narrowed the case by particulars which identified the termination of the period as February [6] The effect of the complainant s evidence was that counts 2 to 12 were specific incidents which she could differentiate from numerous other occasions on which the applicant sexually abused her from July 1987 (before she was four years old) until February 1999 (when she was 15 years old). [7] Count 2 alleged indecent treatment on one occasion between July 1987 and July (That was before the commencement of the period charged in count 1, which coincided with the commencement of s 229B.) According to the complainant, when she was younger than four she climbed up on a waterbed in her parents bedroom in the shed where they lived at that time. The appellant penetrated her digitally and said words to the effect of when you can fit in two fingers let me know. On the complainant s evidence, the applicant regularly abused her from that time. The complainant gave evidence that the applicant abused her frequently: [s]ometimes every couple of days, sometimes every couple of weeks or months. He used to put his penis up my arse and his fingers up my vagina. She said that there was no specific pattern to the abuse: [i]t was just random. This went on until she was 15 years of age. She said that there were so many incidents that they all seemed to blur together.

4 4 [8] The complainant s evidence-in-chief did not clearly indicate the first occasion on which the applicant sodomised her, but in cross-examination the complainant said that this occurred before she turned seven (in July 1990). She gave evidence that her anal muscles became loose as a result of this abuse and she experienced difficulty in keeping her faeces under control. A doctor gave evidence in the Crown case that the faecal incontinence the complainant described could be explained by causes which included the anal penetration of which she gave evidence. [9] Count 3 alleged that between July 1989 and July 1991 the applicant procured the complainant to commit an indecent act. The complainant said that when she was aged six or seven in grade 1 or 2 at school, she was outside the kitchen and, with the applicant s encouragement, his dog licked her vagina. [10] The complainant s mother and the applicant divorced in For about a year and a half after her parents separated in 1995, the complainant lived at another address with her mother, but after Family Court proceedings she returned with her two brothers to live with the applicant. The complainant gave evidence that the applicant s abuse happened both before and after her parents divorced. She said that: [i]t continued after the divorce, [t]he sort of stuff that he would do didn t change, and he would still do the same things. [11] The complainant said that when she was young some people came to their house and interviewed her and her brothers. Other evidence indicated that this occurred in 1992, and that the people were officers of the Family Services Department. The complainant said that the applicant told her not to say anything to these officers about what had happened between them. The complainant did not make any complaint to the officers of the Family Services Department. Nor did she make a complaint at a later time when she was interviewed by a counsellor as part of the Family Court proceedings. [12] Count 4 alleged an incident of indecent treatment between July 1997 and July The complainant s evidence was that she was 14 or 15 years old at the time. The complainant said that she fell asleep on the bed in the applicant s bedroom and, when she awoke, he was touching her vagina and the vagina of his then girlfriend. [13] Counts 5 to 12 charged incidents of indecent treatment of a child under 16 years who was under his care and sodomy of a person under 18 years, with the circumstance of aggravation that the complainant was the applicant s lineal descendant. The complainant s evidence was that these events occurred on four separate occasions towards the end of the period of offending. The complainant gave evidence that she had a boyfriend, B, who was just about to leave for the army. She said that she kept fighting and telling the applicant to stop, and eventually I stood my ground and I said, That s it. No more. The applicant kept trying to ask why he could not be her boyfriend and why he could not continue. The complainant gave evidence that B joined the army and was about to leave in February 1999 (although it was formally admitted that B joined the army in March 1999 and was posted west of Sydney in July 1999). The complainant subsequently went to live with her mother for about two months before moving to live somewhere else. [14] The charged period in counts 5 and 6 was between 4 July 1997 and 6 July 1999, but the complainant s evidence narrowed the period to between the end of 1998 and February The complainant gave evidence that, at the end of 1998, the

5 5 applicant acquired a television set for his bedroom. On an occasion when she and the applicant were sitting on the bed, he put a pornographic video on the television and, while they were watching the video, he began rubbing her thighs and touching her vagina. He then took off her pants, sodomised her, and put his fingers in her vagina. Before inserting his penis into her anus, he used a lubricant which he kept beside the bed. [15] The applicant pointed out that the prosecution supplied particulars of counts 5 and 6 which described the relevant period as being date unknown btw 4/7/97 & 6/7/98 and that the end date of 6 July 1999 in the indictment seemed inconsistent with the end date for the maintaining offence charged in count 1 as 31 March It is unnecessary to discuss the competing arguments on this topic because, as was acknowledged in the further corrigendum written submissions for the applicant, the proper approach is to rely upon the complainant s evidence. On that evidence counts 5 and 6 were committed on one occasion between the end of 1998 and February 1999 when the complainant was 15 years old. [16] The charged period in counts 7 to 12 was between 1 January and 31 March 1999, but the complainant s evidence narrowed the period to the last three days before the offending ceased in February In relation to counts 7 and 8, the complainant said that the applicant sodomised her and put his fingers into her vagina. In relation to counts 9 and 10, the complainant said that on the following night the applicant sodomised her, put his fingers in her vagina, and licked her vagina. She kneed the applicant in the head in the process of trying to get away, but he held her legs and kept going. In relation to counts 11 and 12, the complainant said that on the following night she was in the applicant s bedroom when he sodomised her and put his fingers in her vagina. She kept trying to tell him to stop. She said to him: Don t. Please stop. He replied: What? Don t stop? You don t want me to stop? That was the last occasion of the applicant s offending. [17] In cross-examination, defence counsel challenged the reliability of the complainant s evidence on various bases. In relation to each occasion of which the complainant gave evidence defence counsel put to the complainant that the offending she described had not occurred. The complainant adhered to her evidence. [18] The complainant s younger brother, W, gave evidence that after their parents had separated (which occurred in 1995), while they were on holidays with the applicant on a rural property owned by the applicant s uncle, W returned to the camp site where the complainant and the applicant had been left on their own to find his sister bent over as if touching her toes, and undressed from the waist down. The applicant s hand was on her waist and his face was close to her bottom. In crossexamination, W agreed that what he saw was consistent with the applicant looking for an ant bite or bee sting. [19] The complainant s mother gave evidence that she observed the applicant stroking the complainant s upper thigh when the complainant was a young child. The complainant s mother also said that, on some mornings, the applicant would call the children into the bedroom while he was having sexual intercourse with her from behind and say to the children: [g]ive Mum a cuddle. The applicant also told her that sometimes he would call the complainant in to give him a cuddle while he was in bed with the sheet over him and that he would have an erection while she was

6 6 lying on top of him. The complainant s mother identified a letter she received from the complainant recounting what happened with dad and stating that the applicant used to fuck me up the arse and stick his fingers in my vagina. No mention was made of the incidents the subject of counts 3 and 4, and the complainant gave a somewhat different version of the incident charged in count 2. [20] A former boyfriend of the complainant, A, gave evidence that he received a letter from the complainant when she was in grade 12 at school (which was in 2000). In that letter, the complainant spoke of her pain and said that she was: weak mentally and he had done it from such a young age. I did not know how to stop, I always cried after he did it and I kept going back because it felt good, I didn t know how to stop it, I wasn t strong enough 12 yrs I put up with it, crying for the last 3 or 5 yrs afterwards, I wanted it to stop but I wasn t strong enough to stop it, I just wasn t strong enough. I so badly wanted to put a stop to it but because my mind enjoyed it and it wasn t strong enough I couldn t stop it [21] A doctor gave evidence that she first saw the complainant on 13 March The doctor noted the complainant s abnormal pap smear. The doctor subsequently diagnosed the complainant as suffering from depression. The doctor gave evidence that the complainant sent the doctor an undated and unsigned letter in which she said that, from an early age, her father used to take advantage of her sexually and that she could not stop this as she was too scared of him, and this continued until she was 15 years old. [22] The applicant gave and called evidence. He denied in detail all of the complainant s allegations of sexual misconduct and he attributed his falling out with the complainant to his reservations about her having started a relationship with B at a time when she was not yet 14 years of age. The applicant denied that there had been any incidents of the kind described by his former wife. He denied that there was any such incident as was described by his son W, and he agreed in crossexamination that if the incident did happen it could not be explained by his having been searching for an ant bite or bee sting. The applicant s former girlfriend gave evidence (in relation to count 4) that there was no occasion when she was in bed with the applicant and the complainant and the applicant touched both of them in the vaginal area at the same time. She also gave evidence that she did not notice anything in the complainant s conduct that indicated a problem with the applicant. Ground 1.1.1: The factual basis for the maintaining offence [23] In sentencing the applicant, the sentencing judge (who was the trial judge) remarked: At the end of the day the jury have convicted you of a number of offences relating to when the child was 14 or 15 years of age. They have found you not guilty of the offences which substantively related to when she was a much younger child, but they have convicted you of the maintaining. The sentencing remarks do not contain any other reference to the maintaining offence which bears upon this ground of appeal.

7 7 [24] The applicant submitted that the acquittals on counts 3 and 4 left the duration of the maintaining charge uncertain as to whether it was the entire period charged, the period 4 July 1997 to 6 July 1999, or some other period, such as from when the complainant was aged about seven to the end of the charged periods. The applicant submitted that the sentencing judge did not make the findings which were necessary to resolve that uncertainty and nor did her Honour make the necessary findings about the nature and frequency of the unlawful acts committed by the applicant. [25] The respondent submitted that the sentencing remarks indicated that the sentencing judge sentenced the applicant on the basis that, in addition to committing the specific offences in counts 5 to 12, he maintained the unlawful sexual relationship for about two years by indecently dealing with and sodomising the complainant on numerous occasions when she was aged 14 and 15. [26] In my respectful opinion, on a fair reading of the sentencing remarks in the context in which they were made, the sentencing judge did not make any finding about the duration of the maintaining offence or the nature or frequency of the unlawful acts which constituted that relationship. [27] The actus reus (guilty act) of the offence in s 229B of the Criminal Code, in the form it was in during the period of the maintaining offence charged against the applicant, was the doing by an adult of an act which constituted an offence of a sexual nature in relation to the child concerned on three or more occasions. 3 The trial judge gave conventional directions to the jury that for the prosecution to prove the maintaining charge it must prove beyond reasonable doubt that the accused did an act defined as an offence of a sexual nature in relation to the child on three or more occasions. Her Honour directed that the prosecution could prove acts of a sexual nature which were not charged on the indictment, that all members of the jury must agree as to the same three acts, and if they were not so satisfied the charge had not been made out. Furthermore, the trial judge directed the jury that it was permissible to charge a span of dates, and that if the jury had a doubt about the specific offences charged in the indictment they should only convict the accused on the basis of the evidence of the uncharged acts if, after carefully scrutinising the evidence of the child, they were satisfied beyond reasonable doubt that the accused did those acts during the period alleged in the indictment. [28] It must be assumed that the jury followed those directions. Having regard also to the acquittals on counts 2 to 4, the verdicts of guilty did not determine the duration of the unlawful relationship or the nature and frequency of the relevant unlawful acts. In the circumstances of this case, those matters necessarily had a significant bearing upon the applicant s culpability for the maintaining offence. It was therefore the duty of the sentencing judge to resolve the uncertainty about those matters by making findings of fact which were consistent with the verdicts, to the extent that the evidence permitted such findings. 4 Neither the prosecutor nor defence counsel asked the sentencing judge to make any particular finding about those matters, but it was nevertheless her Honour s duty to do so. [29] In my respectful opinion, the sentencing judge did not fulfil that duty. Her Honour s remarks conveyed no more than that the jury had convicted the applicant of specific offences charged when the complainant was 14 or 15 years old, found 3 4 KBT v The Queen (1997) 191 CLR 417 at 422. Cheung v The Queen (2001) 209 CLR 1 at 9 [4] - 14 [17].

8 8 him not guilty of specific offences which related to when the complainant was much younger, and convicted him of the maintaining charge. The sentencing remarks did not express or imply any finding about the period of the maintaining offence or the nature or frequency of the applicant s unlawful acts. [30] Reference to the sentence hearing does not resolve the present difficulty. The prosecutor submitted that the maximum penalty for the maintaining offence was life imprisonment. Defence counsel submitted that he could not find authority for a maintaining for sodomies and submitted that the range was eight to 10 years imprisonment. Defence counsel accepted that there were more than just one or two offences of unlawful sodomy, but he made no concession about the period of the maintaining offence or the nature or frequency of the applicant s unlawful acts. The following exchange occurred: HER HONOUR: -----I mean I I ve sat on a lot of maintaining cases. What is the aggravating feature here is it the maintainings over a long period, Count 5 of which he was found guilty, was a matter that she was about 14 or 15. She s given evidence it happened over a long time, and the verdict doesn t allow me to say how long it extended over, it may just have been that her evidence on the earlier incidents was too difficult. MR NOLAN: Yes, and that she was under care is what causes the difficulty. HER HONOUR: Well, the it s the father, and it s under care. I think 10 years----- MR NOLAN: Father, under care. HER HONOUR: -----is about right. [31] Her Honour s reference to the maintaining offence persisting over a long period was necessarily tentative since it arose in the course of argument. The ranges of penalties which counsel and the sentencing judge mentioned in the course of the hearing, and the sentence which her Honour imposed, suggest that each had in mind that the duration of the maintaining exceeded the period of about two and a half months during which counts 5 to 12 were committed. However, it would be wrong in principle to regard that as a substitute for findings of fact by the sentencing judge. [32] The absence of the necessary findings of fact by the sentencing judge renders it impossible for the parties to know the basis upon which the sentence was imposed and for the Court to fulfil its duty on appeal of deciding whether some other sentence, whether more or less severe, is warranted in law and should have been passed. 5 The sentence proceeding therefore miscarried in a fundamental way. The sentencing discretion must be exercised afresh. [33] Because I have concluded that the application must succeed on this ground, it is not necessary to consider the other grounds of appeal. The appropriate sentence [34] The applicant and the respondent submitted that the Court could and should make the necessary findings of fact. That is an exceptional course. The Court of Appeal 5 Criminal Code, s 668E(3).

9 9 is not a trial court, and a trial judge who passes sentence ordinarily has the significant advantage of seeing and hearing the witnesses give evidence as the trial unfolded. In this case, however, the trial was held more than four years ago and it might reasonably be concluded that the trial judge s usual advantage has been lost. In the very unusual circumstances of this case, the Court should accept the parties submissions and take the exceptional course of making the necessary findings of fact. [35] The applicant acknowledged that a sentencing judge is not required to sentence an offender upon the basis of the facts which are most favourable to the offender. However the applicant contended that it followed from the requirement to sentence upon facts which are consistent with the verdict, and the nature of the maintaining offence as a descriptive offence like trafficking, that the standard of proof of facts about the duration and conduct in the offence approaches the criminal standard of beyond reasonable doubt. For that submission the applicant cited R v Isaacs, 6 but it concerned the law in New South Wales that findings of fact made in sentencing an offender must be arrived at beyond reasonable doubt. Section 132C(3) of the Evidence Act 1977 (Qld), which applies to any sentencing procedure in a criminal proceeding in Queensland, provides that if an allegation of fact is not admitted or is challenged, the sentencing judge or magistrate may act on the allegation if satisfied on the balance of probabilities that the allegation is true. Section 132C(4) provides that the required degree of satisfaction varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true. In this case, having regard to the seriousness of the maintaining offence, the Court should only act on an allegation adverse to the applicant if the Court has a high degree of satisfaction on the balance of probabilities that the fact is true. That is the test I will apply. [36] I do not accept the applicant s submission that, having regard to the jury s acquittals on counts 2 to 4 and the evidence about counts 5 to 12, the Court should find that the period of the maintaining offence was as short as two and a half months, from about December 1998 until February 1999, when the complainant was 15 years old. That submission overlooks the strength of the Crown case that the applicant maintained the unlawful relationship for a far longer period from when the complainant was much younger. [37] The jury must have accepted the complainant s evidence that the applicant simultaneously sodomised and indecently dealt with her when she was 15 years old on the four occasions charged in counts 5 to 12. The unmistakeable effect of the complainant s evidence was that those counts were merely specific instances of numerous occasions upon which the applicant committed similar acts over many years from when she was about seven years old until she was 15 years old. What the complainant said in evidence about the four occasions the subject of counts 5 to 12 would be wholly unpersuasive if the applicant had not accustomed her to his perverted conduct from an earlier age. [38] Bearing in mind also the trial judge s directions mentioned in [27] of these reasons, it seems inconceivable that the jury would have convicted the applicant of counts 5 to 12 unless they accepted the complainant s evidence that the applicant had committed similar offences over many years. The complainant s evidence that he 6 (1997) 41 NSWLR 374 at 378.

10 10 did so seems very persuasive, even taking into account the disadvantage that this Court did not see and hear the evidence as it unfolded at the trial. The complainant s evidence on that topic was consistent, unshaken in an extensive cross-examination, consistent with her letters to her boyfriend and doctor, and consistent with the doctor s evidence about likely causes for faecal incontinence. The Crown case also derived some support from the complainant s mother s evidence, which supported a conclusion that the applicant harboured and gave effect to an illicit sexual passion for the complainant from when she was very young. Similarly, the Crown case derived some support from the evidence of W (who appeared to be well disposed towards the applicant) that he saw the applicant in a compromising position with the complainant on the camping trip (which, he accepted, must have been before the applicant and his wife divorced in 1996). [39] The acquittals on counts 2 and 3, which were alleged to have been committed in a period when the complainant was between about four and seven years old, are not inconsistent with a finding that the applicant was guilty of the maintaining offence for the whole period between July 1989 and February Nor does the acquittal on count 4 require the conclusion that the maintaining offence did not span such a long period, even though the complainant s evidence was that she was 14 or 15 years old at the time. In dismissing the earlier appeal against conviction, Keane JA explained why the jury might have held a reasonable doubt about the applicant s guilt on counts 2, 3 and 4 while at the same time being satisfied that the applicant was guilty of the remaining counts: 7 There were, in truth, significant differences in the quality of the evidence which supported the verdicts of guilty compared with the evidence relating to the counts on which the appellant was acquitted. In relation to counts 2 and 3, the jury may have been concerned that the incidents in question were alleged to have occurred long ago when the complainant was an infant. More importantly perhaps, the jury may have been concerned that, in the complainant s letter to her mother in 2004, she made no mention of the digital penetration alleged in count 2 or of the incidents in counts 3 and 4. Further, the complainant s account of the incident alleged in count 4 was denied by [the applicant s then girlfriend]. These are all reasons why a rational jury may have been prepared to entertain a doubt as to the appellant s guilt on these counts, while at the same time being satisfied beyond reasonable doubt of the reliability of the complainant s evidence in relation to the balance of the charges against the appellant. [40] It is also relevant in the present context that the nature of the alleged offences of which the jury acquitted the applicant distinguished them from the offences involving simultaneous sodomy and indecent dealing (including digital penetration) in counts 5 to 12 of which the applicant was convicted. [41] On the complainant s evidence, the applicant commenced his acts of sodomy from before the complainant was seven years old. The evidence allows of the conclusion, and it seems very probable, that the applicant commenced the unlawful relationship by committing less serious indecent acts when the complainant was much younger. However, bearing in mind the acquittals of offences alleged to have been committed 7 R v BBH [2007] QCA 348 at [54].

11 11 when the complainant was younger, and the high degree of satisfaction required for findings adverse to the applicant, I would find that: the applicant commenced the maintaining offence when the complainant was about seven years old (which was in 1990); the offence involved numerous acts of sodomy and simultaneous indecent dealing, including digital penetration of the complainant s vagina; and the applicant persisted in that offence until February 1999 when the complainant was 15 years old. I would determine the appropriate sentence to be imposed for the maintaining offence on the basis of those findings. [42] Bearing in mind the charged circumstances of aggravation, the maximum penalty for the maintaining offence at all times charged in the indictment was life imprisonment. Furthermore, it is clear on the complainant s evidence, and the jury no doubt accepted, that the offence involved three unlawful acts of a sexual nature after the commencement on 1 July 1997 of the provisions concerning serious violent offences in Part 9A of the Penalties and Sentences Act 1992 (Qld). On the authority of decisions of the Court, 8 those provisions apply in relation to the sentence for the maintaining offence even though it also involved acts committed before the commencement of Part 9A. It is therefore necessary to bear in mind that a sentence of or exceeding 10 years imprisonment would carry with it an automatic declaration that the offence is a serious violent offence, 9 and the applicant would not be eligible to apply for parole until he has served 80 per cent of the sentence. 10 [43] There are many features of the applicant s offending which make it especially serious. He committed frequent and numerous acts of sodomy and simultaneous indecent dealings, including digital penetration, over a period of more than eight years. As the complainant s natural father, he thereby committed breaches of trust which are amongst the grossest imaginable. For part of the period during which the applicant offended, he was also effectively the complainant s sole carer and the complainant did not have the consolation of her mother s immediate presence. Having procured the complainant s acquiescence in the unlawful acts by abusing the complainant s trust from when she was as young as seven years old, the applicant persisted in his offending despite the complainant s objections and attempt to escape towards the end of the period of the offence. The applicant s offence produced predictably devastating consequences. The complainant s victim impact statement refers to her physical pain and faecal incontinence during the period of offending, and adverse consequences which continued after the offending, including emotional distress, nightmares, flashbacks, crying, and depression. [44] There is not much that can be said in favour of mitigating the sentence. The applicant cannot claim the mitigation which is due to one who pleads guilty, thereby rendering it unnecessary for the complainant to relive her trauma whilst giving evidence and being cross-examined in a trial. The sentencing judge found that the applicant s offences demonstrated sheer self indulgence and that there was no indication of remorse. Those findings were plainly open to the sentencing judge and, considering the matter afresh, I would make the same findings. [45] At the hearing of the application, the applicant sought leave to rely upon an affidavit by his solicitor which set out some personal circumstances which were submitted to justify mitigation of the sentence. All of this evidence was known to the applicant R v Ianculescu [2000] 2 Qd R 521; R v P; ex parte A-G [2001] QCA 188; R v H [2001] QCA 167. Penalties and Sentences Act 1992 (Qld), s 161A(a)(ii). Corrective Services Act 2006 (Qld), s 182.

12 12 at the sentence hearing but it was not adduced. The Court has a discretionary power to admit new evidence in a sentence appeal if it reveals that there has been a miscarriage of justice, but such evidence is generally not admitted where it was known to the applicant and not adduced at the sentence hearing. 11 The applicant submitted that because the sentencing process miscarried it was necessary for the discretion to be exercised afresh on the basis of the evidence now available. The Court was not referred to authority that supports that submission, but in the circumstances of this case I would admit the evidence. [46] The affidavit by the applicant s solicitor referred to the applicant s fabulous childhood, his schooling until grade 10, his productive employment in various occupations, and his service in the Naval Reserve for about nine years from when he was 16 years of age. Reference was also made to the applicant having started his own engineering business when he was 16 years old whilst he was also otherwise employed, the growth of that business over the years, and other successful business ventures. The applicant married when he was 20 years of age and there were three children of the marriage, including the complainant. Following the divorce the applicant was granted custody of these children and worked on a parenting/family plan with the assistance of others. Reference was made to outings on which the applicant took the children every Sunday, which seems to have been the only day of the week when the applicant was not occupied in his business and other matters. Reference was also made to the applicant s membership of a church choir. [47] This evidence is relevant, at least insofar as it suggests that, other than in relation to the presently relevant offences, the applicant engaged in a law abiding life and socially useful living. 12 That suggests that the applicant might perhaps have better prospects of rehabilitation than otherwise might be thought to be the case, although the absence of any expression of remorse is concerning in that respect. The evidence should be given comparatively little weight in the sentence. It does not bear upon the objectively serious features of the applicant s offending or the absence of important mitigating factors such as a plea of guilty or remorse. [48] In the particular circumstances of this case, I consider that the appropriate sentence for the maintaining offence should be no less severe than the sentence of 10 years imprisonment imposed by the sentencing judge. [49] The respondent referred to R v C; ex parte A-G (Qld) 13 and R v Young; Ex parte Attorney-General (Qld). 14 In R v C the respondent pleaded guilty to maintaining a sexual relationship with a child aged between 13 and 16 years over a two and a half year period. The Court allowed an appeal from a sentence of imprisonment for nine years, with a recommendation for post-prison community based release to be considered after four years, and instead ordered the respondent to be imprisoned for 10 years with a declaration that C had been convicted of a serious violent offence. Like the applicant, C was the child s father and sole carer. The duration of C s offence was less than that of the applicant s offence, and C s offending commenced when his daughter was older, but the nature of the acts was more serious, involving instances of rape. Importantly, when C was interviewed by police he immediately R v Maniadis [1997] 1 Qd R 593 at 597; R v O Shea [2011] QCA 18 at p 4; R v Upson [2011] QCA 196 at [52]. R v D Arcy (2001) 122 A Crim R 268 at 299 [170]. [2003] QCA 134. (2002) 135 A Crim R 253; [2002] QCA 474.

13 13 admitted the sexual intercourse (whilst denying an act of sodomy which he had also committed), and he expressed remorse. C indicated very early that he would plead guilty, he did so, and the matter was processed through the prosecution and court system in record time. 15 The Chief Justice, with whose reasons Jerrard JA and White J agreed, suggested that for roughly comparable offending and after allowing for a plea of guilty a range generally commencing at about the level of 10 years imprisonment would apply, although his Honour went on to observe that because the circumstances of these offences exhibited infinite variation, one should not be rigidly tied to ranges. 16 [50] In R v Young, the Court allowed an appeal against sentences of six and a half years imprisonment for a maintaining offence and rape offences and instead ordered the respondent to be imprisoned for 10 years. That offender was unrelated to the complainant, and the maintaining offence included rapes on a weekly basis for about nine months when the complainant was 12 years old. The respondent had no remorse and little insight into his conduct. The offending was more severe insofar as it included rapes and the respondent intimidated the complainant into submission, but the Court regarded it as substantial mitigating feature that the offender pleaded guilty on an ex officio indictment. The Chief Justice, with whose reasons the President and Davies JA agreed, considered that, even allowing for the pleas of guilty, imprisonment of the order of 10 to 12 years was warranted. [51] Those decisions, and particularly R v C, support my conclusion that the applicant s sentence after a trial should be no less severe than 10 years imprisonment. [52] The applicant referred to R v PAK, 17 R v BAO, 18 R v SAR, 19 R v Walden 20 and R v W. 21 [53] In R v BAO, the Court refused to extend time for an application for leave to appeal against sentence on the ground that there were no sufficient prospects of success. That applicant was sentenced to nine years imprisonment on his plea of guilty to one count of maintaining a sexual relationship with a child with a circumstance of aggravation, one count of sodomy, and one count of indecent dealing with a circumstance of aggravation. The offending extended over some three years and the complainant girl was about nine or 10 when it commenced. There were three incidents of sodomy commencing when the complainant was aged about nine or 10 and regular instances of digital penetration of the complainant s vagina, oral sex, and other instances of oral, vaginal and anal penetration. Williams JA, with whose reasons the President and Mackenzie J agreed, observed that it was a realistic evaluation of the range after a trial that a sentence of at least 10 years could have been imposed, with the requirement that the offender serve 80 per cent of that term. Bearing in mind that the offending in that case did not involve the aggravating circumstance that the offender was the complainant s father, the decision provides some further support for the conclusion that the applicant s sentence after a trial should be no less severe than 10 years imprisonment [2003] QCA 134 at p 4. [2003] QCA 134 at p 5. [2010] QCA 187. [2004] QCA 445. [2005] QCA 426. [2010] QCA 13. [1998] QCA 343.

14 14 [54] In R v SAR, the Court substituted a period of seven years imprisonment for the sentence of eight years imprisonment imposed by the sentencing judge on two counts of sodomy with a circumstance of aggravation and a maintaining count. Although there were two complainants, aged between eight and 11 years and between six and eight years, there were much less frequent occasions of the most serious offences of sodomy. The appeal against sentence was allowed primarily because the offending only came to light when the applicant contacted police about 12 and a half years after he had ceased offending, during which period he had apparently lived a blameless life, and he spontaneously and voluntarily confessed his crimes in circumstances where his offending otherwise might never have come to light. The maximum penalty at the relevant times was 14 years imprisonment for the maintaining charge and the two counts of sodomy, whereas in this case the maximum penalty for each offence is life imprisonment. Those matters, and the mitigation customarily afforded in the case of a plea of guilty, suggest that the sentence of seven years imprisonment imposed in that case is comparable with a sentence which is no less severe than 10 years imprisonment in this case. [55] In R v Walden, the Court refused leave to appeal against a sentence of six years imprisonment after a trial on a charge of maintaining an unlawful sexual relationship with a child under 16 years for a period of at least two months and involving sexual intercourse three or four times per week. In that case the Chief Justice noted that in R v W the offender maintained a sexual relationship with a 13 year old girl which involved frequent unlawful carnal knowledge over four months. Neither decision sheds light on the proper sentence here, because in each case the period of the maintaining was far less and the offender was not related to the complainant. [56] In R v PAK, the Court refused leave to appeal against a sentence of seven and a half years imprisonment for a maintaining offence which persisted for about eight years, commencing when the complainant was eight years old, and involved frequent instances of digital penetration of the complainant s vagina, other indecent dealing, and one instance of sodomy. The offences involved a breach of trust by the offender as the complainant s stepfather. The present applicant s offence was more serious because he committed numerous acts of sodomy against his own daughter. Furthermore, because the decision in R v PAK was only that the penalty imposed was not manifestly excessive, that decision does not limit the appropriate range of sentences for similar offending. Disposition and orders [57] The respondent did not oppose the applicant s submission that the sentences on counts 5 to 12 imposed by the sentencing judge were manifestly excessive and should be replaced by the shorter terms of imprisonment which the applicant nominated. That being so, and because those sentences have no bearing upon the effective overall sentence, it is sufficient that I express my opinion that the sentences which the applicant proposed for those offences are appropriate. Those sentences are included in the orders I propose. [58] In my opinion, the appropriate orders are: 1. Application for leave to appeal against sentence granted. 2. Appeal against sentence allowed.

15 15 3. Set aside the sentences on counts 1 and counts 5 to 12 in the indictment and in substitution for those sentences impose the following sentences: (a) On count 1, sentence the applicant to 10 years imprisonment. (b) On each of counts 6, 8, 10 and 12, sentence the applicant to six years imprisonment. (c) On each of counts 5, 7, 9 and 11, sentence the applicant to three years imprisonment. (d) Each sentence is to be served concurrently with each other sentence. [59] WHITE JA: I have read the reasons for judgment of Fraser JA and agree with those reasons and the orders proposed by his Honour. [60] MULLINS J: I agree with Fraser JA.