R v M & Attorney-General of Queensland [1999] QCA 74 (17 March 1999)

Last Updated: 10 May 2016

99.74

COURT OF APPEAL

McMURDO P

McPHERSON JA

MUIR J

CA No 485 of 1998

THE QUEEN

v.

M Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

..DATE 17/03/99

JUDGMENT

THE PRESIDENT: This is a reference brought by the Attorney-General against the sentence imposed on the respondent at the District Court at Brisbane on 16 December 1998.

The respondent was sentenced to a total effective sentence of nine years imprisonment with a recommendation for release on parole after three years.

The appellant submits the sentence imposed was manifestly inadequate in that it fails to reflect adequately the gravity of the offence generally and in this case in particular, it failed to take sufficiently into account the aspect of general deterrence; and the sentencing Judge gave too much weight to factors going to mitigation.

The respondent pleaded guilty on 5 October 1998 to one indictment charging three counts of indecent treatment with a girl under 14 years, one count of maintaining a sexual relationship with a child under 16 years with a circumstances of aggravation, four counts of unlawful carnal knowledge of a girl under 16 with a circumstance of aggravation and one count of indecent treatment of a girl under 16 years.

These offences related to his stepdaughter, A, and occurred between 1990 and 1993 when the complainant was aged 13 to 16. He also pleaded guilty to a second indictment charging two counts of indecent treatment of a girl under 14 years, one count of maintaining a sexual relationship with a child under 16 years, five counts of unlawful carnal knowledge of a girl under 16 years with a circumstance of aggravation and one count of exposing a child under 16 years to an indecent video tape with a circumstance of aggravation.

These offences related to his stepdaughter, S, and spanned a period between 1990 and 1994 when she was aged from 12 to 16 years.

The facts are particularly serious. The appellant married the complainant's mother in September 1988. His sexual relationships with the girls commenced in 1990 and only terminated when A left home in 1993 and he separated from the mother and S in 1994.

It is of particular significance that the applicant dominated the household with violence, intimidation and fear. The children learnt that opposition to him resulted in verbal abuse and physical assaults such as slapping, pushing into furniture, punching and shaking. He would sometimes spit on A and call her a "slut" and "a piece of shit". It was in that context that the applicant commenced his sexual relationship with the girls.

The offences included regular vaginal intercourse with each child for a period of years, fellatio, masturbation, voyeurism, three-way sex and defecation.

He engaged in sexual intercourse with A before she reached puberty and organised the contraceptive pill for both complainants at aged 13. He told them he wanted to father a child with them. Significantly, he gave them genital herpes, a serious and life-long, at this stage, sexually transmitted disease.

He had a practice of interfering with A sexually whenever they were alone. He had sexual intercourse with her two to three times a week, often in the toilet.

For some months he included her in his acts of intercourse with her mother. It seems the mother was another victim of his behaviour rather than a corrupt party: at least that was the submission made by the Crown below. The mother argued with the appellant over his behaviour but, it seems, was physically assaulted by him.

On occasions A was required to urinate on the respondent's penis for his sexual gratification. He regularly pestered her to defecate on him, something which she found, understandably, particularly distasteful. He would physically and verbally abuse her for days sometimes before obtaining her compliance. She found the degradation of this so distasteful that she cried when performing it.

It seems the respondent was jealous of any contact by A with boys but orchestrated invitations to the house for the young female friends of both complainants. The complainants were required to have their friends undress in a bedroom where the respondent had installed a two-way mirror.

The respondent also had sex with S once a week for a period of about three years. Fellatio and masturbation were regular occurrences and she was also required to urinate on him for his sexual gratification.

He showed her a pornographic video on one occasion before having intercourse with her. As S grew older she tried to distance herself from the respondent but he made her feel guilty and called her "a selfish bitch".

On one occasion he physically assaulted her and bashed her head on the kitchen cupboard. He would scream and nag at her. He sought to control her contact with boys of her own age and encouraged her to bring boys to the house so that he could watch them kissing. He encouraged her to perform acts of oral sex with the boys but she refused.

In late 1996 A complained to police and a pretext telephone call was organised in which the respondent made some admissions.

As you would expect the consequences for the complainants have been extremely severe. Victim impact statements were tendered at the sentence.

A's states:

"He took away my virginity, controlled the way I went to the toilet with his sick fetish for bodily excretions, gave me a lifetime STD and in a nutshell, stripped me to the core of humanity.

Who am I? Every day I am still trying to find out what I like, how I should behave, and what I should be thinking based on society's expectations. I have never been able to do this before. So used to be who or what he wanted me to be, only now am I really starting to find me, A. There is not a day that goes by that something doesn't remind me of the pain of my youth. Except really I had no childhood, as I grew up so fast in an adult world with very adult concepts."

S notes in her victim impact statement that the

respondent is an abuser.

"From the first day he entered my life in 1987 as my mother's boyfriend he has abused me physically, mentally, sexually and emotionally. At first his actions were subtle, building up my trust, pretending to have feelings of happiness and sadness. Gradually, however, this facade grew to a point where I trusted him, and then he set about destroying my 11-year-old life. In a stepfather role he was dominant over me in a parenting role, similar to mum. This role, I believe, should be one of a protector. Protecting me from harm as any other parental figure. This, however, was not the case. M used this position of power to unleash his game. His game has & always will be, to win at all costs, to prey on the weak, and overpower others by his physical stance and emotional hold."

Psychiatrist Dr Curtis has examined and treated both complainants and notes that they have both contracted genital herpes, a lifelong infective disease from the respondent. In respect of them both he says:

"The offender's perverse intrusions and predations caused severe, at the upper range of severe, psychological trauma ... [They] will now suffer mild to moderate sequelae for the rest of [their] lives, despite the recoveries implicit in [their] constitutional strengths & innate resilient character. [Their] course in life will have been irrevocably altered in unknown detrimental and depriving ways as a result of what the offender did."

The respondent, after being charged, fled Australia for the United States just two weeks before the original trial date. He was arrested in Miami, Florida, on 13 March 1998 and has been in custody since that time. He pleaded guilty on the morning of the trial to a very strong Crown case. Nevertheless, although this is not an early plea, he should get some credit for that plea.

Although initially at sentence there was a dispute as to some of the facts, which resulted, at the request of defence counsel, in an adjournment, the respondent finally accepted the girls' version of the offences. The respondent is now 47 years old and has no relevant prior convictions although that is not surprising, bearing in mind that these offences have occurred in secret over a lengthy period.

The appellant submits a sentence in the range of at least 15 years is required. Mrs Clare, who appears for the appellant today, has referred the Court to the cases of S (316/93) and Krieger (13/91). She has submitted that those cases are not worse than this case. It is difficult to compare these cases, all of which are sordid, unpleasant, serious and have consequences for the victims, but there are some differences between this case and S and Krieger; especially in the age of the child victims.

In the case of S the sentence of 20 years imprisonment was reduced to 15 years imprisonment and in the case of Krieger a sentence of 15 years imprisonment was not interfered with on an application brought by Krieger. Other cases, including B and P, CA 345 and 346 of 1997; Allen, 55 of 1996; H, 27 of 1995; and Kingwill, 75 of 1993 suggest that the sentence imposed in this case was outside the appropriate range and was inadequate.

As I have said, it is difficult to compare cases which all turn on different facts and circumstances, but a case which has some similarity, in my view, is the case of The Queen and K [1993] QCA 352; (1993) 69 A.Crim.R. 236. In that case the respondent had pleaded guilty to three cases of maintaining a sexual relationship with a child under 16 years. His sexual activity was with his two stepdaughters and his natural son over a number of years and involved the children in sexual activities with each other in his presence. K, however, unlike this respondent, was remorseful at an early stage for his actions, made full admissions and pleaded guilty by way of ex officio indictment. The sentence in that case was increased from a six year sentence with a recommendation for parole after two and a half years to a sentence of 12 years imprisonment with a non-parole period of four years.

The offences in this case are, in my view, towards the higher end of a scale of seriousness for offences of this type. The serious aspects of them are the breach of trust and the respondent's insidious, manipulative and violent behaviour which created an atmosphere where the young complainants had no free will to resist his perverted conduct. The respondent only pleaded guilty on the morning of the trial. The complainants will probably never recover from the effects of his abuse, although it is to their credit that they are coping as well as they are.

As I have said, in my view the sentence imposed of nine years with a recommendation for parole after three years was in all the circumstances inadequate. I would substitute a sentence of 12 years imprisonment for the sentence imposed below and recommend release on parole after serving five years. Although a heavier sentence would have been within the appropriate range, some recognition should be given to the views of the sentencing Judge.

McPHERSON JA: I agree with what has been said by the President and with the order she proposes.

MUIR J: I agree.

THE PRESIDENT: The order is: a sentence of 12 years imprisonment is substituted for the sentence imposed below of nine years imprisonment. A recommendation for parole after five years replaces the recommendation for parole made below after three years. Otherwise the sentence imposed below is confirmed.

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