R v G Scc [1989] ACTSC 53 (3 November 1989)

SUPREME COURT OF THE ACT

THE QUEEN v. G
S.C.C. No. 8 of 1989
Sentencing

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles J.(1)

CATCHWORDS

Sentencing - incest - three episodes charged - history of offence of incest - changing attitudes towards incest statutory developments in the Australian Capital Territory aggravating and mitigating factors.

Benasic v. R (1987-1988) 77 ALR 340

Nancarrow (1972) QWN 1

H (1980) 3 ACR 53

BJ (1984) 2 NSWLR 522

HJ (1982) 6 ACR 128

R v. J (1982-1983) 45 ALR 331

Bailey and Blackburn: "Punishment of Incest Act 1908 : A Case Study of Law Creation" (1979) Crim LR 708

J Crawford: Australian Courts of Law, 2nd ed. pp 14-15

Report of the Attorney-General's Working Party on Territorial Criminal Law

Textbook of Criminal Law (2nd ed. p 366

Channon [1978] FCA 16; (1978) 20 ALR 1 at 5

R v. Corless (1989) Crim LR 517 (27 January 1989)

Attorney-General's Reference No. 1 of 1989 (1989) 139 New Law Journal 115 (31 July 1989)

HEARING

CANBERRA
3:11:1989

Counsel for the Crown: Mr G Lalor

Instructed by: Director of Public Prosecutions

Counsel for Defence: Mr T J Higgins QC and Mr S Pilkington

Instructed by: Porter Pilkington

DECISION

The accused was convicted on 25 September 1989 on three counts of incest with his daughter and two counts of wounding with intent to inflict grievous bodily harm upon her. It was not necessary for the jury to return verdicts on two alternative counts of common assault. The girl was born on 28 April 1971.

2. The convictions arose out of events on three separate occasions. The first was on about 4 April 1986. The offender was living with his wife and two of their children at their home in a Canberra suburb. After the girl had gone to bed he went to her room at about 10 p.m., fondled her and had sexual intercourse with her. He then produced a knife which he inserted into the girl's vagina, stating that if he could not have his way, then no one else could. The incident concluded when the offender slapped the girl across the face. She said in her evidence that although her mother and younger brother were in the house at the time she did not call out "because no one ever came". She was then barely 14 years old.

3. Following these incidents the girl left the home and child welfare authorities were called in to investigate. The girl was sent to live in an institution. The offender was not at that stage charged. At about that time a school friend saw cuts on the thighs of the girl.

4. The girl lived in the institution for the next two years or so. She was discharged, found employment and went to live in a hostel. On 22 April 1988 shortly after she turned sixteen she went to visit a sister. Her mother was present at the sister's house. Because the girl was short of some household item, the mother telephoned the father and arranged for him to bring it from home for the girl to take back to the hostel. How the girl got from the sister's flat back to her hostel is not clear. She claimed that she caught a taxi, but the offender, whose statement was supported by the evidence of his son, claimed that she was driven back to the hostel by him at the insistence of the mother and son who were in the vehicle. In any event, the prosecution case was, and the jury must be taken to have accepted it, that shortly after her return to the hostel, the girl found her father and her mother in her room. They pushed her on to the bed. The father removed her clothing and held her legs apart whilst her mother performed a sexual act upon her. The mother left and her father had sexual intercourse with the girl despite her protest. The father dressed and left. The girl then rang a social worker, who came to the hostel. Although the social worker found the girl in a state of distress, the girl did not tell her what had happened. What she did say was that she feared that her father would come to the hostel and rape her.

5. The third occasion was on the evening of the following day, 23 April 1988, when the girl came home to find her father behind the door of her room at the hostel. He pushed her on to the bed and again had sexual intercourse with her against her wishes. When that was completed he took a knife that was on a vanity basin and inserted it into her vagina, causing bleeding. He washed the knife. He then pulled the mattress off the bed, put it up against the body of the girl and began to punch the mattress. She told him that it would be the last time he would ever rape her. He boasted to the girl that he would never get caught and that the police and welfare authorities would never believe any complaint that the girl might make. After the offender's departure, the girl rang a friend who found her in a distressed state and took her home. Again, however, the girl made no complaint about what had happened.

6. The girl was examined by doctors on 10 April 1986 and on 27 May and 5 July 1988. On these occasions she did not or would not submit to a full vaginal examination.

7. Police interviewed the offender at the Belconnen Police Station on 17 January 1989. In a record of interview tendered in evidence he admitted prior sexual activity with the girl and with two other daughters of the marriage. Part of the record of interview was excluded from the consideration of the jury, not because it was irrelevant, but because of its tendency to deflect the attention of the jury to peripheral issues which were of little probative value contrasted with their likely prejudicial effect. Counsel who appeared for the offender at the sentencing stage asked me not to take into account any material that was not before the jury. However, it is proper to take into account all evidentiary material that is relevant to sentence, whether or not it was evidence in the trial (Benasic v. R (1987-1988) 77 ALR 340). The safeguard for the offender is that any aggravating circumstances are not to be taken into account unless proved beyond reasonable doubt, and in any event the offender is not to be sentenced for a crime for which he has not been convicted. He is not, however, entitled to be treated as one who, in the light of his previous conduct, has a claim to leniency because the offences for which he was convicted were isolated events and out of character. There was sufficient material before the jury to convince me beyond reasonable doubt that the offences were not isolated or out of character.

8. The offender was born at Queanbeyan on 26 April 1928. He received a limited education in local schools until the age of 13. There is no suggestion that he himself was subject to any sexual or physical abuse as a child, but he did run away from home at the age of 14 because of his father's strictness. He followed various occupations in the local area and New South Wales. In the 1950s he worked for twelve months at an asbestos mine in Western Australia. He developed asbestosis and still suffers from it. He married in 1959 and there are five daughters and three sons of that union. He continued in jobs of a labouring or semi-skilled nature within the government service. A family home was purchased in 1975, but it is a couple of years since the offender resided there. In January 1987 the offender suffered an injury to his elbow and has been in receipt of worker's compensation ever since.

9. A pre-sentence report furnished by a Probation and Parole Officer is not unsupportive of the offender, but it is based on an assumption that "although relationships appear to have lacked some depth, the family seems to have been a viable unit until allegations were made resulting in the current court action".

10. That assumption is contrary to what the offender himself said in his record of interview, contrary to what he told Constable Allen, who prepared an antecedents report and contrary to what he told a psychologist retained by his own solicitors. The importance of protecting the family unit is of little relevance in the present case.

11. The offender is not entitled to the leniency that is usually attracted by a plea of guilty. He still protests his innocence and declares his intention to appeal against the jury's verdict. His sentence is not to be made the heavier for any lack of contrition but clearly he is not entitled to the leniency that might be extended for contrition nor to that leniency that might be extended to an offender who shows real and genuine insight into the pattern of conduct which has led to the commission of a criminal offence and who thus indicates positive prospects of rehabilitation.

12. However, it must be recognized in the present offender's favour that he is now 61 years of age (and his asbestosis is potentially a very serious illness) and that he has no prior convictions of any relevance. Whatever the length of the prison sentence he receives, he is unlikely to re-offend, if only because of the increase in ages of both himself and the girl.

13. In handing down sentences for the crime of incest, the courts have repeatedly referred to the inherent seriousness of the offence and the repugnance with which it is regarded by society, for example in Nancarrow (1972) QWN1, where Hoare J. said, "All cases of incest are serious and most of them are revolting". At first glance, however, the sentences themselves do not seem to have consistently reflected such an approach. I have looked at a number of decisions of various courts of criminal appeal in Australia including H (1980) 3 ACR 53, BJ (1984) 2 NSWLR 522, HJ (1982) 6 ACR 128 as well as some unreported decisions. However, it may be necessary to refer further only to R v. J (1982-1983) 45 ALR 331, a decision of the Full Court of the Federal Court of Australia on appeal from this Court. The following passage from the judgment of Toohey J. emphasises the wide range of conduct encompassed by the crime of incest and points to the diversity of considerations (religious, moral, eugenic, psychological, physical) that may be taken into account in assessing the nature of a particular incestuous relationship for the purposes of punishment. At pp 335-6 his Honour said:
"The severity which the criminal law has trad

itionally visited upon the offence of incest
derives from a number of considerations. It has
been regarded as morally wrong and an offence
against religion. It involves the genetic risk
that certain diseases are more likely to occur.
It is destructive of the family relationship. It
involves a breach of the trust reposed in a parent
to care for and protect his children. The cogency
of these considerations has varied from time to
time and from community to community. In a
contribution to Family Violence - An International
and Interdisciplinary Study (Editors J.M. Eekelaar
and S.N. Katz, Butterworths 1978), Mr A.H.
Manchester reviews briefly the attitude of the law
to incest and concludes: "The actual practice of
the courts indicates that in this context the aim
of the criminal law of incest is, above all, to
protect the young child" (at p 502): see also
Bailey and McCabe: Reforming the Law of Incest
(1979) Crim LR 749.
The move away from the notion that law is the
custodian of morals; the view that sexual conduct
between consenting adults does not require the
intervention of the criminal law; and an emphasis
upon the importance of rehabilitating the family
have all led to a climate of opinion that prison
sentences may not be appropriate in some cases of
incest. But the protection of young children from
corruption and exploitation, especially by someone
in a position of trust or authority, must remain
an important and generally prevailing consideration.
Although in one sense the term "incest" produces
an immediate reaction of disapproval, it sometimes
serves to conceal the implications for the girl
concerned. In an article Rape of Girl-Children by
Male Family Members 215 ANZJ Crim (1982) 90,
Elizabeth Ward comments: "What other writers refer
to as 'father-daughter incest' I shall call 'girl
child rape'. My reason for doing this is that the
term 'incest' focuses attention upon who is
involved in 'sexual activity' rather than what is
happening to the girl-child. 'Incest' is the
label applied to sexual unions which violate the
prohibition on sexual contacts among related
persons. As such, it is used to refer to mutually
consensual unions such as those between adult
siblings, as well as to the non-consensual unions
between a girl-child and an adult male. This
reference to 'a case of incest' serves to deny in
linguistic and affective terms the fact that a
form of abuse has taken place."
In a particular case the age and attitude of the
girl may warrant a conclusion that what occurred
did so consensually. In another case the age or
the attitude of the girl or both may make it clear
that what occurred was in truth rape or indecent assault."

14. In that case a 3 year suspended sentence was upheld by the majority of the Court on an appeal by the prosecution, the majority holding that an immediate custodial sentence would lead to the break-up of the family unit and consequent suffering of the girl, who was aged 15 at the time of the offences.

15. It may be instructive to consider recent statutory changes to the law relating to incest which have taken place since the decision in R v. J, and to place them in their historical and legislative context.

16. Despite what the courts have repeatedly said about the seriousness of the crime of incest, the nature of the offence has received comparatively little judicial or academic attention until recent times. Statutory definitions apart, incest itself is a term of imprecise content, as is indicated in the passage quoted from Toohey J. The history of incest in the law of England is traced by Bailey and Blackburn "Punishment of Incest Act 1908 : A Case Study of Law Creation" (1979) Crim LR 708. Incest was not a crime at common law, and apart from a brief period during the Puritan Commonwealth, was not made an offence by statute until the Punishment of Incest Act 1908. The Earl of Halsbury opposed legislation creating a crime of incest, declaring that "the evil, though shocking, is of rare occurrence", and that the legislation was "calculated to do an infinite amount of mischief". Although incest was in theory punishable by the ecclesiastical courts, the powers of such courts had fallen into disuse by the middle of the 19th century.

17. The Supreme Court of New South Wales did not acquire the jurisdiction of the ecclesiastical courts (see J. Crawford: Australian Courts of Law, 2nd ed. pp 14-15).

18. At at the time of the excision of the Australian Capital Territory from New South Wales on 1 January 1911 and the continuation of New South Wales law into the Territory on that date, s.73 of the Crimes Act 1900 (N.S.W.) provided that it was an offence punishable by 14 years penal servitude for a schoolmaster, father or stepfather to have carnal knowledge of his pupil, daughter or stepdaughter, consent of the female providing no defence. The incestuous act of a father with a daughter was caught by this section. However, incest as such did not constitute a criminal offence either in New South Wales or in the ACT at that time.

19. In 1951 s.78A and the following sections were inserted into the Crimes Act 1900 (NSW) in its application to the Australian Capital Territory (similar provisions had been made by s.78A of the NSW Act in 1924). Incest committed by a male with a mother, sister, daughter or granddaughter (or by a female with a corresponding male relative) became an offence punishable by imprisonment for 7 years. As the Report of the Attorney-General's Working Party on Territorial Criminal Law in 1975 observed, incest was not a crime in the Australian Capital Territory until 1951 and at the time of the preparation of the Report it was believed that no prosecution for incest had ever taken place in the Territory. On the other hand, it must be observed that a father charged with carnal knowledge of his daughter under s.73 faced a maximum penalty of 14 years imprisonment but if charged with incest under s.78A, faced a lesser maximum of 7 years.

20. Colin Howard and Granville Williams each treat incest as a "victimless" crime. Professor Howard describes incest in terms of a combination of values partly biological, partly protective of the family and partly of traditional moral attitudes (Criminal Law, 4th ed. pp 167-168).

21. In his Textbook of Criminal Law (2nd ed.) at p 366 Granville Williams states that "incest is not an offence against the person", that "its basis is either 'moral' (incest is widely thought to be wrong in itself) or eugenic, not a matter of protecting the young". This attitude no doubt explains his opinion expressed at p 242 that sentences for incest with daughters are "much too high".

22. I doubt whether such an approach to the crime of incest is maintainable in the light of recent statutory changes to the law relating to incest and in the light of changing community attitudes.

23. The 1975 Report of the Working Party on Territorial Law recommended reform to the law of incest in the ACT to the end that it be directed primarily against the exploitation or abuse of those who are too young to be able to give informed consent and that it cease to make punishable acts between consenting adults. According to one of the authors, Professor Brent Fisse (Proceedings of the Institute of Criminology, Faculty of Law, University of Sydney, No. 61, 1984 at p 78) the Report met with less than favour and was castigated in the House of Representatives as the product of a "twisted mind". The recommendations in the report never became law. What did happen was that ten years later there were comprehensive amendments to the Crimes Act 1900 (NSW) in its application to the ACT whereby most of the old provisions relating to rape, carnal knowledge, indecent assault and incest were swept away and replaced by a number of more or less precisely defined offences (gathered under the collective term "sexual offences"), each with its own maximum penalty. The penalties for some sexual offences have been increased and for others have been decreased. For instance, rape, carrying a previous maximum sentence of life imprisonment, has been abolished. Another offence of sexual intercourse without consent has been substituted, carrying a maximum penalty of only twelve years, although aggravated forms of sexual assault involving violence carry much heavier maximum sentences. For the crime of incest, s.92L provides for a maximum sentence of 20 years imprisonment when the incest is with a child under 10 years, 15 years imprisonment when with a child between the ages of 10 and 16 years and 10 years imprisonment when with a person of the age of 16 years or above. The penalties for incest have been increased overall, but increased most where the incest is committed with a young child.

24. The result is that the crime of incest may now be treated as punishable to the extent that it constitutes sexual abuse of the child who is in truth a victim. The problem of "girl/child rape" by a father charged with incest but not with rape is now of no consequence because the offence of incest with a child below 10 years or between 10 and 16 years carries a heavier maximum sentence than the offence of sexual intercourse without consent. A sentencer may now look at incest committed by an adult with a child on the basis that the law is directed to the protection of the child. That accords with the proper statutory construction of s.92L and the history of the legislation. It also accords with what appears to be present community attitudes to child abuse generally. Insofar as punishment is capable of protecting society (or a section of society) that is its function and its only function. As Brennan J. said in Channon [1978] FCA 16; (1978) 20 ALR 1 at 5:

"Criminal sanctions are purposive, and they are
not inflicted judicially except for the purpose of
protecting society; nor to an extent beyond what
is necessary to achieve that purpose."

25. Thus, in the present case I conclude, in the light of the above, that it is proper to treat the offences for which the offender has been convicted as constituting a serious case of child abuse, indeed an extremely serious case of its type. The offences have to be considered in the light of the fact that they were not isolated, occasional or uncharacteristic. On the first occasion in 1986 and on the second of the two occasions in 1988, the offender accompanied the sexual intercourse with his 14 year old daughter with threats and the use of a knife inserted into her vagina to the extent that it caused bleeding. After the occasion in 1986 the child was removed from the home and placed in an institution. The offender was not prosecuted at that stage. After the girl had been discharged from the institution some two years later and set about trying to make a life for herself, her father took advantage of her vulnerability not once but twice again and on one of these occasions again used a knife on her body. Her reluctance to submit to medical examination and her frequently distraught condition in the witness box, demonstrated that she is likely to bear the psychological scars of these experiences for a long time, if not for the rest of her life.

26. Experience in these Courts show repeatedly that offenders in many instances claim to have been physically and sexually abused when young, a claim unlikely to be made unless it was true. That experience accords with the view that the social aspect of the evil of child abuse, physical or sexual, is that it does not stop with what is inflicted on the individual victim, that the abuse tends to perpetuate itself and victims become predators. That view may be a contemporary development of the traditional concern about corruption of the child.

27. Since preparing these remarks on sentence I have had my attention drawn to the two recent decisions of the English Court of Criminal Appeal which were concerned to reconcile the various sentences for the crime of incest which have been imposed or approved by different decisions of that Court. In the first, R v. Corless (1989) Crim LR 517 (27 January 1989), the Court referred to the various matters to be considered: the age of the girl, the length of time over which the offences spread, the degree of corruption, the extent of the breach of trust, the use of violence, the effect on the girl, the presence or absence of perversion, the offender's record and any plea of guilty which would save the girl the further trauma of giving evidence. In the second, Attorney-General's Reference No. 1 of 1989 (1989) 139 New Law Journal 115 (31 July 1989) the Court laid down guidelines for the levels of sentence for various categories of incest. The Court expressly recognised that incest committed by a father with a young daughter may occur "more often than is generally realised". The Court referred to a number of factors which might be regarded as aggravating or mitigating the particular offence under consideration. The guidelines for sentence levels are of little assistance to this Court because neither the age categories nor the various statutory maximum sentences in the English legislation have sufficiently corresponding equivalents in the ACT legislation. Nevertheless it is clear that the English Court of Criminal Appeal regards incest at least with young children as "sharing some of the unpleasant aspects" of the crime of rape, and that "the younger the girl when the sexual approach is started, the more likely it will be that the girl's will was overborne and, accordingly, the more serious would be the crime. In Attorney-General's Reference No. 1 the Court suggested that aggravating factors, whatever the age of the girl, are as follows:

1. If there is evidence that the girl has
suffered physically or psychologically from
the incest.
2. If the incest has continued at frequent
intervals over a long period of time.
3. If the girl has been threatened or treated
violently by or was terrified of the father.
4. If the incest has been accompanied by per-
versions abhorrent to the girl, eg. buggery
or fellatio.
5. If the girl has become pregnant by reason of
the father failing to take contraceptive
measures.
6. If the defendant has committed similar
offences against more than one girl.

28. Possible mitigating factors were seen to be:

1. A plea of guilty. It is seldom that such a
plea is not entered, and it should be met by
an appropriate discount, depending on the
usual considerations, that is to say, how
promptly the defendant confessed and his
degree of contrition and so on.
2. If it seems that there was a genuine
affection on the part of the defendant
rather than the intention to use the girl
simply as an outlet for his sexual
inclinations.
3. Where the girl has had previous sexual
experience.
4. Where the girl has made deliberate attempts
at seduction.
5. Where, as very occasionally is the case, a
shorter term of imprisonment for the father
may be of benefit to the victim and the
family.

29. Turning to the present case, only No. 5 of the aggravating factors is wholly absent and none of the mitigating factors is present. Whilst the English decisions are, of course, not binding and the lists of aggravating and mitigating factors are not exhaustive, they are, with respect, useful guides now that the Court of Criminal Appeal has expressed the view, which I understand to be the intention of the present ACT legislation, that the law of incest is at least in the case of incest performed with young children, now aimed at their protection and against sexual abuse and exploitation. That, in any event, accords with what Toohey J. had to say in more general terms in R v. J in the passage I have quoted.

30. Ironically, the offences of wounding with intent to inflict grievous bodily harm committed by the offender against his daughter are not at the most serious end of the scale for that serious offence, which carries a maximum term of imprisonment for life. The medical evidence does not establish that in either the 1986 offence or the 1988 offence, the wound was serious, although in each case it was sufficient to cause bleeding. Although the jury found that the nature of the act itself together with threats accompanying it in each case were sufficient to prove an intent to inflict grievious bodily harm, fortunately that intention was not fulfilled.

31. The offences in 1988 were sufficiently distinct from those in 1986 that cumulative sentences as between those two groups of offences are inevitable. However, the totality principle must be applied and to make the sentences for the offences of 23 April 1988 cumulative upon that for the offence of 22 April 1988 would, in my view, result in a crushing sentence. The wounding offences clearly require sentences concurrent with the sentences for the reasonably contemporaneous incest offences. I propose to make the sentences for all 1988 offences concurrent with each other. I take into account that the offender has been in custody since 25 September 1989.

32. The offender is sentenced as follows:

On the first count: 7 years imprisonment.
On the second count: 2 years imprisonment.

concurrent with the sentence in the first count. Both to date from 25 September 1989.

On the fourth count: 5 years imprisonment.
On the fifth count: 5 years imprisonment.
On the sixth count: 2 years imprisonment.

all three concurrent with each other but cumulative upon the sentence on the first count.

33. I fix a non-parole period of 6 years to date from today. I recommend that the prison authorities give early and particular attention to the classification and security of the offender and to treatment of his asbestosis.