Three judges have questioned whether the “exceptional circumstances” considered in the sentence of a man who sexually abused his younger sister – including that he was a victim of sexual abuse himself – were exceptional enough to spare him jail.
The man, now aged in his early 40s, escaped jail time last year after being convicted of inflicting abuse on his younger sister over many years, when he was both a child and an adult.
After inquiries were made by Brisbane Times, Queensland’s Attorney-General Deb Frecklington lodged an appeal of his suspended sentence. He was spared time behind bars despite eventually pleading guilty to one count of rape and eight counts of indecent treatment of a child under 16.
The case was heard in Brisbane’s Court of Appeal on Monday.
The man abused his young sister over many years in the 1990s and early 2000s, including digitally raping her. He cannot be named because some of the assaults occurred when he was a minor.
The abuse started when his sister was eight years old and he was a teenager, and continued for six years until she was about 14. It continued when her brother was an adult in his early 20s and returned to live in the family home after a period away.
A district court judge spared the man jail, ruling there were “exceptional circumstances” in the case, including that the man was a victim of sexual abuse himself and had been encouraged by his abuser to offend against his sister.
On Monday, defence barrister Scott Neaves said his client was raised in a household where sexualised conduct with children was “normalised”, as his mother had a relationship with a 15-year-old boy, who lived in the home as his stepfather.
But Justice David Boddice said he struggled to see exceptional circumstances in the case when “it is a well-known fact that often those who commit sexual offending against children have been offended against”.
“That is the cycle that needs to be broken. So what about this case is exceptional? When you read the psychological reports, they don’t seem to deal at all with why he went back and offended while he was an adult. I would have thought that’s the very thing that was most disturbing about it all,” Boddice said.
“It doesn’t seem to me there was much explanation at all for why he decided to go back and force himself on his sister, whilst he was an adult, when she was plainly saying no and plainly being affected by it.
“The adult behaviour is awfully predatory and in complete disregard for the impact on anybody else. So predatory and selfish might be the best way to describe it.”
In response, defence barrister Neaves said: “Selfish might be consistent with his youth and his cognitive distortions … He is a person who suffers from his learned experience and his cognitive distortions about what sexual conduct is appropriate, and it’s not until he reaches a mature age that he overcomes those things.”
Boddice replied: “I struggle with that. There’s certainly nothing in the psychological material that seems to explain why, as an adult, he went back and did what he did.”
Justices Shane Doyle and Catherine Muir also noted the man only sought counselling after he was questioned by police, and had initially only confessed to offending while he was a child.
He pleaded guilty after four years of preparing for a trial.
Crown prosecutor Michael Lehane argued the man should be sentenced by today’s standards, “where there is a great community awareness of both the prevalence of these crimes and their awful consequences”.
“It’s evident that the respondent’s crimes upon his sister have crippled her life in many ways. Exceptional circumstances could have been found, possibly, if all the offences had been committed when the respondent was a child, depending on his precise age. But that of course wasn’t the case.
“The difference between no actual imprisonment and actual imprisonment is very significant. It can make a huge difference to the victims, to the community’s expectations and of course the offender.”
The prosecutor argued the man should have been sentenced to a minimum of four years’ jail, suspended after 12 months.
“The importance of correcting this error also should require genuine correction that a person does actually go to prison,” Lehane said.
The three Court of Appeal judges reserved their decision.
Support is available from the National Sexual Assault, Domestic Family Violence Counselling Service (1800RESPECT) on 1800 737 732.
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