Exit Distraction Free Reading Mode
- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Ruiz; Ex parte Attorney-General (Qld)  QCA 72
RUIZ, Rogelio Acosta
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
CA No 325 of 2019
DC No 250 of 2019
Court of Appeal
Sentence Appeal by Attorney-General (Qld)
District Court at Mackay – Date of Sentence: 6 November 2019 (Sheridan DCJ)
DELIVERED EX TEMPORE ON:
15 April 2020
15 April 2020
Sofronoff P and McMurdo and Mullins JJA
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – OTHER MATTERS – where the respondent was convicted of one count of rape and two counts of indecent treatment of a child under 16 who was under 12 years of age on his own pleas of guilty – where the respondent was sentenced to three years’ imprisonment on the rape count and 18 months’ imprisonment on each of the other two counts – where there were factors in mitigation – where the appellant submits that the proper sentences would have required the respondent to serve 12 months’ imprisonment, after which the sentences should not have been suspended but instead the respondent should have become eligible to apply for parole – where the appellant submits that, alternatively, if the suspension order is to remain, then the respondent should be ordered to serve three years’ probation for the two counts of indecent dealing – whether the suspension of the sentence after a year failed to give any effect to the factor of community protection after the respondent’s release – whether the sentence was manifestly inadequate
Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 9
Criminal Code (Qld)
Penalties and Sentences Act 1992 (Qld)
AB v The Queen (1999) 198 CLR 111;  HCA 46, considered
R v Bull  QCA 74, cited
R v MCB; Ex parte Attorney-General (Qld)  QCA 151, cited
R v O’Sullivan; Ex parte Attorney-General (Qld); R v Lee; Ex parte Attorney-General (Qld)  QCA 300, cited
R v Wilton (1981) 28 SASR 362, followed
C Heaton QC for the appellant
J Robson for the respondent
Director of Public Prosecutions (Queensland) for the appellant
Legal Aid Queensland for the respondent
- SOFRONOFF P: The respondent was convicted of one count of rape and two counts of indecent treatment of a child under 16 who was under 12 years of age. He pleaded guilty, and Judge Sheridan sentenced him to three years’ imprisonment on the rape count and 18 months’ imprisonment on each of the other two counts. Her Honour ordered that the terms of imprisonment be suspended for an operational period of three years, after the respondent had served 12 months.
- The Attorney-General has appealed those sentences on the ground that they are manifestly inadequate. She accepts that the terms of imprisonment imposed for the offences were not inadequate themselves but submits that the proper sentences would have required the respondent to serve 12 months, after which the sentences should not have been suspended but instead the respondent should have become eligible to apply for parole. Alternatively, the Attorney-General submits that if the suspension order is to remain, then the respondent should be ordered to serve three years’ probation for the two counts of indecent dealing. In short, the Attorney-General seeks an order that will place the respondent under correctional supervision in the community for two years after he has served 12 months’ imprisonment.
- The respondent had been a friend of the family of his victim, an eight year old girl. The respondent went to her home while her parents were absent, and having led her into a room and taken down his pants, he induced his victim to take his penis into her mouth and to suck it. This was the rape count. He then fondled the girl’s vagina. This was one of the counts of indecent dealing. He took his penis out of her mouth and had her play with it until he ejaculated. This was count 3.
- There were mitigating factors which, as both parties submitted to Judge Sheridan, justified a term of imprisonment for three years rather than a longer term. The respondent was arrested for these offences only when they came to light about 18 months after he had committed them. He cooperated with police and was interviewed. He admitted the offences as soon as they were put to him. As part of his confession, he disclosed that he had committed the third of the three offences, something that the complainant had not mentioned to police. He then pleaded guilty at an early stage. He immediately expressed remorse after his arrest, and it was accepted at sentence that he was deeply remorseful.
- The respondent did not use violence or threats to compel the child to participate. He has no previous criminal history. The Crown conceded at the sentence hearing that the offending was opportunistic, by which I understand is meant that the offending was not premeditated. He did not commit any further such offences or any offences between the date of these particular offences and his arrest 18 months later. He was 32 years old when he committed the offences. He is married with three young children, and, until he committed these offences, he had been an active and highly respected member of his church and community. His wife continues to support her husband.
- Cases were cited to her Honour which involved similar offending but which were more serious than the present case; thus, in R v Bull  QCA 74, the offender was convicted of rape after pleading not guilty. He had been looking after a girl aged between 11 and 12 years. He used force to rape his victim. On his appeal against sentence, he was resentenced to imprisonment for three and a-half years, with a parole eligibility date at the halfway mark.
- In R v MCB; Ex parte Attorney-General (Qld)  QCA 151, the offender was 20 years old and his victim was the eight year old son of neighbours. The offender fellated the boy and induced the boy to fellate him. He took photographs of the acts and then destroyed his phone to prevent police recovering the evidence. He did not use any violence or threats against his victim. This Court did not disturb a sentence of three years imprisonment, suspended after nine months, for an operational period of five years, together with sentences of nine months’ imprisonment with three years’ probation for several offences of indecent treatment. A term of imprisonment of three years for the rape offence was undoubtedly within the scope of discretion.
- The prosecutor had submitted that a sentence of three years imprisonment would be appropriate in the case. In his own submissions, Mr Heelan, of counsel, for the respondent, accepted three years as an appropriate term of imprisonment and then submitted that a sentence of that order should be suspended after the respondent had served 12 months of it.
- Mr Heelan directed Judge Sheridan’s attention to the question whether to suspend the sentence or whether, alternatively, she should order that the respondent be eligible for parole after serving a year instead. He submitted, for several reasons, that suspension was the preferable course. One of these was that the effect of Mr Heelan’s client’s convictions would render him liable to the regime imposed on sexual offenders by the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld). The reporting requirements imposed by that Act, he submitted, would result in the respondent being under a great deal of supervision, whether he was released on parole or not.
- Mr Heelan also submitted that the respondent’s disclosure of the acts that constituted count 3 entitled him to a discount on his sentence for the reasons explained in AB v The Queen (1999) 198 CLR 111. This too, he submitted, supported a suspension of a sentence as a mitigation of sentence rather than setting an early parole eligibility date. A parole eligibility date might see the respondent remaining in prison for a substantial period after that date, said Mr Heelan. He also pointed to several other mitigating factors to support this submission, but it is not necessary to refer to these.
- Earlier, the prosecutor had submitted that the discount factor referred to, AB v The Queen, should or perhaps could only apply to the sentence on count 3, the offence that the respondent had disclosed to police. Immediately after the respondent’s counsel had concluded his submissions, Judge Sheridan asked the prosecutor whether that factor could influence all three sentences rather than only the sentence for count 3. Her Honour referred to the benefit of AB v The Queen, as put by Mr Heelan, being given effect by way of what she referred to as the global structure of the sentence.
- The prosecutor correctly accepted that the AB v The Queen factor could properly influence all three sentences. She added that there were mitigating factors in this particular case that would “allow your Honour to certainly approach it that way”. Otherwise, the prosecutor did not make any reply to Mr Heelan’s submissions about the form of orders that should be made.
- It was in the circumstances of those submissions having been made by the parties that Judge Sheridan sentenced the respondent. Having observed that a term of imprisonment of three years was appropriate, her Honour said:
“Your counsel referred to the mitigating factors. In particular your level of cooperation, which does entitle you to the benefit of the principles in AB v The Queen, and your level of deep remorse and guilt, and the expressions of apology which are genuinely given. I accept those submissions, and I consider it is appropriate to structure the sentence as proposed by your counsel.”
- The Attorney-General submits that the suspension of the sentence after a year failed to give any effect to the factor of community protection after the respondent’s release. This factor, it has been submitted on appeal, was paramount. The submission is that the respondent’s release “without the benefit of a structured program of supervision designed to bolster the respondent’s prospects of rehabilitation and to protect the community” means that the sentence for rape was manifestly inadequate.
- There are two problems with this submission. First, no such submission was made to Judge Sheridan, even after her Honour had raised the significance of AB v The Queen as a mitigating factor and upon which the respondent had relied expressly to support a suspension of his sentence. On the contrary, the prosecutor’s submission can clearly be read and, in my opinion, should be read as an acknowledgement that the order put forward by Mr Heelan in reliance partly upon that case would be an order that was within the scope of proper sentencing discretion in this case. Mr Heaton QC submitted that it was not entirely clear whether the prosecutor was actually acknowledging as much. In my view, lack of clarity is not a point in favour of this appeal. It should have been made perfectly clear by the prosecutor what she meant. I think that she did.
- In R v Wilton (1981) 28 SASR 362, the sentencing judge has similarly accepted a submission from defence counsel that he should suspend a sentence of imprisonment. The Crown made no contrary submission and the Judge made the order accordingly. The Attorney-General then appealed and submitted that the sentencing discretion had miscarried because the sentence had been suspended.
- Chief Justice King pointed out that the respondent had faced the prospect of imprisonment for the whole of the term imposed but had been spared that ordeal by the judge’s order suspending the sentence. Now, by instituting an appeal against sentence, the prosecution wished to expose the offender once again to the peril of an order for his imprisonment for the whole term, and it had done so having failed to make such a submission to the sentencing judge. Chief Justice King said that the step of appealing had resulted in a serious consequence for the convicted offender and that such a consequence should not be allowed unless there were exceptional circumstances to justify it.
- Chief Justice King said that when an offender’s counsel submits to a sentencing judge that a sentence should be suspended, or when the possibility of suspension is raised by the sentencing judge, if that course is regarded by the prosecution as beyond the scope of the sentencing discretion, then it is a duty of prosecuting counsel to submit as much to the judge. His Honour said that if such a submission is not made, then the prosecution should not be permitted to advance such a submission by way of appeal unless there was something that justified such a course. I respectfully agree. There is nothing in this case that would justify the course that has been taken in instituting this appeal.
- The second problem is that the submission on appeal is based upon the proposition that, in the absence of a parole order or a probation order, the community would be exposed to the risk of the respondent’s reoffending that would not exist if he was made subject to supervision under parole or probation upon his release. Of course, community protection was a live issue in the case, and Judge Sheridan had to consider how to take that factor into account. It should not be thought that a sentencing Judge has to prove that she has taken a particular factor into account by reciting or parroting the content of section 9 of the Penalties and Sentences Act 1992 (Qld).
- Apart from the nature of the offences of which the respondent was guilty, there are no facts that could justify the conclusion that we are asked to draw. That is not surprising, because the Crown did not seek to make any such case at the sentence hearing and so no evidence to support such a finding was tendered below. The course taken by the prosecutor before the judge was understandable. These were loathsome offences, but until he committed them, the respondent had led a stable and normal family life with his wife and children. He had been a respected member of his community. He possessed skills that made him eminently employable. He had committed no previous offences and had committed no offences from the time he committed these offences until his arrest. These offences were, as the Crown acknowledged, not planned.
- Importantly, the respondent was remorseful. An offender’s remorse may be evidence from which one can infer a reduced risk of reoffending, and therefore remorse can reduce the importance of community protection as a factor in sentencing. It may also signify less of a need for denunciation than when an offender shows no regret for his or her offending. See R v O’Sullivan; Ex parte Attorney-General (Qld); R v Lee; Ex parte Attorney-General (Qld)  QCA 300, at paragraphs 127 to 130.
- An offender who is not remorseful lacks any understanding about what he or she did that was wrong and, as a result, presents a real risk of doing the same things again. It is that risk from which the community should be protected. Judge Sheridan found that the respondent was genuinely remorseful. In the circumstances of this case, that was evidence that the respondent did not present a serious risk of reoffending, or at least presented less of a risk of reoffending than would otherwise have been the case.
- This conclusion was reinforced by the respondent’s wife’s desire to continue to support him as part of the family. That willingness raised the prospect that the respondent’s reintegration into the community as a whole were good. In fact, her support for him went so far as to attend the interview in which her husband made his full confessions to police, and, as has been mentioned, she attended the sentence hearing itself to support him.
- Of course, there is always a risk of reoffending in almost every case; however, as Mr Heelan pointed out to her Honour, the respondent will, in any case, have to comply with the regime imposed upon him as a result of his convictions by the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), and this will reduce the risk that the respondent will commit another sexual offence. At least that is one of the express objects of the Act.
- The reporting and other obligations with which the respondent will have to comply are very onerous and are designed to assist in preventing reoffending by convicted sexual offenders. No submission was made to Judge Sheridan that, in the circumstances of this case and having regard to the respondent’s personal character as discussed, something more severe was required. Nor was there any evidence led by the Crown that could have supported such a submission. For these reasons, the appellant’s submission that there was a failure by Judge Sheridan to address community protection or denunciation as factors in sentencing should be rejected. The appellant has failed to sustain the submission that the sentencing discretion miscarried, and the appeal should be dismissed.
- McMURDO JA: I agree.
- MULLINS JA: I agree.
- SOFRONOFF P: The order of the Court is that the appeal is dismissed.
- Published Case Name:
R v Ruiz; Ex parte Attorney-General (Qld)
- Shortened Case Name:
R v Ruiz
 QCA 72
Sofronoff P, McMurdo JA, Mullins JA
15 Apr 2020