The Queen v Pearce[1997] QCA 303

COURT OF APPEAL

PINCUS JA

SHEPHERDSON J

WHITE J

CA No 212 of 1997 

THE QUEEN  

v. 

JESSE SPENCER PEARCEApplicant

BRISBANE

DATE 08/08/97

JUDGMENT

WHITE J:  The applicant for leave to appeal against sentence was convicted on his pleas of guilty in respect of six charges on a Commonwealth indictment and 32 counts on a State indictment on 1 May 1997. 

He was charged on the Commonwealth indictment pursuant to section 50BC of the Crimes Act, 1914 with two acts of indecency with a person who was under the age of 16 years between 1994 and 1995 in Thailand and four charges of possession of child abuse photos, two depicting an Asian girl and two an Asian boy, contrary to section 14 of the Commonwealth Classification of Publications Act 1991.

The State indictment covered various dates between 1969 and 1990.  It concerned four counts of indecent treatment of a boy under 14 years, two counts of indecent treatment of a girl under 14, 10 counts of indecent treatment of a boy under 16 years, nine counts of committing an unnatural offence, two counts of permitting an unnatural offence, one count of attempting to commit an unnatural offence, two counts of administering a stupefying drug and two counts of indecent dealing with a child under the age of 16 years.

The learned sentencing Judge imposed sentences of eight years in respect of the indecent acts which occurred outside Australia and nine months each in respect of the possession of child abuse photographs and set a non-parole period of four years.

In respect of the offences on the State indictment, he imposed sentences of nine years each on each of the 12 unnatural offence charges, a sentence of eight years for attempted unlawful carnal knowledge and four years for each of the remainder of the matters on the indictment.  All of the sentences were to be served concurrently.  No recommendation as to parole was made in respect of the sentences imposed on the State indictment.  A declaration as to 339 days in presentence custody was made.

The applicant was born on 20 September 1920 and was aged 76 years at the time of sentence.  The applicant has one previous conviction, namely an aggravated assault on a male child under the age of 14 which occurred on 8 August 1981 for which he was fined $150.  The offence occurred in the course of a great many of the offences which were before the Court on the State indictment.

These offences came to light when the applicant was in Byron Bay in May 1996.  He approached a 14 year old boy in the street and asked him if there were any gay bars in town and told the boy that he was a "good age to get into that sort of stuff".  The boy's father arrived and a complaint was made subsequently to New South Wales police who located the applicant and warned him about his behaviour.  The police officer found certain items in the applicant's bag at his accommodation in Byron Bay and made further inquiries of the applicant's daughter-in-law at her home in a Brisbane suburb where a number of the applicant's belongings were stored.

Those belongings were searched and amongst them was found a small photograph album containing a number of photographs of Asian children including photographs of the applicant with them.  Behind some of those photographs were the four photographs, the subject of the Commonwealth charges.  Two of the photographs depict the applicant engaging in a sexual act with an Asian child which he admitted was attempted sexual intercourse which he was unable to effect.

The applicant had come to Australia in 1996 from Thailand where he had been living for a number of years teaching at a school for deaf children.  After the photographs were found the applicant was contacted by the Queensland Police Child Exploitation Squad and Federal Police and interviewed extensively.  During the interview he admitted that he had frequently gone to Thailand for the purpose of engaging in sexual activity with children and also admitted that he was HIV positive and had been so diagnosed in about September 1993.  Accordingly the indecent acts with the children on the Commonwealth indictment had occurred after he knew that he was HIV positive.

In the course of the interviews with the police the applicant admitted to having been a paedophile since he was about 22 years:  he was able to give some information to the police in respect of the names of three children.  The police interviewed those three who, in turn, gave the names of other boys.  It is unnecessary to set out the detail of these offences, suffice it to say that the first group of offences related to his  depredations upon three children from one family in the late 1960s and early '70s. 

The family of the applicant and the family from whom these children came were friends and it is quite clear that the applicant was in a position of trust with respect to them.  Counts 5 to 30 on the State indictment relate to the corruption and debauchery of a great number of young lads, all around 13, 14 and 15 years of age who were seduced by offers of jobs in the applicant's roadside food van and furniture van and were gradually introduced to pornographic literature and indecent acts.

It would seem that over the many years covered by these offences, a ring of paedophile men was established at the place where the applicant lived who preyed upon these young fellows who, in turn, introduced other boys into the group and, in the case of at least one, he, himself, has become a predator as he became older.  The offences included giving the boys alcoholic liquor so that they became stupefied and more amenable to his advances. 

The offences contained in counts 23 to 26 concerning one particular complainant are quite disturbing.  The complainant was 16.  He was made so drunk that he was violently ill and, after lying down at the applicant's residence, was effectively raped.

The last counts on the indictment concern more recent events in 1990 when the applicant indecently dealt with two young people who were cousins of one of the earlier victims at Mount Tamborine. 

This outline of the offences which was put before the learned sentencing Judge shows a lifetime of depravity and corruption.  The applicant returned to Australia early in 1996 from Asia to obtain cheaper medication for his HIV condition.  As the learned sentencing Judge noted, without the applicant's cooperation with the police, it is unlikely that this long history of criminal conduct would ever have come to light. 

The ground of the appeal is that the sentence is manifestly excessive but the real cause of complaint, as expressed before the Court this morning, is that the applicant's health and age cause him to be quite miserable, particularly suffering as he does from tinnitus and he wishes to be released so that he can seek treatment outside that which is offered to him in the prison system.

In his grounds of appeal he also said that he wished to seek accommodation in a hospice to receive palliative care or to go to an RSL home for the aged.

Not surprisingly as was set out in a medical report before the learned sentencing Judge, the applicant has suffered from bouts of depression and anxiety.  He is said to have feelings of guilt and remorse about his past and the impact that the exposure of his depraved life would have on his family and friends.  He has seven children.

The learned sentencing Judge reduced the head sentence to take account of factors positive to the applicant by two years.  The sentence which he imposed was very much in line with the submissions which were made by his counsel below.  He noted the applicant's age and his poor health but, because he had already reduced the head sentence, he made no recommendation for early release on parole.  It must be said that before us the applicant said that he is not concerned about the punishment itself.

In my view, against the long history of unlawful conduct, including the debauchery of so many children and their subsequent corruption, it cannot be said that the learned sentencing Judge imposed sentences which were outside the range of a sound sentencing discretion. 

If the applicant is to be released on parole prior to the expiration of 50 per cent of his sentence or to receive other medical treatment outside that which is offered within the prison system, in my view that is a matter that can more properly be dealt with by the Community Corrections Board when considering the state of his health at any particular time. 

Mr Ridgway, who appears on behalf of the respondent to this application, has indicated that he will make such representations as seem appropriate consistently with this Court's recommendations to those in authority.  He is to be commended for that positive approach but it seems to me that nothing has been put before the Court which would cause the Court to believe that the applicant is not receiving appropriate treatment for his many disabilities whilst he is within the prison system. 

I note from a document which has been handed to the Court by the applicant that he believes that suitable treatment for tinnitus can be obtained at the Concord and St Vincent's Hospitals in Sydney.  Those are matters which will be taken into account by those persons who consider the condition of his health, including the psychiatrists who no doubt consider his state of mind at any given time. 

In my view there is nothing further to be done by this Court for the applicant and I would refuse the application.

PINCUS JA:  I agree.

SHEPHERDSON J:  I agree.

PINCUS JA:  The application is refused.