The Queen v Wain[1998] QCA 267

COURT OF APPEAL

McMURDO P

THOMAS JA

MACKENZIE J

CA No 178 of 1998

THE QUEEN

v.

BRIAN WAIN (Applicant)

BRISBANE

DATE 04/08/98

JUDGMENT

THE PRESIDENT:  This is an application for leave to appeal against a sentence imposed in the District Court, Cairns on 13 May 1998.

The offence to which the applicant pleaded guilty was one of indecent dealing with a boy under 17 years. The offence occurred 11 years ago. At that time, the maximum term of imprisonment for that offence was five years.

The applicant was 42 at the time of the offence and is now 56 years of age. He was sentenced to nine months' imprisonment. The circumstances were that the applicant had advertised for a high school boy to mow lawns and do odd jobs and the complainant boy commenced this work on 21 February 1987. The boy came to the applicant's house again the next day when the applicant massaged his back and his bottom through his underpants and removed the complainant's underpants and rubbed his penis for about five minutes.

As the learned sentencing Judge noted, the offence is regarded as serious and was, at the time, regarded as serious. It was an offence of an adult using a young person for his own sexual gratification. His Honour noted, correctly, that it was clearly a premeditated offence, the applicant having on another day offered to show the complainant boy pornographic movies. His Honour also noted that it was not the worst kind of sexual offence but that it was nevertheless serious.

The applicant fled the jurisdiction shortly after his arrest about 11 years ago and in New South Wales became involved with corrupt police officers. He gave evidence against police officers in three trials in New South Wales relating to police corruption, and, fearing for his life, then fled Australia. The Crown, at the sentence, conceded these facts.

The applicant returned to Australia in impecunious circumstances, having surrendered himself to an Australian overseas embassy. He was remanded in custody from 5 February 1998. On 23 February 1998 he was sentenced in the Magistrates Court for an offence of possession of obscene publication and breach of bail, receiving sentences of three months and nine months respectively. These offences were directly connected to the offence which concerns this court. The bail sentence must, pursuant to the Bail Act, be served cumulatively upon other sentences.

The applicant had no prior convictions and has not been convicted of any offences subsequently.

There is no suggestion that any force, threats or coercion were used in the commission of this offence. On the other hand, the applicant was in a position of power over the complainant child as he was employing him and as has already been noted, it was premeditated.

The learned sentencing Judge took into account the cooperation with police authorities elsewhere, in imposing the sentence he did.

There is no doubt that a sentence of nine months' imprisonment for an offence of this type, even in 1987, was well within the range of an appropriate sentencing discretion. However, this Court must take account of the total effect of the sentence that must be served by the applicant as a result of his conduct in February 1987.

Because of the requirement that the bail sentence must be served cumulatively, the applicant, in effect, was sentenced to a term of imprisonment of 18 months. The learned sentencing Judge does not seem to have fully taken into account the fact that the bail sentence will be cumulative upon the nine-month sentence imposed by him for this offence. In those circumstances, whilst the sentence imposed by the learned sentencing Judge in itself was well within the range, the total sentence that must be served by the applicant is, in my view, excessive. It is appropriate that the sentence of nine months imposed by the learned sentencing Judge should be suspended after three months with a two-year operational period.

I would allow the appeal, set aside the sentence imposed below and impose a sentence in the same terms imposed below, save that it is suspended after three months, with an operational period of two years.

THOMAS J:  I agree.

MACKENZIE J:  I agree.

THE PRESIDENT:  That is the order of the Court.