The Queen v L[1998] QCA 385

COURT OF APPEAL

THOMAS JA

SHEPHERDSON J

JONES J

CA No 262 of 1998

THE QUEEN

v.

L

Applicant

BRISBANE

DATE 09/10/98

JUDGMENT

SHEPHERDSON J:  The applicant seeks leave to appeal against sentences imposed on 23 July 1998 in respect to the following two lots of offences.

Lot 1.Two offences committed between 31 October 1994 and 1 February 1995. 

The first was an indecent dealing with A, a child under the age of 12 years for which he received four years' imprisonment.

The second offence in the first lot was of exposing K, A and R, who were children under 16 years, to indecent material for which he received 18 months' imprisonment.

Lot 2.Three offences committed between 25 December 1996 and 29 December 1996.

The first was of indecent dealing with K, a child under 12 years of age, for which he received four years' imprisonment.

The second was of attempted indecent dealing with K, a child under 12 years of age, for which he received two years' imprisonment.

The third was of exposing R, a child under 16 years of age, to indecent material for which he received 18 months' imprisonment.

The three children were all from the same family.  K was born 21 February 1986, A on 9 February 1983 and R on 1 April 1982.

K was eight at the time of the first lot of offences and 10 at the time of the second lot.  A was 11 and 13 at the respective times and R, 12 and 14 at the respective times.

The offences were committed at a coastal town.  As to the circumstances, the applicant knew the family of the three complainants.  They were allowed to visit him and he was allowed to take them fishing.

In relation to the first count, the applicant had invited the family of the complainants over to his house for a barbecue.  At one stage, the three children were sent to the caravan because they were making too much noise.

The applicant went down to the caravan and showed the complainants some second-hand, indecent material.  It was described by R as including diagrams of adult males and females in various sexual positions.

Shortly after that, he got the complainant, A, to lie on a bed between himself and her brother R, and then put his hand into A’s pants.  Before this, he told R that this was the way he, R, would touch his sister.  After he put his hand down A’s pants, he pulled it out and told R he should try it with her.  

The third and fourth charges occurred during a Boxing Day visit in 1996 to the residence of the children's parents.  On that day, K asked the applicant if they could go fishing and R wanted to accompany them.

On the way to the fishing spot, the applicant gave the two children some wine to drink.  When they arrived at the fishing spot, it was a windy day.  The applicant suggested that K come with him to a more sheltered area than where they were.

When they got there, the applicant grabbed K by the left arm and started to touch her by inserting his hand inside her shorts and down her panties.  She resisted but he eventually got his hand inside her panties and pressed on the outside of her vagina.  She said this hurt.

He then exposed his penis by pulling his shorts aside and asked her to touch it.  She said no, and he took her by the wrist and moved her hand towards his exposed penis, and at this stage she kicked him with her heel in her struggles to escape.  He let go of her and she was able to walk off and the incident finished.  They returned to where R was.

The fifth charge involved the applicant showing R a Penthouse magazine, a Picture magazine and some joke books.  The Penthouse contained photographs of women with their vaginas exposed.  The joke books included jokes of a sexual nature.  This occurred approximately two years, as I have said, after the first two charges and was on the occasion of the visit on Boxing Day.

Later, K told her sister who then told her parents and the police were involved.  The applicant denied any impropriety in relation to the incident and he had given K a small amount of money not to tell her parents.

On 16 February 1998, the applicant was tried before a District Court Judge and jury on the first lot of charges and was found guilty on the same day.  After a short adjournment, he then pleaded guilty to the second lot of charges.

The learned sentencing Judge ordered pre-sentence reports and was provided with reports from a psychiatrist, a psychologist and a Community Correction officer.  In each of the reports, although the applicant had been convicted on both of the first two charges and had pleaded guilty to the remaining three, he denied involvement and said he was the victim of a conspiracy.

There was no sympathy shown any of the victims.  He attributed malice to them in telling these stories.  He denied that he had any problems and claimed because he was impotent he could not have committed the offences.  None of the offences involved an allegation that he had an erect penis.

The learned sentencing Judge's comments began:

"I am satisfied that for these purposes this prisoner represents an unacceptable risk to young people.  He is fully aware of what constitutes proper sexual behaviour and chooses to ignore this known standard of behaviour.  He refuses to acknowledge his propensities or his guilt in regard to the counts upon which he was found guilty by the jury and those in respect to which he pleaded guilty.  I think that there is an unacceptable possibility of recidivism in his case.  The psychological report suggests that he may respond to treatment, but the psychiatric report suggests otherwise given his refusal to acknowledge his condition.  His behaviour suggests that he is in fact a conniving offender who must be kept out of harm's way.  His calculated and brazen perpetration of these several offences and the fact of his twisted personality suggest that we have to take his case very seriously."

His Honour said he chose imprisonment as the only course, and after making comments concerning the Parole Board being in the future better able to assess the situation and the need for the applicant to go on a program in custody His Honour said, "The immediate task in this case is to protect children."

Mr Meredith, who appears for the Crown today, submits that the four-year sentences imposed are at the top of the range of appropriate sentences. 

The applicant does have a prior criminal history which consists of an offence of assaulting a female in 1974 for which he was fined $50.  The pre-sentence report shows this assault was apparently on his step-daughter, who was then aged about 18 years.  The learned sentencing Judge does not appear to have regarded this history as relevant in the sentencing process, and this approach appears correct.

The applicant has a number of contentions.  It is necessary to refer to one only, and that is that the learned sentencing Judge's exercise of the sentencing discretion miscarried because His Honour, when imposing the sentences of four years, went beyond sentencing for the criminality of the offences and imposed an element of preventive detention.

Mr Glynn SC, his counsel, relied on R v. Aston (No 1) [1991] 1 Qd R 363, and The Queen v. Veen (No 2) (1988) 164 CLR 465.  In my view, the learned sentencing Judge did err when exercising the sentencing discretion by saying, "The immediate task in this case is to protect children," and, "His behaviour suggests he is in fact a conniving offender who must be kept out of harm's way."

The applicant was entitled to be sentenced for the criminality of his conduct, of which he had been found guilty and pleaded guilty.  The above comments of the learned sentencing Judge have left me with the clear impression that the four-year sentences imposed contained a component which went beyond a sentence proportional to the criminality of his conduct and included an element of imprisonment to protect children in the community, in other words, preventive detention.

The applicant was, in effect, being punished in part for crimes against children which the Judge thought he might commit in the future, and such a course is impermissible.  In light of the error which I have mentioned, it falls to this Court to exercise afresh the whole of the sentencing discretion.

Mr Meredith submitted that the sentence in the present case should be governed by the decision of this Court in R v. McKillop (CA 263 of 1997 - an Attorney-General's appeal in which judgment was given on 6 August 1997).  In that case, McKillop was guilty of a reprehensible and persistent attack on a protesting little girl.  She was 8 years old.  A sentence of 18 months suspended after four months was increased to four years and six months with a recommendation that he be considered for parole after 18 months. 

The offence in McKillop was far more serious than either of the indecent dealings with the child K.  In McKillop, the child protested McKillop's advances and tried to run away but was held.  She cried and screamed for help.  He slapped her across the face and held her on a bed.  Further slaps ensued and ultimately the child took her trousers off because McKillop threatened to hit her.

When the child was medically examined, there were marks and a lesion on her face.  Genital examination revealed bruising and spot haemorrhaging and tenderness.  In my view, the offence in McKillop is much more serious than the present applicant's offences.  The present applicant did not persist with his conduct on either occasion.  There is no doubt that the present applicant's offences upon these children abused a confidence and trust placed in him by the children's parents. 

Mr Glynn has submitted in argument that a head sentence of one year suspended after nine months with an operational period of four years is appropriate.  I have set out the circumstances of the applicant's offences.  His very late pleas of guilty to three offences do not, in my view, entitle him to any benefit in the sentence.

The applicant has exhibited lack of remorse, and this is a matter which is not in his favour.  As opposed to that, he appears to be in poor health and appears to have a heart condition.  He was 49 years old when sentenced.

I would make the following orders:

(1)Give leave to appeal against the sentences.

(2)Set aside the sentences imposed in respect of each offence and in lieu substitute the following:

(a)For the offences of indecent dealing with a child under 12 years - 12 months imprisonment suspended after having served nine months with an operational period of four years.

(b)For the offence of attempted unlawful and indecent dealing with a child under 12 - nine months imprisonment.

(c)For the offences of exposing the child/children to indecent material - three months imprisonment.

I would declare, as the learned sentencing Judge did, that the applicant has served 147 days of the sentence from 16 February 1998 to 23 July 1998.  In the circumstances now existing, I do not see any need to repeat the learned sentencing Judge's recommendation that the applicant be given such psychiatric or psychological treatment as may be appropriate in his case while he is in custody.

THOMAS JA:  It seems clear from the learned sentencing Judge's remarks that the sentences were strongly influenced by His Honour's perception of the applicant's potential to reoffend rather than by the circumstances of the offences of which he was convicted.  His Honour was plainly affected by the psychologist's reports, which were very much based on the applicant's refusal to admit the offences.  The applicant's attitude was taken to render him unsuitable for future remedial programs. 

There was an error in principle in that the sentences were based more on the need for a preventative detention which would avoid future offences than upon punishment for what the applicant had actually done.  It therefore falls to this Court to resentence.

The circumstances that pertain to this task include the fact that he has no previous convictions except a distant offence in 1974 which does not appear to have been of any particular seriousness.  The circumstances of the offences show that the applicant did not persist with his advances on either occasion.  They reveal a low level of invasiveness which was successfully resisted, and he was easily dissuaded on each occasion by the children concerned.

He suffers from heart problems and diabetes and has served eight months of the sentences which were imposed upon him. 

On the other hand Mr Meredith for the Crown emphasised the applicant's lack of remorse and submitted that the children were seen by him as objects.  He also referred to the abuse of position of trust accompanied by some degree of calculation.

Taking all the circumstances into account, I agree with the response which has been proposed by Mr Justice Shepherdson, which will lead to his release in approximately one month and will contain a very strong incentive for him to avoid any conduct of this kind for a considerable period.  I also agree with the remarks made by Mr Justice Shepherdson in reaching that conclusion.

JONES J:  I agree with the remarks of the presiding Judge and of Mr Justice Shepherdson, and I concur on the orders proposed.

THOMAS JA:  The orders will be those as stated by Mr Justice Shepherdson.