R v M[1999] QCA 221

COURT OF APPEAL

PINCUS JA

DAVIES JA

DEMACK J

CA No 63 of 1999 

THE QUEEN 

v. 

M. 

BRISBANE

DATE 16/06/99

JUDGMENT

DAVIES JA: The applicant pleaded guilty in the District Court on 15 March this year to one count of assault, one of taking an indecent photo of a child under 16 who was in his care and under the age of 12, two of exposing children, who were in his care and under the age of 16, to an indecent video, one of exposing a child under 16 in his care to an indecent magazine, one of exposing a child in his care and under 12 to an indecent act, and six of indecent dealing with a child under 16 in his care, one of them with the additional circumstance of aggravation that the child was under the age of 12.

For the offence of assault the applicant was given a two year good behaviour bond, for the other offences, including one of indecent dealing, he was sentenced to two years imprisonment and for each of the remaining five indecent dealing offences he was sentenced to four years imprisonment.

He seeks leave to appeal against those sentences, in particular, of course, against the sentence of four years imprisonment for five of the indecent dealing offences.

The applicant is 62 years of age having been born on 4 November 1936.  He has one previous conviction, in 1972, of indecent assault on a boy to which he was sentenced to six months imprisonment.  He is, and admits to being, a paedophile.

Having said that, and whilst any offence of paedophilia must be viewed seriously, when this case was compared with others in which comparable sentences were given, the conduct of the applicant is by no means at the higher end of the range of seriousness.

Count 1 was described as a fairly minor assault and the penalty bears this out.

Count 2 was simply taking a photograph of the complainant when he was in the shower, the boy then being aged eight.

Count 3 involved the applicant forcing the complainant onto a bed and lying down beside him.  When the complainant looked over his shoulder he saw that the applicant had pulled his penis out of his boxer shorts and the complainant then jumped out of the bed.

Counts 4 and 5 occurred when the complainant was aged 11.  The applicant showed him a pornographic video, then threw the complainant on the bed, put his knee on the complainant's right shoulder and chest, and his left hand inside the complainant's shorts and underwear and masturbated him.  The complainant pushed the applicant off him and left the bedroom.  This was the first count of indecent dealing.

Counts 6, 7 and 8, the last two of which involved also indecent dealing, consisted of the applicant first showing the complainant and three of his school friends, all aged either 11 or 12, a pornographic video.  During the course of this he placed a vibrating massage device on the back of the complainant's thigh and then reached over the bed and pushed the device into one of the other boy's genitals.  The boy ran from the room.

The next count of indecent dealing also occurred when the complainant child was aged 12.  This was count 9 on the indictment.  The complainant woke and found the applicant in his bedroom standing over him, having placed a condom on the complainant's erect penis.   The complainant told the applicant to stop, which he did, and he left the room.

The next count of indecent dealing, count 10, involved the applicant giving the complainant some alcohol to drink and asking him if he wanted a wank.  The complainant said no.  The applicant then pulled the complainant's pants down and tried to roll a condom onto the complainant's penis.   The complainant pushed the applicant away with his foot.  This all occurred when the complainant was 12.

The last count of indecent dealing occurred when the complainant was 14.  Again the applicant gave the complainant some alcohol and he gave him some pornographic magazines to read.  He later forced the complainant onto a bed and put his hand under the complainant=s shorts and masturbated him until the complainant pushed him away.

The complainant to whom I have referred was the grandson of the applicant's brother.  He was at all times under the applicant's care.  As appears from what I have said, all the offences involved him, although counts 6,7 and 8 also involved three of his school friends.

Although a degree of force was used on several occasions, as I have mentioned, the complainant appeared to be able to push the applicant aside and when he did so the applicant desisted.  No attempt was made by the applicant to penetrate the complainant or to simulate anal intercourse with him.  The applicant did not require oral sex from the complainant or administer it to him.  These are merely some of the elements commonly found in cases of this kind which were absent here.

The most serious aspects of this case, in my view, are the relationship of trust, the age of the child and that the applicant=s conduct persisted over a substantial period of time, from 1992 until 1997.  The first offence of indecent dealing occurring in 1994.

Another serious aspect referred to by Mr Rutledge during the course of argument today was that the applicant did not desist in his conduct when he knew that the police were investigating at least the complaint with respect to the taking of the photograph.  The last two offences occurred after that investigation had commenced and the applicant was aware of it.

At the sentence hearing the Crown Prosecutor contended for an effective sentence of two years imprisonment.  The learned sentencing Judge thought that that was plainly too low.  She thought that a sentence of five years imprisonment was appropriate, reducing it to four years only for a number of mitigating factors to which I will now refer.

As appears from what I have already said, the applicant pleaded guilty.  He did not at first admit the offences but pleaded guilty at an early stage, saving the complainant the emotional ordeal of cross-examination at committal and trial.

The applicant has also apparently made substantial efforts to rehabilitate himself.  He recognises his problem and appears to be seeking to do all he can to overcome it.  He has consulted a psychiatrist, Dr Wilkie, whose quite lengthy report was before the sentencing Judge.  The doctor noted that the applicant has removed himself from positions where he has the care of children and has sought treatment.  The doctor thought this condition of paedophilia would benefit from treatment.  I note, however, that he does not say that there is a good prospect that the treatment will be successful.

Other matters were put in the applicant's favour.  He has involved himself in the care of aged people and he has offered to assist the Crime Commission in their work on paedophilia.  References were also tendered from those with whom he had worked, commending his work.

In the Court below both sides referred to Sexton, CA No 238 of 1997, judgment having been delivered on 29 August 1997.  The offender there was a 33-year-old man with a prior criminal history including a conviction for indecent dealing with a child under 12.  On this occasion he was convicted and sentenced on two counts of indecent dealing with two different children; taking an indecent photograph of a child and exposing two children to an indecent video.  He was sentenced to three months imprisonment and three years probation.  Although the offences were of a kind in seriousness, similar to those in the present case, they extended over a much shorter period, only three and a half months.  Undoubtedly, in my view, this case was more serious than that.

A closer analogy is the case of B, CA No 159 of 1996, judgment delivered 11 July 1996.  There the offences involved asking a three and a half year old boy to wash his penis, fondling the boy's penis on several occasions, having the boy touch the applicant's penis, kissing the boy's penis, on other occasions repeating that conduct, and having the boy kiss the applicant's penis.

This, on the whole, as Mr Shanahan for the applicant here submitted, to be conduct rather more serious than that in this case.  The offences occurred over a period of about five years.  The applicant, however, was 26 years of age and had no prior convictions.  A sentence of three years imprisonment with a recommendation for parole after 15 months was reduced on appeal by a reduction of the non-parole period to nine months.  This was because of the applicant's total cooperation, full admissions and ex officio plea as well as, importantly, the fact that he desisted of his own volition, showed genuine remorse and was prepared to undergo treatment.

Almost all of those factors are present here except the desistance in continuation of the offences.  That case, in my opinion, shows that a sentence of five years imprisonment contemplated as the appropriate sentence, before allowance was made for mitigating factors, by the learned sentencing Judge was in fact outside the appropriate range.

In those circumstances the sentence which was imposed, having regard to the necessity to make a reduction in that sentence for the mitigating factors to which I have referred, was in my view outside the appropriate range and this Court should interfere.

In my view also a sentence of three years imprisonment was an appropriate term when consideration is given to the mitigating factors to which I have referred, that is a sentence of three years imprisonment without any additional recommendation for parole, the mitigating factors being taken into account in that sentence.

I would therefore grant the application and allow the appeal to the extent only of substituting for the sentence of four years in respect of counts 5,8,9, 10 and 12 a sentence of three years imprisonment.

PINCUS JA: I agree.  Mr Rutledge, on behalf of the Crown, in his helpful submissions frankly admitted the sentence to be high and the question is whether it was so high as to require correction.  I take into account that, as was mentioned in the course of argument, there was no evidence or indeed submission placed before the Court as to an adverse effect on the principal complainant.  That is a matter which sharply distinguishes the case from some others we have had in this Court.  I agree with the order proposed by Mr Justice Davies and with the reasons His Honour has given.

DEMACK J: I agree with the order proposed by Mr Justice Davies and with his reasons and also with the additional reasons given by Mr Justice Pincus.

PINCUS JA: The orders of the Court will be, application granted; appeal allowed; the sentences imposed in respect of counts 5,8,9,10 and 12 are reduced from four years= imprisonment to three years= imprisonment.