R v Hamstead[1999] QCA 33

McPHERSON JA:  The applicant for leave to appeal against sentence is Geoffrey Hamstead, who was convicted after a trial in the Maroochydore District Court of committing sexual offences on a young girl in the presence of her younger sister.

The offences of which he was convicted, and the sentences imposed in each case, are as follows. In the case of count 1, he was sentenced to imprisonment for six months for indecently dealing with a child under the age of 16 with a circumstance of aggravation. With respect to counts 2, 3 and 4 the sentence was three years' imprisonment, to be suspended after two years with an operational period of three years. That sentence was imposed in respect of acts of indecent dealing with a child under 16, again with a circumstance of aggravation. As regards count 5, the sentence was two years' imprisonment for procuring a child under 16 to commit an indecent act with a circumstance of aggravation. Counts 6 and 8, which were charges of exposing a child under 16 to an indecent picture with an accompanying circumstance of aggravation, attracted a term of six months' imprisonment; and  counts 7, 9, 10 and 11, which charged exposing a child under 16 to an indecent act with a circumstance of aggravation, attracted two years imprisonment.

All sentences were ordered to be served concurrently, which had the result of producing an effective head sentence of three years' imprisonment, which, as I have said, was ordered to be suspended after two years for an operational period of three years.

The circumstances of the offences themselves can be summarised as follows. They took place on two separate days during or over a three-day period in March 1998. The offences involved indecently dealing with a 10 year old in the presence of her seven year sister in the applicant's caravan at a caravan park where he lived.

Count 1 charged the act of rubbing the breasts of the 10 year old child, which he did in the presence of her seven year old sister on 23 March 1998. Two days later on 25 March 1998 the applicant indecently dealt with the older girl again, on this occasion by placing his finger in her vagina, by licking her vagina, and by inserting a cigarette in her vagina. Those were the subject of counts 2, 3 and 4. The offences occurred in the presence of her seven year old sister, which was what gave rise to counts 9, 10 and 11. On that occasion too, the applicant took the hand of the older girl and placed it on his penis, which was charged as count 5. In addition, he exposed the two children to an indecent picture, constituting the charges in counts 6 and 8.

The applicant's personal circumstances are that he was 54 years old at the time of these offences, having been born on 20 August 1944. He had no prior criminal history and he was an invalid pensioner. He had a work record which, in some respects, is intermittent but, generally speaking, was favourable to him on the sentencing application.

In support of the application it is submitted, and I understand it to be conceded by the Crown, that the learned sentencing Judge fell into an error when he ordered that the sentence of three years' imprisonment imposed in respect of counts 2, 3 and 4 be suspended after the applicant had served two years. By doing so, he effectively disregarded or denied the applicant the benefit he would otherwise have had of the opportunity to apply for parole after serving only 18 months of the effective three year head sentence.

In making the order for suspension, the learned sentencing Judge was evidently aiming to ensure that there was some restraint on the applicant when he returned to life in the community, as well, it seems, as attempting to take into account factors of mitigation. However, in adopting that course he acted contrary to the principles adopted in R v. Griinke [1992] 1 Qd.R. 196, which requires that there be special circumstances to justify deferring or postponing the parole eligibility of an offender beyond the statutory halfway mark. The effect of the order, in fact, made in this case is submitted to be akin to that of imposing a head sentence of four years' imprisonment. Whilst it is conceded that a head sentence of three years is not inappropriate for the offences involved in the applicant's conviction in this case, it is contended that four years would be manifestly excessive.

The consequence of all this is that, because of the error in suspending the sentence in that way, it falls to this Court to reconsider the sentence afresh. It is readily possible to find comparable sentences for offences of this kind, ranging from 18 months to three or perhaps three and a half years. A head sentence of three years is therefore not inappropriate, particularly when it is borne in mind that offences of this nature carry a maximum penalty of 14 years' imprisonment. The applicant, in doing what he did, breached his obligation as an adult towards two young children, and he is not entitled to the benefit of any mitigation arising from the proceedings themselves because he did not plead guilty or otherwise demonstrate remorse for what he had done.

In short, there are no special factors calling for leniency in his case, apart perhaps from his prior record which, as I have said, was free from prior convictions, and the state of his health as a result of which he is an invalid pensioner. His health is not such as to justify much, if any, discount by way of mitigation of his penalty. The problems he has are briefly described as involving arthritis and stomach ulcers. There is really nothing to suggest that imprisonment would inflict on him significantly greater hardship than it would on persons of somewhat better health who might anyway have some such problems of their own.

In the circumstances, I would not be disposed to make any special provision in his sentence, for example, by way of recommending that he be considered for parole earlier than he would otherwise be eligible under the statute. In the result, I would, in all the circumstances, allow the appeal to the extent only of varying the head sentence imposed by omitting the order for suspension of the three year sentence of imprisonment imposed on each of counts 2, 3 and 4. Otherwise the sentences imposed should stand.

THE PRESIDENT:  I agree.

WILSON J:  I agree.

THE PRESIDENT:  The order is:  the application for leave to appeal against sentence is granted. The sentence below is varied by deleting the order suspending the sentence of three years' imprisonment after serving a period of two years' imprisonment and declaring that the applicant must not commit another offence punishable by imprisonment within a period of three years if he is to avoid being dealt with for the suspended term of imprisonment in respect of each of counts 2, 3 and 4. Otherwise the sentence below is confirmed.