The Queen v H[1999] QCA 396

COURT OF APPEAL

PINCUS JA

AMBROSE J

CULLINANE J

CA No 241 of 1999

THE QUEEN

v.

HApplicant

BRISBANE

DATE 16/09/99

JUDGMENT

AMBROSE J:  This is an application for leave to appeal against sentences imposed in respect of 18 offences of a sexual nature committed upon two male children over a period of about 18 months to which the applicant pleaded guilty on 1 July 1999. 

In respect of each offence to which he pleaded guilty the applicant was sentenced to eight years' imprisonment without any recommendation in respect of parole being made; all sentences were to be served concurrently.

The applicant contends that the sentencing discretion miscarried because the sentencing Judge failed to recommend that the applicant be eligible for parole after serving three years of the eight year sentence imposed. 

It is necessary to refer only briefly to offences to which the applicant pleaded guilty.  The offences were committed, as I have said, in respect of each of two young boys.  The first two counts, one in respect of each of those boys, charged that being an adult the applicant maintained an unlawful relationship of a sexual nature with a child under 16 years, a circumstance of aggravation being that in the course of that relationship he attempted to sodomise that child who was then under 12 years of age.

The period during which the relationship was maintained under the first two counts extended for about 18 months.  Each of those offences attracted a maximum penalty of life imprisonment.  There were 16 other counts, five being indecently dealing with a child under 16 years of age and in each case the child was in fact under 12 years of age. 

There was one count of wilfully and unlawfully exposing a child in fact 12 years of age to an indecent act.  There were seven counts of an attempt to sodomise one or other of the children.  There were two counts of attempting to procure one of the children to sodomise him.  And there was one count of exposing a child to an indecent publication it being a video catalogue of homosexual and heterosexual sexual activities.  Each of those 16 offences attracted a maximum penalty of 14 years imprisonment. 

The applicant gave a statement to police officers on 7 September 1998.  The interview lasted for about one hour and 20 minutes and in the course of this he made very full admissions as to his unlawful activity with the two children and indeed it was this record of interview I think which formed the basis upon which he was sentenced.

I do not propose to analyse in significant detail the many sexual activities which the applicant persuaded the two young boys to participate in with him but it will be necessary unfortunately to make some reference to these activities.  It appears that the applicant was a long-time friend of the father of the children.  The applicant said he first met the boys' father at a time when he, presumably the applicant, was working as a male prostitute in Sydney. 

He did this for a number of years and the two had remained friends every since.  He had apparently a homosexual relationship with the father of the children and according to the applicant the house in which the offences were committed which was that occupied by the father and mother of the children was the source of a great deal of discussion about sexual matters in the presence apparently of the children and he said that the children had the opportunity of observing considerable video recorded pornography at the home and in fact when he went to live in the house with the family the two boys commenced to ask him about sex and he said that their requests for advice about this led him to commence his unlawful activity with them.

He first moved in to the house where the children lived in about March 1997 and he stayed there continuously until Christmas of that year.  It was during this first period of nine months that the relationship was established with the children and the sexual malpractices to which he pleaded guilty commenced.

He then left the house for about three months for domestic reasons and returned in about March 1998 and he continued to reside there until September 1998.  It was during this second period of time that he spent with the children he resumed his sexual activities with them and it is against this background that counts 1 and 2 of the indictment must be understood because they assert that the maintenance of the unlawful relationship of a sexual nature lasted for the period March 1997 to September 1998.  The other instances of sexual activity are specified by months and so on and I think it would be unhelpful to descend to particularise those matters.

It emerges from the material and it was really not contested either at the hearing or upon appeal that the applicant had been sexually active from about age 12 and that indeed he had acted as a male prostitute in Sydney between the ages of 15 and 17.  He had then acquired a drug habit unsurprisingly.  He said that he had had sexual activities as a male prostitute with about 7,000 men in that period of two years and it was apparently at that time or roughly that time that he met and became friendly with the father of these unfortunate children who he later abused.

The nature of the activity upon which the offences to which he pleaded guilty were based, I suspect, simply as examples, was summarised really by the applicant in his record of interview.

He was asked how this activity started and he said it started with one of the children asking him, "How do you do sex?"  That child was the one, I think, who was between seven years and nine years over the 18 month period to which I have referred.

He said that he tried to show him how sex works and then embarked upon demonstrations and became involved with the child in oral sex, anal sex, showing the child how to masturbate, having oral sex with him, masturbating himself at the same time and so on.

At about the same time as he was doing this with the elder boy, he started to engage in similar activities with the other boy, who was a couple of years younger than the elder one.  The applicant said that he was a person who talked a lot about sexual matters among adults, and another of the acquaintances of the applicant and the children's father, who stayed at the house for a time, also apparently talked about matters relating to sex.

There is a long and detailed record of interview in which he details just how often and the circumstances in which he engaged in these activities.  He did it in his bedroom in the house occupied by the family.  He said, for example:

"It was sort of like it would be Monday J, Tuesday, C and then five days doing nothing."

The applicant encouraged each of the children by having the child's penis inserted in his mouth until he reached an erection and then engaging in various other activities around the child's testicles and so on.

He said he also showed the children how to masturbate and he used to do it with them.  He said the elder boy became inquisitive and seemed to want to learn more about participation in these activities and he said he conducted

"Something like advanced masturbation class, I suppose, like I'd get his penis erect, I'd give him oral sex, masturbate his penis and then masturbate my own as well."

Well, as well as those sorts of encounters that he had with each of the young children over the periods to which I have referred, he also attempted with respect to each of them to effect sodomy, effect penetration of the anus.  To assist him in doing this he used saliva as a lubricant but he was unable to effect penetration.  No doubt the age of the children and the size of their anus had something to do with that.

In any event, he kept on trying to penetrate each of the children over these periods to which I have referred, as well as perhaps to encourage them, or for some reason, he also used to lick the anus of the children from time to time.

The children, according to him, became quite used to this sort of activity and used to come into his room to him and pull out their penises which were erect so he might continue to educate them in this fashion.

At the end of the first period to which I have referred, which was in about Christmas 1997, apparently the mother of the two young boys approached the applicant and said that she had learned that he had been engaging in sexual activities with her children and asked him not to do it again.

The applicant volunteered the information that he thought the boys had been caught "mucking around with" each other.  The mother asked them why and apparently they told her that the applicant had been showing them these things.

Apparently at this stage, this was before the applicant left the house at Christmas time 1997, the mother was satisfied with his promise not to do that sort of thing again with the children and said that if the boys were going to play with him again, he would have to keep the door open.

The applicant said that in late May or early June he got some video catalogues.  This was, as I read it, May or June 1998.  He said that he showed the younger child the video catalogues and to use his words:

"Just instigated the same behaviour as before, tickling and oral sex."

He said that the catalogues that he placed before the younger boy and later the older one basically showed men having anal sex with each other and masturbating and having oral sex and women using toys and vibrators and men having sex with women.  The display of this erotica to the children, to use his words "instigated them" to resume the sort of activities to which they had been introduced before Christmas 1997.

Well, I do not know that it would be helpful to analyse in more detail the activities which constituted the offences to which the applicant pleaded guilty.

For the Crown, it is said that comparable cases for sentences for this sort of activity are Meuller, CA 137 of 1996, and Morrison, CA 314 of 1993. 

For the applicant the cases referred to were S, CA 234 of 1998; Smith, CA 172 of 1998 and Fattoretto, CA 31 of 1998.

In my view, the activities in respect of which the applicant in this case was sentenced could have supported a higher sentence than one of eight years.  It involved, not just the applicant's gratification of his own abnormal and perverted tastes, it involved, more importantly, a concerted and deliberate effort to corrupt the children at a very young age which unfortunately seems to have succeeded. 

I would assume that the children will both have a very great hurdle to overcome in developing and maintaining a stable relationship domestically as they grow older.  One of the children, according to the material placed before the learned sentencing Judge, has already demonstrated great difficulty socially with other children and it has had, it is said, an effect on the family relationships.

In my view, there is nothing that can be said to support the contention that in failing to make a recommendation for parole after the applicant has served three years in custody there was such a miscarriage of the sentencing discretion that this Court would be justified in interfering.  I would dismiss the application.

PINCUS JA:  I agree with Mr Justice Ambrose's description of the offences and the circumstances attending them.  It is  my opinion that, even having regard to the lack of previous convictions and the extent of the applicant's cooperation, the sentence imposed was a proper one and I would dismiss the application.

CULLINANE J:  I agree with what both of the other members of the Court have said and, in my view, the application should be refused.

PINCUS JA:  The order of the Court is that the application be refused.