The Queen v Ruhland[1999] QCA 430

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 147 of 1999

Brisbane

[R v Ruhland]

THE QUEEN

v

HENDRIKUS JOSEF RUHLAND

(Appellant)Applicant

de Jersey CJ

Byrne J

White J

Judgment delivered 15 October 1999

Separate reasons for judgment of each member of the Court, Byrne & White JJ concurring, de Jersey CJ dissenting.

APPLICATION FOR LEAVE TO APPEAL GRANTED

APPEAL ALLOWED TO THE EXTENT ONLY OF REDUCING THE SENTENCE IMPOSED FOR COUNTS 14, 23 AND 31 TO 13.5 YEARS. SENTENCES BELOW OTHERWISE CONFIRMED. ALL SENTENCES TO BE SERVED CONCURRENTLY

1. de JERSEY CJ:  I have had the advantage of reading the reasons for judgment prepared by White J with which Byrne J agrees.  I regret to have to say that I feel constrained to differ from my colleagues in this matter.

2. I consider the applicant’s offending fell into the “worst case” category for this species of crime.  It involved as many as eight counts of maintaining a sexual relationship with a boy under 16 years of age, three of them with the aggravation of anal carnal knowledge, 98 separate offences committed over about 5 years, with 12 boy victims aged between 10 and 15 years, most of them around the 12 to 13 year mark.   The applicant had prior convictions for serious similar crimes, in those instances involving five boys, for which he had been sentenced to a substantial term of imprisonment, six and a half years.   It was as soon as he was then released from prison, in April 1992, that he commenced to reoffend similarly, hence these charges.  He operated within a group of four men who used the same boys for sexual gratification.

3. The learned sentencing judge appears likely to have shared that view.  He considered the applicant “an absolute danger to young boys ... (his) appetite for them (had) been insatiable ... (he) operated in a group of paedophiles and (he) made it (his) business to collect, by various ruses, a number of impressionable under-privileged boys.  (He could) only be seen as a chronic child molester.  (He had) a very strong tendency to corrupt children.”

4. The judge saw it as a case “quite beyond the usual run of cases like this because of the number of offences involved and the number of young boys affected by (the applicant’s) conduct.” He observed that “it is one thing to consider more usual cases where one or two children are involved, cases in which there are, say, four or five counts on the indictment of indecent treatment of various kinds and quite another to try to come to terms with the enormity of (this applicant’s) behaviour over such a long period of time.”   His Honour was also rightly strongly influenced by the circumstance that the applicant had already served a period of imprisonment for  very similar offences, reoffending in like manner so soon after his release from prison.

5. Contrasting the essentials of this case with the others to which we were referred points up its extreme gravity, and I consider also supports the 17 year term of imprisonment imposed.  Simpson (CA No 461 of 1998; 7 May 1999) was sentenced to 12 years imprisonment for his dealings with five boys (here 12), including two maintaining counts (here 8), and unlike this applicant, he had no prior history.  G (CA No 380 of 1997; 21 November 1997) committed two maintaining offences (here 8), unlike this applicant operated alone, had only minor previous convictions, committed no act of anal penetration (here many), and was sentenced to 12 years against a maximum of 14 years - here the relevant maximum was life.  Even allowing for the element of violence in G, the contrasting circumstances of this case put it into a graver light.  Kingwill (CA No 75 of 1993; 13 May 1993) was sentenced to 10 years for his dealings with only one boy, there also being only one maintaining count.  H (CA No 110 of 1996; 5 June 1996) was sentenced to 12 years for offences, including one count of maintaining, against two children only.  M (CA No 137 of 1996; 2 August 1996) committed three offences of maintaining.  He had no previous convictions.  He was sentenced on appeal to 10 years, but family considerations appear substantially to have moderated the penalty.

6. Notwithstanding the important mitigating features in this case – especially, the plea of guilty, co-operation with authorities, and the absence of violence or manifest coercion – the case does I believe fall into the worst category.  I repeat what was said by Wanstall SPJ, as he then was, in R v Manson (1974) Qd R 191, 202:

“It would ... be difficult to imagine a worse case ... I am not in the least attracted by the argument that the maximum penalty should never be imposed because the sentencing court cannot be sure that some day there will not be a worse case.  Though that may be true, it is irrelevant.  This case is bad enough to justify the imposition of the maximum penalty – its evil is sufficient unto this day; let the morrow take thought for the things of itself.  If its case should be even more evil the precedent of this case will be relevant and helpful.”

See also R v Tait & Bartley 24 ALR 473, 484-486. 

7. I should say that I find it difficult to draw much assistance for present purposes from the treatment accorded Bell by the New South Wales District Court, sentencing him on 12 February 1999 (No 0548 of 1997), since Bell was not charged with an offence akin to maintaining an unlawful sexual relationship, and notwithstanding cumulative terms, he was sentenced against a relevant maximum of 10 years.

8. I accept the submission of Mr Winn, for the Crown, that “this case is ‘bad enough’ on any view, by its nature and the applicant’s participation in it, to lead to a sentence which, if not the maximum, must approach closely the maximum”.  Mr Winn in my view appropriately described it as a case of “serial and methodical child molestation”, justifying an unequivocally deterrent sentence.  In my opinion the case did warrant imposition of the maximum penalty, life imprisonment.  That being so, I do not consider the sentence of 17 years, which was imposed, to have been manifestly excessive.

9. I would refuse the application.

10. BYRNE J:  I agree with White J.

11. WHITE J:  The applicant for leave to appeal against sentence pleaded guilty in the District Court at Brisbane on 9 April this year to numerous sexual offences against boys.  Many other offences against the same complainants were taken into account on sentence pursuant to s 189(1) of the Penalties and Sentences Act 1992.  The applicant was sentenced on that day to 17 years’ imprisonment for each of three offences of maintaining a sexual relationship with a child under the age of 16 years with a circumstance of aggravation, namely, carnal knowledge by anal intercourse and lesser terms of imprisonment for the other offences.  No recommendation for eligibility for parole was made.  A further aspect of the sentence was an order pursuant to s 19 of the Criminal Law Amendment Act 1945 that for a period of 10 years after his release the applicant must provide the Commissioner of Police with his address and any change of address.

12. The first two counts related to two offences of indecent dealing with a child under the age of 14 years between December 1976 and June 1977.  The other offences occurred between April 1992 and September 1996 and involved eight counts of maintaining a sexual relationship with boys under the age of 16 (three with the aggravating circumstance of anal carnal knowledge), twenty-one counts of specific acts of indecent dealing, five counts of indecent treatment of a child under the age of 12, five counts of unlawful anal intercourse as well as forty-five acts of indecent dealing, one act of exposure of a child to an indecent act, two acts of anal intercourse and nine acts of permitting anal intercourse which were s 189 schedule offences taken into account on sentence.  There were 98 offences in all.  The conduct involved twelve boys between the ages of 10 and 15 although the preponderance were aged around 12 to 13 years.

13. The applicant was born on 9 July 1945 and was aged 53 at sentence.  He was aged 31 when he committed the first offences and between 46 and 51 for the remainder.  The offences of indecent dealing with a child under the age of 16 (21 counts) and count 36, exposing a child under the age of 16 to an indecent act, attracted sentences of 3 years’ imprisonment.  The maximum penalty is 5 years’ imprisonment.  The four counts of indecent dealing with a child under the age of 12 attracted sentences of 8 years’ imprisonment.  The maximum penalty is 10 years’ imprisonment.  The counts concerning the maintenance of an unlawful sexual relationship with a child under the age of 16 (5 counts) and permitting carnal knowledge by anal intercourse by a male under the age of 16 (3 counts) and sodomy (2 counts) attracted sentences of 10 years’ imprisonment.  The maximum sentence is 14 years’ imprisonment.  The three counts of maintaining an unlawful sexual relationship with a child under the age of 16 with the aggravating circumstance of anal intercourse attracted terms of imprisonment of 17 years.  The maximum sentence for that offence is one of life imprisonment.  All the sentences were to be served concurrently.

14. The prosecution tendered a fifteen page schedule of offences and summary of facts to support each offence, including the s 189 offences, arranged chronologically and by reference to each complainant (R54-68).  That document was settled in conjunction with the legal representatives of the prosecution and defence as well as the applicant himself.

15. The applicant has previous convictions for similar offences.  On 27 May 1988 in the District Court he pleaded guilty to three counts of indecent dealing with a boy under the age of 14 years, three counts of indecent dealing with a boy under the age of 17 years, four counts of anal carnal knowledge and one count of attempted procuration of an act of gross indecency.  A sentence of 6½ years’ imprisonment was imposed in respect of the carnal knowledge offences and lesser terms to be served concurrently were imposed for the other offences.  Those offences involved five boys aged between 10 and 15 years.  The applicant did not participate in a sex offenders’ programme whilst in prison.  There is no evidence that he was ever offered such a programme.  He never received parole and was released without supervision on 16 April 1992.

16. At the time of the 1988 offences the applicant was associating with one Manning who was a younger man of about 29 years who was also convicted of offences against boys at about the same time.  Manning was released from prison earlier than the applicant and the applicant went to live with him after his release.  The applicant met one Neville Briggs, a sex offender, in prison and he became sexually involved with some of the present complainants.  The prosecutor below used the expression “paedophile ring” when referring to these men.  This was objected to by defence counsel on the ground that such an expression tended to be associated in the public’s mind with an organised group who used the Internet and/or had international connotations.  That was not the case here, but however described, the men used the same boys for sexual gratification and introduced them to each other.

17. Briggs and Manning were sentenced prior to the applicant by different District Court judges in respect of sex offences committed during the period of these present offences and against some of the same complainants.  Manning was charged with indecent dealing and exposing a child under the age of 16 to indecent acts in respect of three complainants and sentenced on 29 October 1997 to a term of imprisonment of 8 years.  Briggs was initially charged with offences against one complainant only and sentenced to a term of imprisonment of 4 years.  He was subsequently charged with offences against two other complainants and given a cumulative sentence of 3 months on the 4 years.  None of the offences involved anal intercourse.

18. The two offences in 1976/7 concerned a 12/13 year old complainant who had been introduced to the applicant by other boys.  The prosecutor below conceded that had these offences been known at the time of the 1988 sentence a concurrent sentence would have been imposed.  The offences involved mutual masturbation and oral sex.

19. Manning’s house was a place where boys would congregate to watch television and socialise.  He and the accused subsequently moved to other accommodation.  It too became a place for boys to go who wanted to “wag” school.  Television, videos and video games as well as the kind of food that adolescent boys like was readily available.  Many of the boys were introduced to the applicant by other boys who came there knowing that the applicant “gave erotic massages”.

20. The sexual activities with the boys involved massaging, mutual masturbation, mutual oral sex, anal sexual intercourse and permitting boys to have anal sexual intercourse with the applicant.  Sometimes two or more boys participated in the sexual activity.  On occasions the applicant paid the boys money for sexual favours or gave them gifts.

21. Shortly after being released from prison Manning introduced the applicant to the complainant PJ who was then aged 13.  The relationship continued until mid-1993 when PJ turned 15 after which time he commenced a relationship with Briggs although on occasions he continued to engage in sexual conduct with the applicant.  The offences involved massages, mutual masturbation and oral sex.  On some occasions other boys participated.

22. The complainant JB was introduced to the applicant by Manning.  The applicant maintained a sexual relationship with him from about April 1992 until mid-1993.  He was aged between 13 and 15 years during that period.  The offences involved mutual masturbation and oral sex and on some occasions other boys were present and participated in the activities.  That complainant said that the applicant told him that he would go to the public toilets near the local school and “window shop” the boys when school was dismissed.  JB would visit the applicant regularly when “wagging” school.  Their relationship came to an end when the applicant moved.

23. The complainant JB introduced the complainant IL to the applicant shortly after he was released from prison.  IL was told that the applicant’s house was a good place to go and “wag” school.  The applicant commenced a sexual relationship with IL which continued until mid-March 1995.  The boy was aged between 13 and 15.  The relationship began with massages and progressed to mutual oral sex, masturbation and sodomy.  At one point IL left his home and came to live with the applicant who pretended that he was his son.  He dealt with the boy’s teachers at school and applied for and received payments from the Department of Social Security for looking after the boy.  The applicant purchased a $1250 bicycle for IL and from time to time this debt would be paid off by the complainant with sexual favours.  Anal sex took place on about twenty occasions.

24. The applicant met the complainant LB through his older brother JB shortly after the applicant was released from prison.  He maintained a sexual relationship with him until the middle of the following year.  LB was 10 when the offences commenced.  The indecent activity involved massages, mutual oral sex and sometimes involved other boys.

25. The complainant AS was introduced to the applicant by IL.  Their sexual relationship commenced in September 1993 when he was aged 12 continuing for about three years.  The offences involved mutual masturbation and oral sex and the applicant permitting AS to have anal sex with him.

26. The applicant met SM at a public lavatory in Woodridge in January 1994.  SM was then aged 12 years.  They exchanged telephone numbers and the same evening the applicant telephoned and invited the boy home which he accepted.  The applicant massaged SM, engaged in mutual masturbation and oral sex with SM alone and with other boys.  For a time SM came to live in the applicant’s house.

27. The complainant RK met the applicant at the applicant’s home early 1995 when he gave a birthday party for IL.  He was aged between 13 and 14 when he first met the applicant.  The sexual relationship continued until September 1996.  The offences involved mutual masturbation, oral sex and sodomy.  The applicant introduced him to Briggs and Manning.  On occasions the applicant paid RK for the sexual encounters.  For a period he resided with the applicant who then received Department of Social Security payments for looking after him.

28. The complainant GK was introduced to the applicant by a friend in about mid-1996.  That sexual relationship continued only for a few months.  He was aged 14 when the offences were committed.  Indecent activity took place regularly on weekends and involved massage, masturbation and oral sex.  One occasion involved the applicant, Manning and the complainant in the spa together when indecent touching occurred.

29. The complainant RW met the applicant through other boys who visited the house.  He was aged 11 when an act of oral sex occurred in the presence of the next complainant FC.  That complainant was about 11 when the applicant performed oral sex on him in his bedroom while others were present.

30. The final complainant, LD, was aged 15 at the time the applicant met him through another boy.  He gave him a massage and oral sex and then about a month later another massage occurred involving oral sex.

31. These offences came to light when a 16 year old boy, who had fallen out with his parents, needed somewhere to stay and approached the applicant who gave him accommodation and food.  After some days the applicant wrote the boy a note indicating that he wanted to give the boy a massage and that the boy was to wear no clothes to bed for the next few nights.  This note came into the hands of police who had been carrying out a covert operation in the area targeting a paedophile network involving the sexual abuse of male youths.  An affidavit made by Detective Chief-Superintendent RD Pickering tendered by the prosecution in the course of the sentence hearing indicated that the applicant had taken part in a police interview and given the names of possible complainants who may have been abused by already identified targets.  Detective Pickering concluded that although the operation would have been otherwise successful the applicant’s information helped police to confirm what they knew.

32. The applicant was arrested and remanded in custody on 19 September 1996 until he was sentenced.  There was a full hand-up committal and cooperation in the preparation of the statement of facts as well as the preparation of the s 189 schedule.  The prosecutor below acknowledged that there were inconsistencies within each of the complainants’ statements which could have been explored had the charges gone to trial.  There was no suggestion by the prosecution that any violence or manifest coercion against the complainants had occurred, nonetheless the conduct the subject of the criminal charges was seriously unlawful and corrupting.

33. The prosecutor contended that this was a situation where cumulative sentences could be imposed but in order to give some recognition to the totality principle submitted that life imprisonment was appropriate.  The learned sentencing judge observed that but for the pleas of guilty and cooperation with the police the appropriate head sentence would have been 20 years to reflect the overall criminality of the applicant’s entrenched behaviour.  He deducted three years for those mitigating factors.

34. The applicant had been subjected to a homosexual encounter by an adult neighbour in early childhood which led to a sexual relationship lasting about eight months.  The applicant moved with his family from Holland to Australia when he was 12.  He left school in grade 8  and worked for one company as a storeman and packer and forklift driver for 15 years.  Thereafter he was in employment with the same employer for 5 years following which he was a bus driver with the Brisbane City Council for 14 years until 1986.  When the applicant was released from prison in 1992 he was out of work for about 18 months and then obtained a job as a bus driver with a private company.  He lost that employment when the employer was informed of his criminal background.  Thereafter he performed casual work gained through the Blue Nurses.

35. While the applicant was in custody on remand he completed a number of courses as a lead-up to participation in the sex offenders’ programme which was not available to him as a remand prisoner.  He expressed through his counsel his remorse for his actions and was concerned that his victims’ identities be protected.  Counsel below submitted that the pleas of guilty were of real “if not exceptional value” because they saved the complainant boys from giving evidence and saved the community the expense of a long trial or trials.

36. The facts upon which sentence was to be based were contained in the schedule (R54‑68).  The prosecutor below made reference to certain matters when outlining the Crown case against the applicant which were not admitted.  It is not a ground of appeal that the learned sentencing judge took them into account but they should be mentioned.  Reference was made to the first encounter between the applicant and the complainant SM in the public lavatories at the Woodridge Plaza shopping centre.  The prosecutor described the applicant as being let into the boy’s cubicle after the boy had seen him naked on the floor in the adjoining cubicle looking in to a further cubicle.  The prosecutor said that the applicant performed oral sex and other indecent acts upon the boy.  Defence counsel said that all that was admitted was that they met in the public toilet.  There was no charge against the applicant in respect of the conduct which the prosecutor said took place there.

37. When describing the relationship with the complainant RK the prosecutor said that the boy recalled having oral sex with the applicant in public toilets where the applicant would slide under the cubicle partition on his back and engage in mutual oral sex with the complainant.  It was specifically not admitted by the applicant that any kind of unlawful activity took place in public lavatories and there was no charge relating to any such conduct.

38. In his sentencing remarks his Honour spoke of the applicant’s “brazen behaviour in public toilets” and his approaches to young boys in such places and observed “the concept of you sliding naked on the floor of a toilet between cubicles and accosting a boy in that fashion would have shocked most parents let alone what it must have done to the boy”.  This might suggest that his Honour was impermissibly taking into account non-admitted facts but no complaint is made and it cannot be inferred that the sentences were inappropriately infected by these alleged events.

39. His Honour also referred to the complainants as “underprivileged” boys.  There was little background evidence given about the complainants except a passing comment by the prosecutor when speaking of the inconsistencies in the complainant’s statements when he said:  “Some of them are street kids, some of them are children who have come from disadvantaged backgrounds.”  (R28)

40. Mr Shanahan (as his Honour then was) who appeared for the applicant submitted that the starting point of a 20 year sentence for the most serious offences was excessive particularly when compared to sentences imposed in other like cases where violence was a factor in the relationship or where multiple complainants were involved in offences carrying a maximum term of life imprisonment.

41. Counsel were able to point to no closely comparable cases in Queensland although Simpson (CA No 461 of 1998) is the nearest and mention was made of Bell (No 0548 of 1997 a decision of 12 February 1999 in the New South Wales District Court).  Bell is the only case comparable in its facts to the present but suffers from the difficulty that the highest maximum penalty available (for homosexual intercourse, s 78K of the Crimes Act 1900 NSW) was 10 years.  Nonetheless there is some merit in looking at the approach taken to the sentence in Bell not the least because the Australian community might be thought to have an interest in parity of punishment for crimes which lie so very much outside the ordinary run of such offences.  In any event, the effect of a significantly lower available maximum sentence was to some extent reduced by the learned New South Wales sentencing judge accumulating three of the most serious of the offences to give a total sentence of 14 years with 10½ years to be served by way of minimum term.  A further difference was that Bell was not charged with an offence akin to that in s 229B of the Code, that is, of maintaining an unlawful sexual relationship since the offence of persistent sexual abuse of a child, which is very similar to s 229B, was not introduced into the Crimes Act 1900 (NSW) (s 66E) until 1998.  An appeal was lodged in Bell but discontinued on 29 March 1999.

42. Bell was aged 64 at sentence.  He was tried on an indictment containing 38 charges of sexual offences against five boys whose ages were from 10 to 16 years.  He was acquitted on 10 charges and convicted on 16 charges of homosexual intercourse, three charges of indecently assaulting a child under the age of 16 when under the accused’s authority (a circumstance of aggravation) (maximum 6 years), two charges of indecently assaulting a male (maximum 5 years), six charges of indecent assault (maximum 4 years), one charge of committing an act of indecency with a child under the age of 16 years (maximum 2 years).  After the verdicts were delivered and before the adjourned sentence hearing Bell pleaded guilty to a further 16 charges on indictment involving 13 additional boys.  They involved three charges of homosexual intercourse with a male aged between 10 and 16 and other charges of indecency.  Bell admitted his guilt to 31 further charges concerning indecent acts against boys including three charges of homosexual intercourse.  In summary, he was sentenced on a total of 44 offences, with 31 similar offences to be taken into consideration.  Of those 44 offences 19 were of homosexual intercourse with a child between 10 and 16, six were of indecently assaulting a child under 16 and under authority, 12 were indecent assaults and four were indecent assaults on a male.

43. Bell’s offences were committed over a period commencing in 1978 until about 1991 but the earliest in 1978 and 1979 were isolated incidents.  The balance cover a period of 10 years during which more or less continuous unlawful conduct took place.  The offences involved 18 boys under the age of 16.  Bell was in his 40s and late 50s during the period of the charges.  He had been convicted and fined in 1961 in the United Kingdom of indecent assault on a male under the age of 14 years and a similar allegation was made in New South Wales in 1975 but it would seem did not proceed.  Bell attempted aversion therapy for his predilection for pubescent boys at about this time, clearly without success.  He was a man of considerable assets owning a beach house, two flats in Sydney, a farm and several boats.  He was described by the learned sentencing judge as

“... a sophisticated well‑educated, well‑travelled and worldly man.  This is in contrast to most of his victims, who were far less well endowed in any of these respects, and some of whom, indeed, were vulnerable, not only by reason of their youth but because they came from families which were dysfunctional.  The prisoner’s range of life experiences went far beyond those of any of the children to whom he resorted for sexual purposes,” p 12.

Bell used his material wealth to entice and seduce the children into sexual activity.  In many instances he gained the trust of the boys’ parents.  On occasions he gave the boys employment cleaning his luxury cars and boats as well as by taking them water skiing, buying them meals, taking them to his farm and beach house and generally offering them inducements to accommodate his sexual demands.  His sexual requirements ranged from indecent touching to oral sex and anal intercourse.  Sometimes several boys were involved in the activities and reference is made on sentence to at least one other adult male being sexually involved with a boy in Bell’s home whom Bell abused shortly after.

44. The most serious offences, as held by the learned sentencing judge, were an occasion when a complainant aged about 13 years with another young person had taken a video recorder belonging to Bell.  Bell told them that it could be dealt with either by going to the police or in his, Bell’s, way.  The complainant’s brother was serving a period of imprisonment and Bell told him that he too might end up in detention if the matter went to the police.  Following this Bell took the complainant into his bedroom and anally penetrated him.  He was sentenced to a term of imprisonment of 6 years for this offence.

45. Another serious offence occurred after Bell had observed an adult associate anally penetrating a complainant in bed at his beach house.  Shortly afterwards he asked the boy if he too could perform anal penetration but the boy declined.  Nevertheless Bell anally penetrated the boy who was then 13.  A sentence of 4½ years’ imprisonment was imposed to commence at the expiration of the previous sentence of 6 years.  On another occasion with the same boy alcohol was consumed on his 15th birthday, provided by Bell, and in the course of the night Bell anally penetrated him.  As a consequence the boy suffered an anal tear.

46. His Honour also regarded as particularly serious an act of anal penetration on a boy aged 14 years whom he had befriended with his mother when they lived near his farm.  Bell came looking for the boy when he and his mother moved to a Sydney suburb and on this particular occasion took him to his beach house where they watched an explicit sexual film and Bell engaged in penile penetration of the boy.  A sentence of 3½ years’ imprisonment was imposed for this offence to commence at the expiration of the 4½ year sentence.  This led to a sentence of 14 years with a minimum term of 10½ years.  This would equate to a sentence of 21 years in Queensland if the prisoner were to receive parole at the halfway point in his sentence, but as is mentioned susbsequently, it is quite unlikely that this applicant, if he is granted parole at all, will obtain it at anything like the halfway mark.

47. The extent to which Bell had exhibited any degree of remorse for his conduct towards the victims of the sexual offences was found by the learned sentencing judge to be fairly limited.  He did take into consideration the real saving in court time and expense to the community occasioned by his pleas of guilty to numerous other offences after the return of the jury verdicts.  He had by that time seen how distressed five of his victims were whilst giving evidence during the trial.  It was accepted that there was no aggravated violence or forceful conduct and although some offences contained the aggravating element of being in authority, it was to be distinguished from those cases in which a more structured relationship such as that of teacher and student or parent and child was involved.  In rejecting a submission of mutuality in some of the relationships the learned sentencing judge observed, correctly, with respect,

“Here, however we have vulnerable children being induced to enter into sexual conduct by means of benefits and blandishments, and, who, at the relevant time, lack the maturity and also, in some cases, the adult guidance to enable them to recognise the implications of the prisoner’s conduct until they themselves were much older.”  p 43

His Honour concluded that Bell would not constitute a danger to boys on his release so that the major consideration was not rehabilitation but general deterrence.

48. Turning to the Queensland sentences, as will be seen, they offer little by way of comparability.  They do, however, offer assistance in indicating the range of punishment for offences of sexual abuse against children.

49. Simpson (CA No 461 of 1998) was a case with facts most similar to the present.  The applicant who was aged 36 at sentence pleaded guilty to many sexual offences against five adolescent boys aged between 12 and 15 years occurring over a period of 11 years.  He had no previous convictions.  Two of the charges were of maintaining an unlawful sexual relationship with the aggravation of anal intercourse.  That aggravated offence carried a maximum sentence of life imprisonment.  The applicant was sentenced to 14 years’ imprisonment on the maintaining charges which was reduced to 12 years on appeal.  The first relationship began when the applicant was 18 and the complainant 12 and continued for five years involving mutual masturbation, oral sex and two acts of sodomy.  The offences against the second complainant began when the boy was 13 and the applicant 30 and continued for more than three years.  The indecent conduct was similar to that with the first boy and included anal intercourse.  The unlawful conduct with the third complainant was similar.  He was about 15 when the offences commenced.  The fourth complainant was 14 when the applicant, aged 33, exposed him to an indecent photograph and an offer of money for oral sex.  The fifth complainant was 15 at the time of the offences which were attempts by the applicant to engage in oral sex with him.  An aggravating feature concerning the last complainant was that the applicant was employed by a government department as an adolescent resource worker and the complainant was a youth for whom he had official responsibility.  The applicant had encouraged each of the complainants to comply with his desires by gifts and favours.  In considering whether the term of imprisonment imposed below was excessive the court compared the conduct of the applicant with that of the applicant in G (CA No 380 of 1997).  Pincus JA observed at p 8 of his reasons that “the question of willingness or otherwise appears to me to be of some significance” particularly for the purpose of comparison with G where repeated violence was used to induce compliance.

50. In G the applicant for leave to appeal against sentence was convicted on pleas of guilty of two counts of maintaining an unlawful sexual relationship with a child under the age of 16 years, 17 counts of indecent treatment of a child, two of assault occasioning bodily harm, one of unlawful exposure of a child to an indecent act and one of child abduction.  The latter offence was committed on bail and in breach of the conditions of his bail.  In most of those offences it was an aggravating circumstance that the child in question was under the applicant’s care.  The applicant was aged 53 years with minor irrelevant prior convictions.  He was a foster parent for the Department of Family Services and the three boys in question came into his care successively.  The first was aged about 11.  The applicant carried out frequent indecent acts estimated by the complainant to be some 500 although the applicant said there were only 40 to 50 such incidents involving masturbation, oral sex, simulated anal intercourse and ejaculation onto the boy.  The sexual abuse persisted over a period of four years until the boy moved out at the age of 15.  The next complainant boy suffered sexual abuse at the hands of the applicant from the age of 11 to 13 years.  A further aggravating feature was that he was afflicted with mental deficits as well as some physical disabilities.  The complainant said that the applicant fondled his genitalia on hundreds of occasions, simulated anal sexual intercourse and ejaculated onto him.  He made some unsuccessful attempts to resist the applicant and significant acts of violence against the boy occurred, some seen by witnesses.  The applicant then took a third foster child aged 13 and assaulted him.  McPherson JA observed at p 7 of his reasons that the offences were among the most serious of their kind which he had encountered.  There were 23 separate offences none of them involving actual anal intercourse which is a distinguishing feature from the present case.  For reasons not here relevant the court needed to resentence G and reduced a sentence of 13 years for the maintaining charges to 12 years.  The maximum penalty was 14 years.

51. Kingwill (CA No 75 of 1993), concerned a persistent offender although only one boy was involved.  The offences involved seven counts of indecently dealing with a boy under the age of 14, one of indecent treatment of the same boy when he was under the age of 16 years, seven counts of aggravated indecent treatment of a boy under the age of 16 years (the boy was under his care), three counts of aggravated sodomy of the same boy, again in his care, one count of inducing the child to commit sodomy with a circumstance of aggravation and one count of maintaining a sexual relationship with a child with a circumstance of aggravation (anal intercourse).  The offences of aggravated sodomy and maintaining a sexual relationship with a circumstance of aggravation carried maximum penalties of life imprisonment.  The unlawful conduct commenced when the boy was about 11 years and continued until he was over 15.  The applicant had a lengthy previous criminal history for offences of a similar kind commencing some five years previously.  A head sentence of 10 years was not interfered with on appeal largely, it seems, because of the persistence of the applicant in committing offences of this kind.

52. The applicant in H (CA No 110 of 1996) pleaded guilty to one count of maintaining a sexual relationship with a boy under the age of 16 with circumstances of aggravation, namely, anal intercourse and that the child was in his care.  The maximum penalty was life imprisonment.  There were three counts of unlawful anal intercourse, five counts of indecent treatment of a child under the age of 16 and one count of taking indecent photographs.  There were three further counts of indecent dealing with another child under the age of 16 also in the applicant’s care.  The applicant was sentenced to 12 years’ imprisonment on the charge of maintaining and each of the three counts of unlawful anal intercourse with lesser terms for the other counts and no recommendation for parole eligibility was made.  At the time of the offences the applicant was aged 49 and had previous convictions of a sexual nature against children.  After the applicant had left prison for those previous offences he obtained work with the Brisbane City Mission and as a consequence was able to obtain the trust of one of the complainants whom he met on the street and who was looking for somewhere to live.  While the child was living with him the offences occurred.  After the second complainant had run away from home he went to the applicant’s flat because he needed a place to stay and it was there that the indecent conduct occurred.  The applicant was on parole when these offences were committed and it was the second occasion on which he had committed an offence of a similar nature whilst on parole.  He showed no remorse for his offending conduct.  The court did not interfere with a sentence of 12 years referring to his extensive criminal history but observing that it was at the upper end of the appropriate range.

53. The family abuse cases may offer some assistance in comparing the overall criminality of the offending conduct of the applicant.

54. K (CA No 203 of 1993) was a particularly bad case of family corruption.  It was an Attorney‑General’s appeal against sentences imposed upon the respondent who pleaded guilty to three counts of maintaining a sexual relationship with a child under the age of 16 with a circumstance of aggravation in the case of two complainants for which the maximum penalty was life imprisonment.  Two of the complainants were his stepdaughters aged between 11 and 15, the third was the respondent’s natural son aged 6 years.  The offences persisted over a long period of time.  They involved frequent vaginal intercourse with the step‑daughters, oral sex and sodomy.  He had oral sex with the son and procured the son and step‑daughters to commit sexual acts upon themselves and each other.  The children suffered significant psychological damage as a consequence of this conduct.  The respondent was sentenced to 6 years’ imprisonment in respect of the maintaining charges against the stepdaughters and 3 years’ imprisonment in respect of the son.  The appeal was allowed and the sentences for maintaining in respect of the stepdaughters was increased to 12 years and against the son to 5 years with parole eligibility after 4 years.

55. M’s case was an Attorney‑General’s appeal, CA No 137 of 1996.  The respondent pleaded guilty to 33 charges including three of maintaining a sexual relationship with a child under the age of 16 with a circumstance of aggravation, two charges of incest and 27 charges of indecent treatment of a child under the age of 16 with circumstances of aggravation.  This abuse was of his stepchildren, two boys aged 14 and 9 and a girl of 14.  The conduct occurred over several years and was particularly serious in the case of the daughter.  The conduct ceased when a boarder moved into the house and the respondent turned his attention to her.  The wife and boys had forgiven the respondent, the daughter was somewhat ambivalent about it.  The appeal was generally concerned with the weight which should be given on sentence to the wishes of the victims.  The respondent had no prior convictions and was otherwise said to be a good parent.  The appeal was allowed and a sentence of 10 years’ imprisonment in lieu of 8½ was imposed with respect to the maintaining offence against the daughter and 5 years for the boys with a recommendation for eligibility for parole after serving 2½ years.  The maximum sentence was life imprisonment.

56. The cases of EM C and RP C (CA Nos 269 and 270 of 1998) were referred to by counsel.  The facts are quite different from the present but nonetheless a consideration of it serves as a comparison for overall criminality in respect of offences against children.  The respondents to the Attorney‑General’s appeal were the mother and stepfather of the two complainant girls.  The male respondent pleaded guilty to seven counts of rape, three of unlawful carnal knowledge, one of indecent dealing with a girl under the age of 14, one of indecent treatment of a child under the age of 16 and one of maintaining an unlawful sexual relationship with a child under the age of 16 with a circumstance of aggravation.  The female respondent pleaded guilty to four counts of rape and one count of indecent dealing with a girl under the age of 16.  The offences began in 1985 when one stepdaughter was aged 8 and the other 6.  The female respondent’s criminal conduct involved only her elder daughter and spanned the first two years of a seven year period of abuse by the stepfather.  The male respondent had a minor irrelevant previous criminal history and the female respondent had no previous convictions.  The circumstances, as the court noted, were unusually depraved and disturbing.  The female respondent assisted the male respondent to sexually abuse the elder daughter over a two year period when the child was aged between 8 and 10.  The four rapes to which she was a party occurred in the marital bed.  She apparently found this conduct sexually stimulating and indecent conduct occurred forcibly between herself and the child as well between the child and the male respondent.  After the mother ceased to be involved she was aware that other offences were continuing to be committed by the male respondent.  Over the same period the second daughter was indecently dealt with by the male respondent on numerous occasions including indecent touching, oral sex and sexual intercourse.  The respondents were aged 68 and 58 years at sentence and suffered from serious health problems.  There were late pleas of guilty.  One complainant was cross‑examined at committal because the female respondent maintained a false claim of having acted under duress.  The victims had been left with serious long‑term emotional problems.  The sentences imposed of 12 years with parole after 4½ years for the male respondent and 7 years with parole after 3 years for the female respondent were not interfered with on appeal although the court commented that it would not have been inappropriate for the sentences to have been more severe.

57. There is no doubt that the community is outraged at the thought of children being used for the sexual gratification of adults and of the necessarily destructive and corrupting effect upon those children of prostituting themselves for benefits and favours to those adults as has occurred here.  It would not be overly colourful to describe the applicant’s house as a “den of depravity” but having done so, it is important not to be overwhelmed by the number of offences, very serious though that is, when considering the appropriate sentence.

58. Many of the complainants were introduced to the applicant by other boys already familiar with his sexual proclivities.  Some boys made their own way to the house.  Only one who was the subject of charges was actually “picked up” outside, perhaps in the worst of venues, a public lavatory.  No part of the agreed facts involved the applicant giving the boys unlawful drugs (except cigarettes to under‑aged children) or alcohol.  Neither did he take any of them away to other destinations and therefore out of the reach of their friends and acquaintances as occurred in Bell.

59. There are two further factors about the circumstances of the offences which are important in considering the appropriateness of the sentences imposed.  There is no suggestion of coercion or violence against any of the complainants.  This puts these offences into a quite different category from, for example, G, where there was serious violence against the complainants.  Bell had elements of coercion and compulsion in some of the offences.

60. The other factor is that these offences involve no special relationship between the complainants and the applicant such as is regarded as an aggravating feature in sexual offences against children.  I do not regard the fact that the applicant subsequent to the establishment of the relationship with one boy, IL, represented himself to the school as his father and that he  received social security payments for two boys brings these relationships into this category.

61. The abuse of trust involving sexual depredation by parents and step‑parents upon vulnerable children within the family group seems to me a much more serious example of criminal wrongdoing against children.  The children are violated where they should feel most safe by persons who should be their natural protectors and guardians.  In most cases those children have nowhere to go and no one to whom they can be expected to turn.  They are often made to feel guilty for the adult’s wrongdoing and are regularly silenced with threats, M, K and C.

62. In this case a serious feature is the applicant’s rapid return to the kind of unlawful conduct in respect of which he had recently served a lengthy term of imprisonment.  The applicant on the other hand had, it seems, been offered no rehabilitation assistance in prison or supervision on parole.  Another serious feature is the number of young boys corrupted by the applicant.  However, when regard is had to the sentences imposed in Simpson and H and the overall sentence in Bell, and taking into consideration the penalties imposed in cases such as G, K, M and C I am of the view that the learned sentencing judge, perhaps influenced unduly by the great number of offences, started at a point which was too high.

63. Before discussing an appropriate head sentence it should be mentioned that there is a real likelihood, as counsel submitted, that with a past record for similar criminal conduct the applicant will not be offered parole, or at least at nowhere near the halfway mark.  If he is of good conduct and industry he can expect to receive the remissions provided for in the Corrective Services Regulations 1989 of one-third of his sentence.  That is an expectation of all prisoners provided the qualifications are satisfied and is no reason for adjusting a sentence.  Accordingly when fashioning a sentence which gives appropriate recognition to the mitigating factors of the pleas of guilty and cooperation with the police, if any certain benefit is to be accorded to the applicant it ought, as was recognised by the learned sentencing judge, be implemented by a reduction in the head sentence.

64. In the absence of any expert assessment it is difficult to have any appreciation of the applicant’s prospects of rehabilitation.  He wishes to participate in the sex offender’s programme and has shown some insight into the wrong he has done the complainants.  It will be for the relevant authorities to assess whether he no longer constitutes a risk to adolescent boys.  Deterrence is clearly a significant aspect of the sentence and must serve as a suitable warning to those who are tempted to engage in similar conduct and know that the community, acting through the court, will not tolerate it.

65. I would conclude that a head sentence of 17 years is the appropriate starting point for the serious offences of maintaining a sexual relationship with a child under the age of 16 with the circumstance of aggravation of anal intercourse to reflect the overall criminality of the applicant’s conduct and his past record for similar offences. 

66. A reduction of 3 years on a sentence of 20 years might be thought an insufficient recognition in the circumstances of this case of the pleas of guilty and cooperation.  The saving in monetary cost to the State and in emotional cost to the complainants has been considerable.  The difficulties of inconsistent statements, admissibility of evidence with multiple complainants and children giving evidence, was acknowledged both below and in this court by the Crown as likely to have lead to a complex and lengthy trial.  Further, without the significant cooperation of the applicant in settling the statement facts the sentence hearing itself would very likely have been much less straightforward.  This significant mitigating factor was absent in Bell and the pleas to many other offences in his case only followed the guilty verdicts from the jury.  Such conduct by this applicant demonstrates more effectively than any words a proper sense of contrition together with his preparation for acceptance into the sexual offenders’ programme.  He would seem to have some insight into the corrupting nature of his conduct against these complainants having reflected upon the course of his own life after being debauched as a young boy.  No psychological reports were tendered to the court below, but it would require no expert evidence to conclude that some of the boys at least would have sustained lasting damage which might manifest itself in a variety of anti‑social ways.

67. Finally there is the cooperation which the applicant gave to the police.  It seems that the offenders were targeted in the undercover operation but that police were wanting in complainants to match to them.  This the applicant was able to do.  Such conduct is to be encouraged and can usually best be done by a recommendation for parole eligibility earlier than the statutory scheme.  In this case, as has been mentioned, that may be no recognition at all.

68. On a head sentence of 17 years a reduction of 3½ years is sufficient to recognise the value of the early pleas of guilty and cooperation with the police.  I would reduce the sentences of 17 years by 3½ years to reflect those factors.  That results in a sentence of 13½ years for the three offences of maintaining an unlawful relationship of a sexual nature with the circumstance of aggravation that there was carnal knowledge by anal intercourse with a child under the age of 16, each to be served concurrently (counts 14, 23 and 31).  All the terms of imprisonment were ordered to be served concurrently.  The other sentences do not appear to be manifestly excessive in all the circumstances and I would not disturb them.

69. The orders which I would propose are that the applicant be granted leave to appeal, that the appeal be allowed to the extent of setting aside the sentences imposed for counts 14, 23 and 31 and imposing in lieu thereof terms of imprisonment of 13½ years on each to be served concurrently with the other sentences imposed below.