Attorney-General v Levack[1999] QCA 448

COURT OF APPEAL

McMURDO P

THOMAS JA

ATKINSON J

CA No 263 of 1999

THE QUEEN

v.

KEITH STEWART LEVACK Respondent

Ex parte

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

DATE 27/10/99

JUDGMENT

THE PRESIDENT:  The respondent pleaded guilty to sexual offences committed upon young boys.  The first indictment to which the respondent pleaded guilty contained one count of indecent dealing with a child under 12, two counts of indecent dealing with a child under 16, one count of procuring a child to commit an indecent act, and one count of maintaining a sexual relationship with a child under 16.  These offences spanned 31 December 1991 to 1 January 1993 and occurred at Ipswich; they were committed upon one complainant who was 10 or 11 at the time the offences commenced.

The second indictment to which the respondent pleaded guilty covered the period from 1 January 1998 to 11 October 1998 and comprised 13 counts of taking a child for immoral purposes, including three with circumstances of aggravation, four counts of indecent treatment of a child under 16 with circumstances of aggravation, 18 counts of indecent treatment of a child under 16, and one count of assault occasioning bodily harm.  These charges involved five boys aged from eight to 14 years and occurred in the Logan area.

On 7 July 1999 the respondent was sentenced to eight years imprisonment with a recommendation for consideration for parole after three years in respect of the maintaining offence, and to lesser concurrent sentences of imprisonment in respect of the remaining offences.  The appellant, the Attorney-General of Queensland, claims the sentence imposed was manifestly inadequate.

In addition to the formal sentence, the respondent was ordered for 10 years after his release from custody to report any change of address within 48 hours under section 19 of the Criminal Law Amendment Act (1945).  The learned sentencing Judge further strongly suggested that the respondent immediately, and whilst in custody, receive psychiatric, psychological, and medical treatment.

The respondent was 50 years old and had a worrying criminal history.  In 1970 he was placed on probation with a psychiatric clause for two counts of aggravated assault on a male child under the age of 14 years.  In 1971 he was convicted of stealing and false pretences and given a community based order.  Far more significantly, on 15 December 1980 he was again convicted of four charges of aggravated assault of a sexual nature on a male child under the age of 14 years and was given a further period of probation, this time for three years with medical, psychiatric, and psychological treatment.

These offences were committed on a seven-year-old child in a toilet block at a caravan park.  The boy was in the shower and the respondent played with and then sucked the boy's penis.  In 1978 the respondent fondled a seven-year- old boy's penis in the toilets at Woolworths Booval.  In 1979 he repeated this conduct on a six-year-old boy, this time kissing the penis.  In December of that year, he again fondled the penis of a boy under 14.  He re-offended on 1 October 1980, and on 3 April 1981 he was sentenced to two and a half years imprisonment.

On 18 June 1985 he was again dealt with for indecent dealing of a boy under the age of 14 years, and sentenced to three and a half years imprisonment with a recommendation that he receive medical, psychiatric, or psychological treatment as deemed necessary.  On that occasion the complainant was nine years old and the respondent masturbated the child and performed oral sex on him.  The next day the respondent repeated this conduct, and in addition, placed his penis between the child's legs.

There was then something of a gap in the respondent's behaviour until the commission of these offences.  The first series of offences for the Court's consideration commenced when the complainant boy was 10 or 11 and continued for five years.  The respondent became a friend of the victim's mother, a single parent, who was happy for her son to associate with the respondent, thinking he was an adult male role model.  The respondent took the complainant for drives in his car and regularly masturbated him, often until ejaculation.  On one occasion the respondent licked the complainant's ejaculate from the respondent's hand.  The complainant had minimal brain damage.

The victim impact statement said that the complainant had developed significant behavioural problems at the time of the abuse and had subsequently been withdrawn from school at 14, and now has trouble associating with men.

The second indictment covers charges involving five separate complainants aged from eight to 14 years in the Logan area.  A number of these offences were committed whilst the respondent was on bail.  The offending conduct involved fondling and sucking the penises of the complainant boys in return for letting them drive his car, giving them cigarettes and other items.  On one occasion he masturbated until ejaculation in front of the boys.  No direct physical violence was used in the sexual conduct, and the respondent desisted when asked.

The offence of assault occasioning bodily harm was committed upon a complainant boy who was driving the respondent's vehicle after drinking alcohol supplied by the respondent.  The boy was told not to exceed 60 kilometres per hour, and after not slowing down when told he was going too fast, the respondent punched the boy in the genital area.  The tendered victim impact statements confirm the expected, that the offences have had a serious effect on vulnerable adolescent or pre-pubescent boys.

The appellant submits that the learned sentencing Judge did not give sufficient weight to the escalating nature of the respondent's criminal activity and the importance of deterrence.  The appellant submits a sentence of nine to 10 years imprisonment should have been imposed, with a recommendation for parole after four and a half years.

Interestingly, the range contended for by the prosecutor at sentence was eight to 10 years imprisonment, and the sentence imposed fell within that range.  The comparable sentences relied upon by the appellant do not support the appellant's claim that this sentence is outside the range and, indeed, Mr Meredith fairly and properly concedes that the sentence imposed was within the range, but he submits the sentence was at the lower end of the range when it should have been at the higher end of the range.

Consideration of the cases relied upon by the appellant, in my view, demonstrates that the sentence imposed was within the range.  For example, in R v G (CA 380 of 1997; 21 November 1997) a 53-year-old man with no relevant prior convictions pleaded guilty to two counts of maintaining an unlawful sexual relationship with a child under 16 years, 17 counts of indecent treatment and two counts of assault occasioning bodily harm, one count of unlawful exposure of a child to an indecent act, and one of child abduction.  The offences occurred on three complainants who had been released by the Department of Family Services to G as a foster parent.  The conduct included masturbation, fellatio, simulated anal intercourse, and ejaculation.  Regular sexual abuse continued over four years upon the first complainant, from 11 to 15.  The second complainant boy was sexually abused from the age of 11 to 13 years, and had a mental age of eight, as well as physical disabilities.  G was a large man, weighing 100 kilograms, and much bigger than his victims.  He was also physically violent towards the second complainant.  Similar acts of sexual and physical abuse were perpetrated upon the third complainant child who came to G as a foster child when he was 13 years old.  After being charged and given bail, G took the second complainant from his school to North Queensland.  The Court noted that a psychiatric report tendered in respect of G suggested that recidivism was likely and that offenders of this kind seldom abandon or succeed in controlling their habit.  The Court particularly noted the shocking abuse of trust.  The sentence imposed was reduced from 13 years to 12 years imprisonment.

Even after taking into account this respondent's shocking criminal history, G is a much worse case than this in that the sexual abuse was more serious; there was an abuse of trust, and physical violence was used.

Similarly, H (CA No 110 of 1996; 5 June 1996) demonstrates that this case was not as serious and that the sentence imposed was within the proper range.  H pleaded guilty to a number of sexual offences, including  maintaining a sexual relationship with a child under 16, with a circumstance of aggravation that the applicant had carnal knowledge of the child by anal intercourse and the child was in his care for the time being.  He was sentenced to 12 years imprisonment on the maintaining charges, and to lesser concurrent terms of imprisonment on the other charges.  He was 49 years old and had prior convictions for indecent dealing with a boy under 14, aggravated assault of a sexual nature of a male child under 14, and two counts of indecent dealing with a child under 16, and wilful exposure to a child under 16, as well as some drug offences.  He was released on parole, and the next month began committing further sexual offences for which he was again imprisoned.  Whilst on parole yet again, the applicant committed the sexual offences the subject of the Court's consideration, which included anal intercourse, oral sex, and masturbation of both H and his complainants.  He used his association as a volunteer with the Brisbane City Mission whilst on parole in order to gain the confidence of many of the complainant children, some of whom were "street kids".  The Court was referred to the case of R v A (CA No 55 of 1996; 29 April 1996) where a sentence of 10 years imprisonment was substituted for the original sentence of 12 years imprisonment.  A had been charged with indecent dealing, sodomy, and maintaining in respect of a child under 16 years with a circumstance of aggravation, and had two prior convictions for sexual offences involving a young person.  The Court distinguished A, as in H's case the applicant, H, had been on parole and committed sexual offences on two occasions and was more persistent.  The Court, in H, refused to interfere with the 12 year term of imprisonment.  H, like this respondent, had a bad criminal history but H's case also involved sodomy and other features which placed it in a worse category than this case.  The term of imprisonment of 12 years imposed on H demonstrates that the term of imprisonment of eight years in this case was appropriate.

This is also confirmed when consideration is given to the range of sentences imposed in the cases of Kingwill, CA No 75 of 1993, delivered 13 May 1993, and Benetto, CA No 367 of 1997, delivered 2 December 1997. 

The offences for this Court's consideration, as the primary Judge noted, did not involve sodomy or attempted sodomy.  The comparable sentences relied upon by the appellant confirm the submission made below, not seriously departed from by the appellant in this Court, that the appropriate range was eight to 10 years imprisonment.

Despite the respondent's shocking criminal history, he was still entitled to consideration for his early plea of guilty and his cooperation with the authorities.  The experienced learned sentencing Judge noticed the serious aspects of these offences and saw the respondent as a "committed paedophile", and that the offences were "a serious example of continued predatory sexual abuse on vulnerable youths which will have some lasting effect on them".  He also noted how abhorrent the offences were, and that they required a deterrent sentence.

The added requirement that for 10 years the respondent report any change of address within 48 hours, pursuant to section 19 of the Criminal Law Amendment Act 1945, will be an additional burden for the respondent and may offer some protection to the community. 

Whether he is released on parole as recommended by the learned sentencing Judge will, of course, be a matter for the parole authorities.

The learned Judge considered the relevant factors in determining a sentence which was within the appropriate range.  It cannot be said, therefore, that it was manifestly inadequate.  I would refuse the appeal.

THOMAS JA:  I agree with what the President has said.  I would add that as it is conceded both below and here that the appropriate range of sentence for these matters lay between eight and 10 years, I fail to see how it can be contended on an Attorney's appeal that the present sentence was manifestly inadequate.  The circumstances were serious, but so were the sentences, which include a substantial term to be served by a 50 year old man, followed by a further 10 years reporting after release.  I would dismiss the appeal.

ATKINSON J:  I agree that the appeal should be dismissed and with the reasons of the other members of the Court.

THE PRESIDENT:  The order is the appeal is dismissed.