R v P[2000] QCA 271

THE CHIEF JUSTICE:  At a time when he was 60 years old in April or May 1999 the applicant committed a number of offences on a 10-year-old boy. They were offences of sodomy, for which he was imprisoned for nine years and declared convicted of a serious violent offence with a reporting condition under section 19 of the Criminal Law Amendment Act 1945, and four counts of unlawful and indecent dealing with the same child aggravated because the child was under his care. It is enough to concentrate this morning on the penalty imposed for the sodomy. The applicant submits that it was manifestly excessive.

He was a long-standing trusted friend of the mother of the complainant. She regularly left her son in the applicant's care over the weekend. The boy called him "Uncle Ray". On the relevant occasion the applicant provided the boy with pornographic material, straddled the child, masturbated himself ejaculating into the child's mouth and instructing the child to swallow.

He lubricated the child's anus and his own penis with vaseline and sodomised the child including ejaculating. Whilst in the shower he had the child wash his, that is the applicant's penis, and digitally penetrated the child's anus and performed oral sex on the child.

When confronted by the police the applicant made admissions but they were in self-serving terms suggesting that the boy engaged in these acts of his own free will and in a sense instigated them, or some of them.

The applicant is of borderline intelligence. He received a disability pension. He had a most significant prior criminal history including convictions on two counts of sodomy of a boy under the age of 14 years committed in 1965 for which he was sentenced to six years imprisonment and sodomy committed again in 1977 for which he was sentenced to three years imprisonment.

The circumstances of those offences and the applicant's responses to the allegations which founded them were comparable with these. There was evidence before the learned sentencing Judge of continuing adverse emotional consequences to the complainant which is hardly surprising. The essentials of the approach taken by the Judge emerged from these sentencing remarks:

 "It seems to me, Mr P, that the overwhelming need in this case is to impose orders that will act to protect young children from further prohibitory offending by yourself in this way. I accept the submission of your counsel that your previous criminal history relates to offences committed many years ago. Nevertheless you have demonstrated that notwithstanding significant terms of imprisonment being imposed upon you, you have not learnt from those sentences that the Courts and the community simply will not tolerate this sort of conduct.

 It is a matter of concern that I have been asked to proceed in the absence of any psychiatric material. I take the view that with advancing age your illicit lust for young boys may be expected to diminish, nevertheless I am not prepared to run the risk of another child being defiled if that can be avoided by the making of the orders sought by the Crown in this case. As I say, the overwhelming concern that I have is to make orders that, so far as possible, will protect other young children."

The applicant contends that his Honour placed far too much weight on the need to protect young children, to deter the applicant personally, and the significance of the applicant's prior history in light of its age. On the other hand he placed insufficient weight, it is contended, on the applicant's cooperation evidenced in particular through the pleas of guilty.

The circumstances of the applicant's prior offending, repeated on this occasion, together with his borderline intellect and apparent lack of real insight, combine to render the need to deter the applicant and protect other potential victims of cardinal importance.

I find no fault with the manner of his Honour's reasoning. The essence of the matter was put well, I thought, in these terms in the course of the Crown Prosecutor's submissions:

 "The point really is this; there have been two other times where this man has been caught with the same sort of boys in a position of trust, the same age and he still uses the same excuses, which shows really a lack of insight into his offending behaviour. And the Crown says that is important. The protection of society is paramount in the sentencing process in this case because of what has happened previously."

The real issue is whether the nine year sentence coupled with the declaration produces a result which is manifestly excessive. We were referred to cases on both sides. It was a substantial penalty, but in my view it was justified especially in light of a repeat serious offending.

Before the Judge, counsel for the applicant contended for a range of seven to nine years' imprisonment but without a declaration. The Crown Prosecutor submitted that allowing for the pleas of guilty 10 years' imprisonment was appropriate which would automatically attract a declaration.

The applicant relied before us on a number of cases which, although factually similar in some respects, are otherwise readily distinguishable. I will run through them. In Main, CA 148 of 1993, the appellant had no relevant previous criminal history. Buckby, CA 449 of 1995, was given seven years' imprisonment but that was the statutory maximum. O, CA 32 of 1993, was given seven years, but that was said by the Court of Appeal to be lenient.

In H, CA 275 of 1999, a range of six to seven years was said to be appropriate for such instancies of sodomy but that was in the context of a maximum of 14 years. Since the 1990 amendments to the Code the applicable relevant maximum in this case is life imprisonment. In Wilson, CA 287 of 1990, the final case relied on for the applicant, the relevant maximum was again 14 years.

Allowing for the indications given in those cases in the context of the then applicable maximum penalty, but acknowledging that the applicable maximum is now life imprisonment, I would not describe nine years' imprisonment with the declaration for this repeat offender committing sodomy on a boy of 10, 50 years his junior, betraying trust and leaving his victim emotionally scarred, as manifestly excessive.

Counsel for the applicant submitted that the declaration was not warranted and that the learned Judge ignored Bojovic, CA 4 of 1999. It was clearly open for the Judge to find a declaration warranted and that did not, consistently with Bojovic, compel the Judge to impose a lesser term of imprisonment than the one he did impose. I would refuse the application.

DAVIES JA:  I agree.

WILLIAMS J:  In agreeing with the Chief Justice that a sentence of nine years with the declaration is not manifestly excessive, I have been particularly influenced by the ages of the three boys involved in the offences for which the applicant has been convicted over the years.

With respect to the offence committed in 1965 the boy was aged 11 years, with respect to the offence committed in 1977 the boy was aged nine years, and in the current offence the boy was aged 10 years. Given the ages of those boys and the repetition of the offence of sodomy, it is my view that the sentence imposed was not manifestly excessive. I agree with all the reasons given by the Chief Justice.

THE CHIEF JUSTICE:  The application is refused.