R v TWB[2001] QCA 111

COURT OF APPEAL

McPHERSON JA

WILLIAMS JA

BYRNE J

CA No 355 of 2000

THE QUEEN

v.

T.W.B. Applicant

BRISBANE

DATE 22/03/2001

JUDGMENT

BYRNE J: Upon his convictions following pleas of guilty to two offences of maintaining an unlawful sexual relationship with circumstances of aggravation, the applicant was sentenced in respect of each of the offences to seven years imprisonment, in each case with a recommendation that he be eligible for parole after serving three years.

His victims were his son and his stepson. The applicant's son was aged between five and nine when he was sexually molested; the stepson was aged between five and seven when he fell victim to the applicant's sexual predations.

In respect of the son, the sexual misconduct consisted typically of the applicant's rubbing his erect penis between the buttocks of the complainant simulating sodomy, often fondling the complainant's penis at the same time - conduct which typically persisted until the applicant ejaculated. This misconduct usually occurred when the complainant visited the applicant on overnight access at the applicant's flats, and sometimes on visits to the property of the complainant's grandparents. It took place about once every two or three months over a period of about five years. On some occasions the conduct involved the applicant sucking the penis of the complainant. As is often a feature of cases like this, the applicant told the complainant to keep quiet; and there was some "emotional blackmail" (as it has been described) involved in the applicant's telling the boy not to tell his mother or else he would never see him again.

In respect of the stepson, the conduct was much the same. The admissions which constitute the entire prosecution case in respect of the stepson involved concessions that the conduct occurred between five to 10 times, usually when there was overnight access at the applicant flat.

The applicant was born in November 1960. As a child he had been a victim of sexual abuse at the hands of his brother. He had a prior criminal history for traffic and other offences including stealing, but there were no prior convictions for offences of a sexual nature.

It will be apparent from what I have said that both complainants were young, that the offences involved a gross breach of trust, that they evinced an extended course of sexual misconduct, and that they involved quite bad examples of indecent dealing persisted in, including simulated sodomy to ejaculation and oral sex.

There were two significant aspects of mitigation. One concerned co-operation with the authorities:  the other that the offences had ceased before investigation - in respect of the son when the boy finally said, no; for the stepson when the applicant voluntarily desisted.

As to the co-operation, it was extensive. It began in an interview with police during the course of which the applicant made admissions after a complaint had been made by his son to the boy's mother. The stepson had been most reluctant to discuss the offences. During the interview, however, the applicant admitted to them with the step child; and as I have said, these admissions constitute the entire case against him in respect of that boy.

The applicant also pleaded guilty at the earliest opportunity by way of ex officio indictment. The plea saved significant public resources and, importantly, spared the two boys the ordeal of a trial. The plea also appears to have evinced some measure of remorse.

As the applicant's counsel submitted, the consequences of the plea should therefore have been reflected in an appreciable discount in the appropriate sentence. The applicant's case is that the recommendation for parole after three years, which is only six months short of the automatic consideration point, fails to make sufficient allowance for these matters of mitigation.

One way in which these and other mitigating factors fell to be reflected was by a combination of moderation in the head sentence and a recommendation for earlier than usual parole.

And the Judge appears to have fashioned such a sentence in this case. 

In view of the nature and extent of the applicant's misconduct, and having regard to other sentences in not dissimilar cases (see the review in The Queen v. Graham Young, CA No 23 of 1997, 18 April 1997), in my view it cannot be said that the sentences are beyond the range of a sound sentencing discretion.

I would refuse the application.

McPHERSON JA: I agree.

WILLIAMS JA: I agree.

McPHERSON JA: The order is that the application is dismissed.

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