The Queen v Herford[2001] QCA 177

SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I have read the reasons for judgment of Williams JA, who sets out the relevant facts and issues.

2. A sentencing judge should be cognisant of whether or not Part 9A of the Penalties & Sentences Act 1992 ("the Act") has application when exercising the sentencing discretion.  Failure to recognise the applicability of Part 9A is an error entitling this Court to exercise its discretion afresh: see R v Nguyen.^[1]

3. That is not to suggest that it would be proper for a court to structure a sentence to avoid the effect of Part 9A: R v Booth^[2] and R v Daphney.^[3]  But Booth is not authority for the proposition that a sentencing judge cannot have any regard to the impact on the sentence of Part 9A: see R v Shillingsworth.^[4]  Where the appropriate sentencing range includes a sentence of less than 10 years imprisonment, the court must consider, in deciding the appropriate sentence within that range in all the circumstances of the case, whether or not to make a declaration under s 161B(3) of the Act.  See the comments of this Court in R v Bojovic^[5] and R v McCartney.^[6]

4. I agree with Williams JA, for the reasons he has given, that the learned sentencing judge erred in determining that a sentence of 12 years was the appropriate sentence before any discounting for the mitigating factors. After taking into account the applicant's late plea of guilty and his prior good history a sentence of nine and a half years imprisonment was appropriate. Neither the applicant nor respondent suggest this case warrants a declaration under s 161B(3) of the Act. The age of the complainant boys (between 13 and 15) and the absence of threats or violence in the commission of the offences leads me to agree with that assessment.

5. I agree with the orders proposed by Williams JA.

6. WILLIAMS JA:  This is an application for leave to appeal against sentences imposed in the District Court on 16 November 2000 for a series of sexual offences involving three young boys, each of whom was under 16 years of age.  The offences can be summarised as follows:

1. One charge of maintaining a sexual relationship with P, a child under the age of 16, with circumstances of aggravation that in the course of the relationship the applicant sodomised P, and that P was under his care (Count 20);

2. Four charges of sodomy with P, with a circumstance of aggravation that P was under his care (Counts 5, 6, 16 and 19);

3. One count of unlawfully and indecently assaulting H - bringing his mouth into contact with the genitalia of H (Count 22);

4. Ten counts of indecent dealing with P, a child under the age of 16 and a person under his care.  A variety of sexual conduct was covered by the indecent dealing.  (Counts 1, 2, 3, 4, 7, 8, 14, 15, 17, and 18);

5. Five counts of indecent dealing with H, a child under 16 and a person under his care.  Again, the indecent dealing covered a variety of sexual conduct.  (Counts 9, 10, 11, 12 and 13);

6. Two counts of indecent dealing with F, a child under the age of 16.  (Counts 21 and 23).

7. All the offences occurred between 1 January 1998 and 28 July 1999. The latter date was the occasion of the indecent dealing with F, and it was that conduct which drew the attention of the police to the activities of the applicant.

8. The offences involving P occurred between 1 January 1998 and 1 January 1999; most within the first 6 months. The offences involving H primarily occurred between 1 April 1998 and 19 May 1998, with a final offence on 28 July 1999. All the offences involving F occurred on 28 July 1999.

9. The applicant was born on 30 December 1943, making him aged between 53 and 55 at the time of the commission of the offences. He had no prior criminal convictions. The applicant had a regular but varied employment history. Prior to 1992 he was employed generally in the capacity of a shop assistant/salesman. In 1992 he joined the Queensland Ambulance Service and was thereafter employed as an ambulance officer until the time of his sentence.

10. The child P was born on 23 December 1983 making him aged 14-15 when the offences occurred. H was born on 12 July 1983 making him of similar age at the relevant time. F was aged 13 at the time the offences were committed on him; he was born on 7 April 1986. In broad terms it appears that each of the three boys had adolescent problems and was introduced to the applicant as a person with whom problems could be discussed. The story told by both P and H was remarkably similar. Each would go to the house of the applicant, talk, and drink alcohol. Generally that would be followed by some sexual activity. The applicant frequently watched a pornographic video whilst naked, and invited the boy in question to remove his clothes. Alcohol would be consumed. A lubricant would be obtained and sexual activity, usually in the form of masturbation, mutual masturbation and oral sex would ensue. In addition, as already recounted, the applicant sodomised P on four occasions.

11. It was P who introduced H to the applicant. Subsequently H ran away from home and resided with the applicant for about two weeks. At about that time the applicant contacted the Department of Family Services and informed them that the child was welcome to stay with him under his care. That, in my view, is a particularly disturbing circumstance of aggravation in this case. It was H who introduced F to the applicant. The offence involving F of 28 July 1999 was the subject of a complaint made by F to a carer and that is how the police became involved. 

12. At committal the three complainant boys were cross-examined, but it is not clear from the record what was put to them on that occasion. The applicant was committed for trial, and a trial date was fixed. A few days before the trial date the applicant pleaded guilty, thus avoiding the cost of a trial and not putting the three complainant boys to the ordeal of giving evidence before a jury. It should also be noted that when interviewed by the police the applicant made no admissions and it could not be said that he co-operated with the investigation.

13. At sentence the Crown prosecutor conceded that there should be some discount for the plea of guilty; he made reference to a reduction of some 12 to 15 months. At that point the learned sentencing judge queried whether that affected the head sentence or parole. There followed a discussion about the prospects of parole which included the learned sentencing judge referring to parole "earlier than the half-way mark".

14. After outlining the offences in his sentencing remarks the learned sentencing judge referred to the fact that the applicant was an ambulance officer and, as such, enjoyed a position of some responsibility in the eyes of the community. He suggested that it may have been because of that respectability that prompted parents or carers of the boys in question to allow them to visit the applicant and go on trips with him. His Honour then noted that the plea was taken some 10 days before the trial date and in consequence it could not be described as an early plea. But he went on to say that the plea had saved the community the costs of the trial and saved the boys the ordeal of giving evidence at a trial.

15. His Honour then indicated he was asked to make the allowance for that plea in the head sentence rather than in the recommendation for parole, and commented that that was a "somewhat unusual request". Reference was made to the distressing aspects of working as an ambulance officer, to the fact that the applicant had no prior criminal history, and to the fact that he had previously been of good character. The sentencing remarks then went on:

"I am told by Mr Vasta, who appears for the Crown, that the starting point should be a sentence of 12 years imprisonment and that I might . . . then afford some level of discount to that head sentence.  I take the view that that is an appropriate course to follow and that the head sentence in the case should be one of 10½  years.  That head sentence should be applied to the maintaining count, which is Count number 20".

Concurrent sentences were then imposed with respect to the other offences.  Each sodomy offence drew a sentence of 7 years imprisonment.  On Counts 4, 8, 11, 12 and 13 sentences of 3 years were imposed, while on the other counts sentences of 2 years imprisonment were imposed.

16. Then the learned sentencing judge went on:

"I have already taken into account an allowance for your somewhat belated plea of guilty and I make no other recommendation concerning the issue of parole.  I will leave that matter to the determination of the Corrective Services authorities who would be in a far better position to know your suitability for parole and the possible threat that you might present to persons in the community at a later point of time".

At the conclusion of the sentencing remarks the Crown prosecutor drew the judge's attention to the fact that he "may have led your Honour into somewhat of an error".  He then drew the court's attention to the fact that the offences occurred after 1 July 1997 so the applicant was "deemed to be convicted of a serious violence offence".  (Section 161A of the Penalties and Sentences Act 1992.)  To that the learned sentencing judge replied:

"Well, that's even more reason for doing what I have done, namely to afford the indulgence in the head sentence".

17. Counsel for the applicant contended that the sentencing discretion miscarried because the learned sentencing judge erred in failing to appreciate at the time of exercising his sentencing discretion that if he were to impose a sentence of 10 years or more Part 9A of the Penalties and Sentences Act 1992 applied, and consequent upon the operation of s 166 of the Corrective Services Act 1988 the applicant would have to serve 80% the applicant the term of imprisonment (without remissions - s 161D of the Penalties and Sentences Act) before becoming eligible to apply for parole.

18. It was further submitted that a sentence of 12 years imprisonment was too high a starting point, and that there was an insufficient discounting for the plea of guilty. With respect to the latter point it was submitted that even though the plea came at a rather late stage it did mean that the boys were not subjected to giving evidence at a trial. The point was made that if a significant discount was not granted in such circumstances then there was no incentive on an accused person to plead guilty and save the complainants the ordeal of a trial.

19. On the first point, counsel for the respondent referred to R v Booth [2001] 1 Qd R 393.  That case was primarily concerned with s 156A of the Penalties and Sentences Act which made it mandatory to impose a cumulative sentence where a further offence was committed whilst the offender was on parole.  That was another provision inserted into the Act on 1 July 1997 along with Part 9A. Speaking of that section, McPherson JA said at 400 that it would be a wrong exercise of the sentencing discretion to attempt to circumvent the quite specific legislative direction by reducing the sentence currently being imposed so as to reinstate a practice which existed prior to 1 July 1997.  But that does not mean that in determining the appropriate sentence the court should disregard altogether the consequences of the various provisions inserted into the legislation on 1 July 1997 (see R v Shillingsworth [2001] QCA 172).

20. Here, it seems that the learned sentencing judge was not mindful at the material time of the fact that a consequence of imposing a sentence of 10½ years imprisonment was that the applicant would have to serve 80% of it before becoming eligible to apply for parole. The exchange at the conclusion of the sentencing remarks establishes that. It is not to the point to say that the learned judge then observed that it would have made no difference to the sentence imposed.

21. But more importantly it does appear to me that a starting point of 12 years was excessive; it was conceded by counsel for the respondent on the hearing of the application to be at the very top of the relevant range. In particular a perusal of sentences imposed or not interfered with by this Court in Reader ([2000] QCA 279; CA No 126 of 2000, 14 July 2000), Kingwill (CA No 75 of 1993, 13 May 1993), Galley (CA No 380 of 1997, 21 November 1997) and Simpson (CA No 461 of 1998, 7 May 1999) indicates that a sentence of 12 years is too high a starting point for this case.  The offender in Reader was convicted of a series of offences involving a young girl in his care who was aged between 9 and 11 years at the relevant time.  There was one count of maintaining a sexual relationship, three counts of rape, three counts of unlawful carnal knowledge, and numerous other offences.  He was subject to a suspended sentence at the relevant time.  A sentence of 11 years was not disturbed.  Though Kingwill is now a rather old case it is still of some relevance.  There the offender was convicted of one count of maintaining a sexual relationship, four counts of sodomy, and 15 counts which could be broadly categorised as indecent dealing.  The child in question was aged between 11 and 15 at the material time, and the offender had prior convictions for similar offences.  A sentence of 10 years imprisonment was not disturbed.  Galley involved numerous offences against three children in the care of the offender.  The offences included two counts of maintaining a sexual relationship with a child.  Some of the offences occurred whilst he was on bail.  Further, force was used on some occasions.  The sentencing judge discounted a sentence of 15 years to 13 years because of the plea.  On appeal that was reduced to 12 years imprisonment.  In Simpson the offender was dealt with for two counts of maintaining a sexual relationship.  There were five complainants in all aged between 12 and 15 years.  There were numerous acts of sodomy involved.   This Court reduced his sentence of 14 years to 12 years imprisonment. 

22. The offences in question here took place over a shorter period of time than did the offences in most of the cases to which reference has just been made. There was no question of violence, and indeed it appears that the applicant did not go out of his way to solicit the boys. Whilst the crimes are serious and must be punished, it is important to maintain some relativity with other similar cases. In the circumstances the starting point before any discount for the plea of guilty had to be no greater than 11 years. That should then in my view be discounted to 9½ years because of the plea of guilty.

23. The orders of the Court should therefore be:

1. Grant leave to appeal;

2. Allow the appeal;

3. Set aside the sentence of 10½ years with respect to Count 20 and in lieu thereof order that the applicant be sentenced to imprisonment for a period of 9½  years;

4. All other ord­ers made at time of sentence should stand.

24. CHESTERMAN J:   I agree with Williams JA.