R v P; Ex parte Attorney-General
[2001] QCA 188
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- Appeal Determined (QCA)
- R v P; Ex parte Attorney-General[2001] QCA 188
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R v P; Ex parte Attorney-General[2001] QCA 188
R v P; Ex parte Attorney-General[2001] QCA 188
SUPREME COURT OF QUEENSLAND
CITATION: | R v P; ex parte A-G [2001] QCA 188 |
PARTIES: | R |
FILE NO/S: | CA No 328 of 2000 CA No 329 of 2000 DC No 2953 of 2000 |
DIVISION: | Court of Appeal |
PROCEEDING: | Sentence Appeal by A-G (Qld) Sentence Application |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 18 May 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30 April 2001 |
JUDGES: | McMurdo P, Williams JA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: | Appeal against sentence dismissed. Application for leave to appeal against sentence refused. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – SEXUAL OFFENCES – whether sentence was manifestly excessive given principles of totality – whether mitigating factors were given adequate weight CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATION TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – whether life imprisonment warranted – whether Part 9A of the Penalties and Sentences Act 1992 has application – interaction between Part 9A of the Penalties and Sentences Act 1992 and s 229B of the Criminal Code Criminal Code s 299B(2) Criminal Law Amendment Act 1945 s 19 Penalties and Sentences Act 1992 (Qld), s 9(2), s 13, s 161B(2), s 189(1), Part 9A KRM v The Queen [2001] HCA 11, 8 March 2001, referred to R v A [2000] QCA 520, 19 December 2000, referred to R v H [2001] QCA 167, CA No 40 of 2001, 1 May 2001, considered R v Ianculescu [2000] 2 Qd R 521, referred to R v KBT (1997) 191 CLR 417, considered R v L [1996] QCA 316, CA No 173 of 1996, 17 July 1996, referred to R v Mason and Saunders [1998] 2 Qd R 186, referred to R v Ruhland CA No 147 of 1999, 15 October 1999, considered R v S [1999] 2 Qd R 89, referred to R v Truong [2000] 1 Qd R 663, referred to |
COUNSEL: | M J Griffin SC for the applicant/respondent A J Rafter for the appellant |
SOLICITORS: | Ryan & Bosscher for the applicant/respondent Director of Public Prosecutions (Queensland) for the appellant |
- McMURDO P: P pleaded guilty to a 52 count indictment comprising 24 counts of indecent treatment of boys under 17, 14 counts of unnatural offences, 1 count of an attempted unnatural offence, 5 counts of indecent treatment of children under 16, 2 counts of unlawful anal intercourse, 4 counts of unlawful sodomy and 2 counts of maintaining a sexual relationship with a child under 16 years with a circumstance of aggravation. A further 184 offences of a sexual nature were taken into account under s 189(1) Penalties & Sentences Act 1992.
- P was sentenced to various terms of concurrent imprisonment ranging from five years for the least serious offences to 17 years imprisonment for the offences of maintaining a sexual relationship with a child under 16 with a circumstance of aggravation. Pre-sentence custody of 584 days was declared to be time served under the sentence and an order was made under s 19 Criminal Law Amendment Act 1945 that the respondent report to a police station within 48 hours of release and report any change of address within 48 hours for an operational period of 20 years.
- The Attorney-General appeals against that sentence claiming it was too lenient and that a sentence of life imprisonment was warranted.
- The applicant applies for leave to appeal claiming that the sentence imposed was manifestly excessive and that, giving due weight to principles of totality, a proper sentence was one of 15 to 16 years.
- P was 58 years at the time of sentence and was aged between 30 and 56 years at the time of the offences. He had no prior criminal convictions.
- The offending behaviour can be broken into two distinct periods; the first from 1970 to about 1984 and the second from 1996 to 1998.
- Counts 1-9 involved P's stepson who was aged between 7 and 14 at the time of the offending behaviour. The conduct included masturbating the young boy, performing oral sex on him, placing his finger inside the boy's anus and sodomising him.
- Counts 10-14 involved the cousin of P's stepson, who was aged between 6 and 14 at the time of the offences. The offending behaviour included performing oral sex on the boy and cocercing the boy to perform oral sex and anal intercourse upon him.
- Counts 15-16 were committed upon a ten year old friend of P's stepson. P showed the boy pornographic magazines depicting male homosexual acts and then sodomised the boy. P later committed a second act of anal intercourse upon him.
- Some offences were committed by P in the presence of all three young friends, sometimes in the cubbyhouse P had built for the boys.
- P was an assistant Scout leader and later a Scout leader. Counts 17-28 were committed upon two brothers the respondent met through scouting. One boy was aged between 10 and 14 and the other between 9 and 14 at the time of the offences. The complainant child in counts 29-33 was a young friend of the brothers.
- The offences included P committing oral sex upon the boys, the boys performing oral sex on him, P sodomising the children and coercing the boys to perform oral sex on each other and to have anal intercourse with him.
- Counts 34 and 35 involved another member of the same Scout group who was aged 10 or 11. P performed oral sex upon him and then encouraged the child to perform oral sex on yet another member of the Scout group aged about 13.
- P rang one of the complainant boys one evening and after checking that his parents had left, drove to his home and tried to kiss the boy and touch his genitals. The child's parents came home and P left the house. After questioning, the complainant child told his parents what had happened. The boy's parents took up the matter with the Scouts Association; the respondent then left the scouting movement. No complaint was made to police.
- It seems the respondent was able to desist from his abuse of young boys for twelve years until about 1996. He then committed further sexual offences upon two brothers aged between 14 and 15, and 13 and 15 during the period of offending. The boys lived near him and visited him at his home. He plied them with alcohol and for over two years involved them in a large number of sexual acts including acts of sodomy.
- The boys' parents eventually became aware of some of P's conduct and a complaint was made to police.
- P was interviewed and made full admissions in relation to the offences committed in the more recent period.
- Police were simultaneously investigating a complaint from the victim of counts 10-14; that complainant spoke to P in a taped telephone call in December 1998 during which P made admissions to sexual offences involving that complainant.
- When questioned, P assisted police in their investigation of the earlier offences and made extensive admissions upon which his pleas of guilty were based. P pleaded guilty at an early stage to an ex officio indictment and the complainants were saved from the additional trauma of giving evidence at committal and trial.
- The schedule of a further 184 offences involved many incidents of similar conduct, including oral sex and sodomy.
- On one occasion, P involved another adult male in the offending behaviour. This offender had not cooperated with the authorities and at the time of P's sentence was proceeding to trial. P indicated that he was willing to give evidence against that offender, although at the time of sentence the prosecution did not intend to take advantage of P's offer.
- P's conduct constituted an extremely serious example of offences of this kind. It took place over many years and involved ten child complainants; he sodomised eight of the boys and attempted to sodomise another. Some of the boys were only six and seven years old when the offences commenced. In the earlier instances, P was in a position of trust either as stepfather, in loco parentis, or as a scout master to whom parents had entrusted their sons. The offences involved exploitive corruption of innocent young boys. Although there was no actual force used, the complainant children were very young and P was in a position of trust and power over them; perpetration of the offences sometimes incurred pain. P was a mature man who must have had some concept of the effect of his behaviour because it was submitted at sentence that he was himself a victim of sexual abuse. He was detected and apparently warned at the time of his departure from the scouting movement in 1984, but, after a period of abstinence, he returned to his perverted and corrupting behaviour.
- In his favour, P cooperated fully with police, made ready admissions and expressed remorse for his actions.
- Had P not cooperated with the authorities a sentence of at least 20 years would have been within the appropriate range. But because of P's early plea of guilty by way of ex officio indictment, his ready admissions to the police and his cooperation, a lesser penalty was warranted. These factors always justify significant amelioration of the sentence, especially in cases of this sort, where the offender's cooperation and early indication of plea saves the victims from the concern that their complaints may not be believed and the additional trauma of giving evidence and being cross-examined at committal or trial. The sentence imposed of 17 years imprisonment was within the appropriate range and adequately reflected both the extreme seriousness of P's conduct and the tempering effect of mitigating factors. See, for example, R v Ruhland[1] and R v H.[2]
- Both parties accept that Part 9A of the Penalties & Sentences Act 1992 applies to counts 44, 45, 49 and 50. There remains some confusion as to whether Part 9A has application to the sentences of 17 years imprisonment imposed in respect of the counts of maintaining a sexual relationship with a child under 16 years with a circumstance of aggravation (counts 51 and 52).
- Part 9A of the Penalties & Sentences Act 1992 came into force on 1 July 1997. At sentence, the prosecutor submitted that because the period of the maintaining in both counts 51 and 52 in part preceded 1 July 1997, Part 9A had no application. Mr Griffin SC for P relies on that concession. He further submits that, in any case, as the offences of maintaining with a circumstance of aggravation rely upon proof of a combination of three or more separate sexual offences being committed (s 299B(2) Criminal Code and R v KBT[3]), then Part 9A can have no application unless those three offences occurred between 1 July 1997 and the last date of the maintaining charge.
- Mr Rafter for the Attorney-General submits the prosecutor's concession was wrongly given and contends that this case is analogous to R v Ianculescu.[4] That case involved an offence of trafficking between dates which, as here, preceded and postdated the coming into effect of Part 9A. Cullinane J, with whom Ambrose J agreed, noted that the offence of trafficking is a continuing offence and the applicant's guilty plea was an acknowledgment that he carried on the business of trafficking between the dates stipulated in the indictment. Although this Court has previously held in R v Mason and Saunders[5] and R v Truong[6] that Part 9A does not apply to offences committed prior to 1 July 1997, Cullinane J concluded that a continuing offence constituted by a course of conduct, such as carrying on the business of unlawfully trafficking in a dangerous drug, must be regarded as an offence committed throughout the period concerned and Part 9A has application.[7]
- The offence of maintaining a sexual relationship with a child is relevantly described in s 229B Criminal Code as follows:
"(1)Any adult who maintains an unlawful relationship of a sexual nature with a child under the prescribed age is guilty of a crime and is liable to imprisonment for 14 years.
- A person shall not be convicted of the offence defined in sub-section (1) unless it is shown that the accused person, as an adult, has, during the period in which it is alleged that he or she maintained a relationship in issue with the child, done an act defined to constitute an offence of a sexual nature in relation to the child, other than an offence defined in section 210(1)(e) or (f), on three or more occasions and evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions."
- Section 229B(3) provides for a maximum penalty of life imprisonment if, in the course of the relationship, the offender has committed an offence of a sexual nature for which the offender is liable to imprisonment for 14 years or more.
- Mr Griffin seeks to distinguish the offence of maintaining a sexual relationship with a child under s 229B from the offence of trafficking by reliance on the following words of Brennan CJ, Toohey, Gaudron and Gummow JJ in KBT:[8]
"The offence created by s 229B(1) is described in that sub-section in terms of a course of conduct and, to that extent, may be compared with offences like trafficking in drugs or keeping a disorderly house. In the case of each of those latter offences, the actus reus is the course of conduct which the offence describes. However, an examination of sub-s (1A)[9] makes it plain that that is not the case with the offence created by s 229B(1). Rather, it is clear from the terms of sub-s (1A) that the actus reus of that offence is the doing, as a adult of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions. Once it is appreciated that the actus reus of the offence is as specified in sub-s (1A) rather than maintaining an unlawful sexual relationship, it follows, as was held by the Court of Appeal, that a person cannot be convicted under s 229B(1) unless the jury is agreed as to the commission of the same three or more illegal acts."
- Those comments must be read in context: a consideration of whether it was necessary to direct the jury about the requirement of unanimous satisfaction as to the commission of the same three acts constituting offences of a sexual nature before they could convict an accused person of an offence charged under s 229B(1) Criminal Code.
- I do not understand the court in KBT to be denying that the offence created by s 229B(1) also requires the continuing act of maintaining an unlawful relationship of a sexual nature. "Maintain" is not defined in the Criminal Code, but the Australian Concise Oxford Dictionary 1992 defines "maintain" as "cause to continue, keep up, preserve"; this involves a period of continuity. Whilst the plain meaning of s 229B(2) and KBT make it clear that the offence created by s 229B(1) cannot be made out unless the jury is unanimously agreed as to the commission of the same three or more illegal acts, the commission of those acts alone will not result in the commission of an offence under s 229B unless the conduct also constitutes the maintenance of an unlawful relationship of a sexual nature with a child: see KRM v The Queen;[10] R v S;[11] R v L[12] and R v A.[13] Like trafficking, an offence under s 229B is a continuing offence and is committed throughout the period charged: see R v H.[14]
- Nevertheless, there may be some merit in Mr Griffin's argument as to count 51. That count states the period of the maintenance of the unlawful relationship in the course of which P committed the circumstance of aggravation of sodomising the child, as between 1 May 1996 and 7 December 1997. This is curious as serious offences of sodomy (counts 44 and 45) were committed upon BJR after 7 December 1997. Admissions made by P support in a general way the commission of three acts of a sexual nature within s 229B(2) (including an act of sodomy constituting the circumstance of aggravation) between the coming into force of Part 9A and 7 December 1997. The admissions do not unequivocally establish this, however, and nor do the counts in the indictment or the matters contained in the schedule to which P has admitted his guilt.
- In R v H[15] Thomas JA, with whom McPherson JA and Mackenzie J agreed, noted:
"… the maintaining charge spanned a period both before and after 1 July 1997 when the serious violent offence provisions came into operation. However, on the basis of this Court's decision in Ianculescu [2000] 2 Qd R 521, if part of the maintaining period occurs after 1 July 1997 the Part 9A regime will apply to the offence taken as a whole.
In my view, by continuing to offend after that date the applicant became subject to that regime and it would not be appropriate for the Court to engage in a discounting exercise in respect of acts committed before 1 July 1997. This, I think, is consistent with the approach also taken by the High Court in Siganto v The Queen (1998) 194 CLR 656."
- It is not clear from the ex tempore reasons in H whether in that case at least three offences within s 229B(2) occurred after the coming into force of Part 9A.
- Mr Rafter concedes that it becomes academic that whether or not Part 9A has application to the sentence imposed on count 51 if Part 9A applies to the sentence imposed on count 52. That offence charged P with maintaining an unlawful relationship of a sexual nature with LJR between 1 September 1996 and 27 December 1998, and that in the course of the relationship P sodomised the child. P pleaded guilty to count 49 (unlawful sodomy) and count 50 (permitting unlawful sodomy) both of which involved LJR and occurred between the coming into force of Part 9A and the period of the maintained relationship. In addition, P admitted his guilt in the schedule to offences of a sexual nature with s 229B(2) Criminal Code committed in that time frame (offences 168, 180, 182 and 183).
- The result is because there are more than three specific offences to which P has admitted his guilt which occurred between the coming into operation of Part 9A and the period of the maintaining (counts 49 and 50 in the indictment and the schedule offences 168, 180, 182 and 183) and at least one of those offences involved the circumstance of aggravation set out in s 229B(3), then Part 9A unquestionably has application to the 17 year sentence imposed.
Summary
- The sentence imposed was within the appropriate range.
- Part 9A has application to the sentences imposed on counts 44, 45, 49, 50 and 52. No declaration under Part 9A was made by the learned sentencing judge but the failure to make that declaration does not affect the fact that P has been convicted of serious violent offences and is no reason to allow the appeal: see s 161B(2) Penalties & Sentences Act 1992.
- I would dismiss the appeal against sentence and refuse the application for leave to appeal against sentence.
- WILLIAMS JA: The facts are fully set out in the reasons for judgment of the President. I agree with her reasons for concluding that the appeal by the Attorney‑General against sentence should be dismissed, and the offender's application for leave to appeal against sentence should be refused. The offences committed clearly establish that this case is one of the most serious instances of a male person, whilst having young boys under his care, committing sexual offences against those boys. However, to impose a life sentence, as contended for by the Attorney‑General, would result in the Court ignoring the requirements of s 9(2)(i) and s 13 of the Penalties and Sentences Act 1992. Particularly given the offender's age, 56 at the time of sentence, a sentence of 17 years imprisonment, bearing in mind that it necessarily involves a conviction for a serious violent offence, is within the appropriate range. I agree with the orders proposed by the President.
- CHESTERMAN J: I agree that the appeal against sentence brought by the Attorney-General should be dismissed and that the application for leave to appeal against sentence brought by the prisoner should be refused for the reasons given by the President. The prisoner’s criminal conduct can only be described as appalling. Many of the boys, now young men, who were subjected to his depravity continue to suffer psychologically from their experiences. The case called for severe punishment, but it is impossible to regard a term of imprisonment of 17 years, 80 per cent of which must be served before the prisoner will be eligible for parole, as other than a severe sentence. It is, in my opinion, impossible to regard it as manifestly inadequate. However disgraceful though his conduct was, the prisoner was entitled to have the factors of mitigation described by the President taken into account in amelioration of the sentence otherwise applicable. To impose a sentence of life imprisonment or, indeed, one greater than the 17 years actually imposed would not give effect to those circumstances of mitigation.
ORDER:
The appeal against sentence is dismissed.
The application for leave to appeal against sentence is refused.
Footnotes
[1] CA No 147 of 1999, 15 October 1999.
[2] [2001] QCA 167; CA No 40 of 2001, 1 May 2001.
[3] (1997) 191 CLR 417.
[4] [2000] 2 Qd R 521.
[5] [1998] 2 Qd R 186.
[6] [2000] 1 Qd R 663.
[7] [2000] 2 Qd R 521, 528.
[8] (1997) 191 CLR 417, 422.
[9] This was renumbered as s 229B(2); Act No 3 of 1997, s 33 opn 1 July 1997.
[10] [2001] HCA 11, 8 March 2001, McHugh J at [68], Kirby J at [82], [102].
[11] [1999] 2 Qd R 89, 91-92.
[12] [1996] QCA 316, CA No 173 of 1996, 17 July 1996, p 10.
[13] [2000] QCA 520, 19 December 2000.
[14] [2001] QCA 167, CA No 40 of 2001, 1 May 2001.
[15] [2001] QCA 167, CA No 40 of 2001, 1 May 2001, 8.