R v CCC[2001] QCA 39

THE CHIEF JUSTICE:  The especially unusual feature of this case is that the applicant, when 43 years old, fell to be sentenced on his pleas of guilty for offences committed when he was between the ages of 13 and 16 years.

They were 21 instances of indecent dealing with boys under 14 years of age. The six complainants were aged between seven and 13 years. One gathers that their participation was the consequence of some pressure from the applicant. The acts involved included mutual masturbation, oral sexual encounters and so-called simulated anal intercourse.

There was no penetration and no violence, but some of the complainants have spoken of a substantial residual emotional disturbance. One of them complained to the police two years ago and that brought the other cases to light. The applicant required the giving of evidence at a committal from the complainants, but that is said to have been warranted in order to condense the charges into acceptable form.

At the conclusion of the committal, the applicant foreshadowed his pleas of guilty. Section 107B(2) of the Juvenile Justice Act obliged the learned sentencing Judge, sentencing the applicant as an adult, to have regard to the sentence that might have been imposed upon him if sentenced as a child.

The Judge referred to this. It was agreed upon before the Judge that the applicant could, if sentenced as a child, have been sentenced to up to two years’ imprisonment, as being the possible maximum under the then applicable Childrens Services Act section 62(1)(i).

While it is true that the Judge did not refer to section 107B(2) expressly in his sentencing remarks, that obviously does not mean that he was oblivious to those provisions. The circumstance that the applicant committed the offences when a child was at the forefront of the extensive discussion which preceded the actual sentencing.

It cannot reasonably be said in my opinion that, for this offending, had the applicant been sentenced as a child, he would not have been detained. The learned Judge sentenced the applicant to 12 months’ imprisonment on each count, concurrently, suspended after three months for an operational period of two years.

Counsel before the Judge had effectively agreed on a 12 month head sentence, defence counsel contending that it should be fully suspended, with the prosecutor conceding that that might be reasonably done in the sense that it would be within range.

That concession was not, of course determinative of the Judge’s approach. The Judge noted that the applicant had himself been sexually abused as a child by a clergyman. He was also acutely conscious that the applicant offended in these instances when a child, as I have said.

He appears to have accepted that the applicant’s sexual problems were behind him. But, allowing for these features, and the many years which had elapsed between the offending and the present time, the Judge was nevertheless moved by the need for general deterrence and the applicant’s subsequent criminal history, to require that he serve three month’s actual imprisonment.

While that subsequent history does not include offences like these, it includes a number of drug convictions and, most recently, a conviction for assault occasioning bodily harm for which he was sentenced to six months’ imprisonment suspended after 109 days for two years.

He was not therefore, by the time this Judge sentenced him, to be seen as a completely rehabilitated person. The 12 month terms imposed reflect the seriousness of the offending and the need for general deterrence, with the suspension after three months acknowledging the aspects of age, delay, the pleas and the applicant’s personal circumstances.

It was suggested before us that the Judge had not apparently turned his mind to the possibility of a fully suspended sentence, but that option was expressed before him. He must be taken to have rejected it as inappropriate. That flows from his having partially suspended the term.

I cannot, in all these circumstances, conclude that the learned Judge erred in principle or in his process or that the sentences imposed are manifestly excessive. I would accordingly refuse the application.

DAVIES JA:  I agree.

MULLINS J:  I agree.

THE CHIEF JUSTICE:  The application is refused.

MR KIMMINS:  Would your Honour be prepared to allow any warrant to stay for seven days?

THE CHIEF JUSTICE:  No objection, Mr Weston?

MR WESTON:  No objection thank you, your Honour.

MR KIMMINS:  Thank you, your Honour.

THE CHIEF JUSTICE:  A warrant should issue for the arrest of the applicant to lie in the Registry for a period of up to seven days pending any necessary execution.