R v F; ex parte Attorney-General
[2003] QCA 297
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- R v F; ex parte Attorney-General[2003] QCA 297
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R v F; ex parte Attorney-General[2003] QCA 297
R v F; ex parte Attorney-General[2003] QCA 297
SUPREME COURT OF QUEENSLAND
CITATION: | R v F; ex parte A-G (Qld) [2003] QCA 297 |
PARTIES: | R v F (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant) |
FILE NO/S: | CA No 159 of 2003 DC No 2947 of 2002 |
DIVISION: | Court of Appeal |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED EX PARTE ON: | 16 July 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 July 2003 |
JUDGES: | de Jersey CJ, Mackenzie and Helman JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Appeal dismissed |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent pleaded guilty to sexual offences committed several years earlier – where respondent had entered into agreement with complainants’ guardians as to compensatory payment, psychiatric counselling and apology – where no subsequent offending – whether term of actual imprisonment appropriate R v G; ex parte A-G (Qld) [1999] QCA 477; CA No 303 of 1999, 16 November 1999, distinguished R v P; ex parte A-G (Qld) [2002] QCA 421; CA No 172 of 2002, 10 October 2002, distinguished |
COUNSEL: | M J Copley for the appellant A W Moynihan for the respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent |
THE CHIEF JUSTICE: The Attorney-General appeals against sentences imposed on the respondent for sexual offences to which the respondent had pleaded guilty. Eight of the offences committed in 1981 and 1982 when the respondent was aged 15 to 16 years concerned his seven year old nephew and nine to 10 year old niece. The other eight offences were committed in 1984 and 1985 when the respondent was 17 to 18 years old. They concerned his nephew, then aged nine to 11, his niece then aged 12 or 13, and in one instance of indecent treatment, another nephew aged five or six.
For the offences committed while the respondent was himself a child, the respondent was subjected to a 12 months' good behaviour bond, and for the offences committed while he was an adult, he was sentenced to three years' imprisonment wholly suspended for three years. It is in respect of the latter penalty that the Attorney-General appeals.
The juvenile offending involved masturbation, oral sex, sodomy of the nephew, attempted intercourse with the niece and indecent treatment of the children. The complainants had exhibited some reluctance to participate.
The Judge took the view that what occurred bore some of the characteristics of pre-pubescent or early pubescent sexual experimentation. But when the respondent was an adult and concededly appreciated that what he was doing was wrong, the respondent continued with his offending, including compelling the nine or 10 year old nephew to commit an act of oral sex upon him while the two of them were on the roof of a house, placing a running water hose into the anal passages of the nephews, and committing sodomy on the 10 year old nephew against his opposition. There was other offending.
The three year head term for the last and most serious instance of the adult offending, that is, the act of sodomy just mentioned, was within an appropriate range of penalty. The question is whether the learned Judge erred in principle by fully suspending that term.
The Queen v. P, Court of Appeal 172 of 2002 and G (1999) Queensland Court of Appeal 477, would suggest to me that a person offending in this way should ordinarily be required to serve a term of actual imprisonment.
The learned Judge properly referred to the circumstances of the respondent's otherwise unblemished criminal history, his pleas of guilty, his remorse, his subsequent reasonable work history, the circumstance that he was himself sexually abused as a child and suffered a degree of psychological dysfunction including blurring of the perception of appropriate sexual boundaries at the time of this offending, and that on the expert evidence, the respondent was not at risk of re-offending in any realistic sense.
On the other hand, two of the complainants have apparently and understandably suffered serious continuing adverse consequences from this misconduct. The Judge reasonably identified the issues of general deterrence and community denunciation as of prime relevance of the sentencing criteria.
Reading the Judge's sentencing remarks, he appears to me to have been particularly influenced not to imprison the respondent by the circumstance that when he, the respondent, was about 18 years old, the older nephew victim, then about 10, told his mother, who was the respondent's sister, about what had happened. That led to a lengthy discussion and the respondent's accepting that he should undertake psychiatric counselling, which he did.
The respondent subsequently apologised to his complainants as suggested by the psychiatrist and offered to help them, and did so from time to time over the following years. It had been agreed at the earlier stage that if the respondent proceeded in that way, the matter would not be reported to the police. The learned Judge said:
"The fact that these offences have been dealt with by the family is a significant factor to take into account in weighing the competing considerations in this case. I do not wish to overstate the matter. It is by no means a determinative factor but I think it is a significant one."
Notwithstanding that arrangement, the matters were nevertheless reported two or three years ago to the police in circumstances where the respondent refused when requested to pay money to the older nephew in order to avoid any reporting.
At the time of the earlier arrangement, the relevant complainants must have been, in the case of the nephew who did ultimately complain, 10 years old, and in the case of the niece, 12 or 13 years old. The arrangement had been apparently satisfactory to their mother and other adults involved in the matter, but not with hindsight to the complainants, or certainly the nephew, upon their reaching mature years.
The most serious aspect of the case arises in my view from the serious offence committed on the 10 year old nephew when the respondent was 18 and appreciating the wrongfulness of his conduct. That act of sodomy caused the nephew substantial pain and during the act he was crying.
The maximum penalty applicable to that offence was 14 years' imprisonment. It occurred against a background of threats of reprisal were the complainants to reveal what was happening. In particular, the previous year in respect of the offence committed upon the roof, the respondent had threatened to kill the nephew, then nine or 10, by throwing him off the roof into the street if he should tell anybody about what had happened.
Now in the usual way that sort of offending should, in my firm view, lead to actual imprisonment, even where the offending has as it were grown out of a previous course of conduct characterised by a deal of sexual experimentation among very young persons.
That said, the issue now is whether the Judge acted unreasonably in not actually imprisoning the respondent, essentially as I read his remarks, because of the combination of circumstances which might be said to be favourable to him for sentencing purposes, which I now list: the pleas, the remorse, the degree of psychological dysfunction in the respondent at the time, including blurring of his perception of appropriate sexual boundaries, his rehabilitation, his work history, the absence of any real risk of re-offending on the expert evidence put before the Court, and in particular, the arrangement reached in about 1984 to which the respondent adhered, warranting the conclusion that he was concerned to rehabilitate himself and did so effectually as borne out by his lack of subsequent re-offending.
It must be said that that last circumstance in particular, of which I earlier gave some greater detail, gives this case a unique flavour. I am not satisfied that the aggregation of those circumstances, giving weight to the last mentioned one, did not warrant, in this very unusual case, the full suspension which the Judge ordered. Put another way, I am not satisfied that the learned Judge was effectively obliged in this particular case to order actual imprisonment, such that on this Attorney's appeal, we would now be justified in withdrawing the respondent from his present liberty in order that he serve a short term of imprisonment.
I should say, however, that in my view, but for that unusual approach taken in 1984 and its consequences - that is, the rehabilitation which we now, through lack of subsequent offending, may see to have been effectual, a combination of circumstances which might be characterised as an example of what is currently styled restorative justice - I would have considered actual imprisonment in a case like this, of the order of four months, inevitable.
I would dismiss the appeal.
MACKENZIE J: I have thought that this was an exceptionally difficult case because of the competing considerations referred to in detail by the Chief Justice. However, on the issue whether it is inevitable that part of the sentence must be served as a custodial sentence, I am of the same view as the Chief Justice. I agree with the order proposed.
HELMAN J: I agree.
THE CHIEF JUSTICE: The appeal is dismissed.