R v Dillon[2003] QCA 305

SUPREME COURT OF QUEENSLAND

MACKENZIE J:  The applicant pleaded guilty to four offences of maintaining a sexual relationship with children under 12.  All offences were committed at the caravan park where the applicant and the children lived. 

Count 1 charged an offence between the 1st of September 2001 and the 4th of September 2002 in respect of a girl who was five to seven years of age at the time.  Count 2 charged an offence between the 1st of April 1999 and the 1st of March 2000 in respect of a boy aged four to five years.  Count 3 charged an offence between the 1st of January 1999 and the 1st of September 2000 in respect of a boy of seven to eight years.  Count 4 charged an offence between the 1st of August 2001 and the 1st of August 2002 in respect of a boy of seven years of age.

There was also a charge of an isolated act of indecently dealing involving touching the anus and penis of a fifth child of seven years in June 2002.  The applicant's acts alleged in counts 1 to 4 did not involve penetration.  They fell within the general description of fondling or masturbating the child's private parts, getting them to masturbate him and asking them to commit oral sex acts upon him.  The last mentioned requests seem to have been refused by the children.

The conduct was discovered on the 7th of September 2002 when it was reported to the parents of the girl in count 1 that he had been seen with his hand in her pants.  He was interviewed the same day and made full admissions which form the basis of the charges.  He pleaded guilty without the need for the children to give evidence.

On counts 1 to 4 he was sentenced to eight years imprisonment, a serious violence offence order was made and he was ordered to report to the police in terms of section 19(1)(d) of the Criminal Law Amendment Act, but with the additional requirement that he report not only upon changing his address but also once a month for 20 years.  There was no power to make the last requirement and that must be corrected in any event.

The applicant also complains that the sentence was manifestly excessive and that the serious violent offence declaration should not have been made in the circumstances of the case.  He was sentenced to six years imprisonment on count 5.

The applicant was 54 to 57 at the time of the offences.  He was a BCC bus driver.  He had been sentenced to three and a half years imprisonment in 1982 for indecently dealing with a boy under 14.  According to a psychiatric report from Professor Whiteford prepared for the sentence the applicant had a long term paedophilic arousal pattern which the applicant said he was unsuccessful in controlling at times in his life.  He had, however, voluntarily sought treatment on several occasions in the past one period of which lasted for about 12 months.

Professor Whiteford thought that the applicant was suitable for the sexual offenders treatment program in prison because of his past motivation to seek help.  However, in light of his relapse after a period of treatment the applicant's submission that he had previously responded to treatment favourably must be treated with extreme caution.

The Crown Prosecutor submitted below that a sentence of the order of six and seven years imprisonment was appropriate.  The applicant's counsel submitted that the comparable authorities suggested a range of four and a half to seven years.  The learned sentencing Judge said that in her view a sentence of 10 years was supported by authority and that the sentence of eight years actually imposed allowed for the plea of guilty on ex officio indictment.

The issue of a serious violence offence declaration was not raised initially by the Crown Prosecutor but when it was raised by the learned sentencing Judge he said it was a case where she could consider exercising her discretion in the circumstances of the case.

Before us it was conceded by counsel for the Director that it could not be maintained that a sentence of eight years was within the appropriate range.  In my view that is a proper concession.  The schedule provided shows that offences attracting the level of penalty used as a starting point by the learned sentencing Judge involved worse conduct than in this case, typically sexual intercourse, sodomy or incest with a child of immature age or mental or physical disability, or a background of actual violence.

Any kind of sexual abuse of a young person is inherently serious because of the potential to cause psychological harm of the kind referred to in the victim impact statements, but the conduct in the present case does not have the features that put it in the most serious category of these offences.

The learned sentencing Judge's sentencing remarks implying that cases where sentences of 10 to 12 years were imposed were comparable to the present case are not borne out by analysis of the schedule and the sentencing process is therefore flawed. 

Argument both below and before us focussed on The Queen v. S [2001] QCA 54, The Queen v. Fattoretto [1998] QCA 131, The Queen v. Smith Court of Appeal 178 of 1998 and The Queen v. TWB [2001] QCA 111.  None of those cases is exactly comparable factually but they support the conclusion that a sentence of six to seven years was the appropriate head sentence for offences of the level of overall seriousness demonstrated in this case, with appropriate allowance then being made from matters of mitigation.

In my opinion a sentence of six years which takes into account without further provision for earlier release relevant factors for and against the applicant, including his plea to an ex officio indictment, the sparing of the children from giving evidence and his previous conviction is appropriate.  In my view the case is not one that has the indicia that should exist for a serious violent offence declaration to be made.

The sentence of six years imprisonment for the offence in count 5 is also manifestly excessive.  In my view a sentence of two years imprisonment for that should be substituted.  I would therefore grant leave to appeal against the sentence imposed and allow the appeal.  I would order that the sentence and orders be set aside and in lieu thereof order that the applicant be sentenced to six years imprisonment on counts 1 to 4 and two years concurrent imprisonment on count 5. 

I would order that pursuant to the Criminal Law Amendment Act that it be ordered that upon release from custody, the applicant report his name and address to the officer in charge of the police Brisbane within 48 hours of his release, such order to remain in force for 20 years.  I would further order that 21 days imprisonment from the 10th of September 2002 to the 31st of September 2002 be taken into account as time already served.

I would simply add that the terms of the declaration made under the Criminal Law Amendment Act also will require the applicant to report any change of address within 48 hours of the change.

WILLIAMS JA:  I agree.

HELMAN J:  I agree.

WILLIAMS JA:  The order will be as indicated by Justice Mackenzie.