R v AS[2004] QCA 220

SUPREME COURT OF QUEENSLAND

[1]  McPHERSON JA:  I agree with the reasons of Jerrard JA and those of Williams JA.  The application should be disposed of as proposed in the reasons of Jerrard JA.

[2]  WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of Jerrard JA.  I agree with him that there were a number of unusual features about this case which justified placing more emphasis on the mitigating factors present.  I would add to the facts outlined by Jerrard JA that the material placed before the sentencing judge did not indicate the circumstances in which the commission of the offences came to light.  Further, nothing in the nature of a victim impact statement was placed before the court.

[3] Of the authorities referred to R v C [2002] QCA 46 is, in my view, the most helpful.  That was a worse case because of the breach of trust involved.  Also the offender’s criminal history was far worse; it included amongst other convictions one for assault occasioning bodily harm and another for aggravated assault on a female for which he was sentenced to three months imprisonment.

[4] In the circumstances I agree with Jerrard JA that to give effect to all the mitigating factors present here the head sentence should have been suspended after six months with an operational period of two years. 

[5] I agree with the reasons of Jerrard JA and with the orders he has proposed.

[6]  JERRARD JA:  On 4 June 2004 AS pleaded guilty in the Southport District Court to one count of unlawful carnal knowledge of a child under the age of 16 years, two counts of unlawfully and indecently dealing with a child under 16 years, and two counts of unlawfully permitting himself to be indecently dealt with by a child under 16 years.  He was sentenced to 12 months imprisonment.  He seeks leave to appeal the severity of that sentence.

[7] The offence of unlawful carnal knowledge, and one offence each of unlawfully and indecently dealing with a child and unlawfully permitting himself to be indecently dealt with by a child, were committed on an unknown date between 1 October 1999 and 31 March 2000 at the Gold Coast.  The other two offences were committed on 24 March 2001.  The same complainant child was the victim in each offence.  She was aged 13 when the first three offences were committed, and 14 when the second lot of offences occurred.  AS was aged 39 when he committed the first series of offences.  He was 42 when sentenced.

[8] He had an essentially irrelevant criminal history, consisting of six offences of driving a motor vehicle with above the prescribed concentration of alcohol in his blood, with five of those offences occurring in the 1980’s and the last on 5 December 1990.  The Crown had accepted that he had made an early intimation of his intention to plead guilty, and he was sentenced on agreed facts.

[9] A schedule setting out those facts was exhibit 2, and was supplied to this court.  In respect of the first group of offences it records that on the night the offences occurred the complainant had been to a concert with a friend, whose mother drove the complainant home.  The complainant then went to AS’s house, as she knew that he was holding a party.  When she arrived a number of people were playing pool, drinking and talking, and she played some games of pool and watched television.  She had some alcohol.

[10]  Later in the night and after all the guests had left, the complainant sat on a futon and watched TV with AS.  Between them they consumed approximately three quarters of a full bottle of port.  She then lent down and placed her head on AS’s thigh area, and a little while later he kissed the crown of her head.  He then kissed her lips, she kissed him, and after some more kissing he asked her if she wanted to go to the bedroom.  He walked into a spare room and she followed him.  Consensual sexual intercourse then occurred, followed by consensual oral intercourse performed by each.  During those events the complainant and AS heard someone else walking around inside the house, possibly AS’s sister who was staying there, and they sat against the door to prevent that person entering.

[11]  Afterwards each dressed and the complainant left the room some five minutes after AS did.  When she left she saw some three or four people seated on the futon, and she sat on the couch for about two hours while AS played pool.  She then went home, and on arrival told her mother that she had fallen asleep on AS’s couch.

[12]  The second set of offences occurred about one year later, on an occasion when the complainant went with two friends of hers to the movies with AS.  They had walked to his house, and he drove all three to the cinema.  He sat next to her.  She described having undone the fly to his shorts and played with his penis, and that either before or after that occurred he had touched her groin by placing his hand inside her panties and placing his hand upon her vulval area.  One of the other two females heard the complainant “huffing and puffing”, and saw that AS appeared to have his hand down the front of the complainant’s skirt.  The complainant’s hand was covering AS’s.

[13]  The prosecuting counsel informed the learned sentencing judge that following the first sexual dealings between AS and the complainant, AS had written to her and told her they should wait until she was old enough before they continued their relationship.  Counsel also informed the learned judge that AS was under the influence of alcohol when those first offences occurred.  Counsel submitted that the age discrepancy between AS and the complainant was a concerning feature, and that while the Crown accepted that the events had occurred with the consent of the complainant, a deterrent sentence of 12 to 18 months was submitted as the appropriate sentence, with the Crown conceding that an appropriate order could include either partially or wholly suspending that sentence.

[14]  Counsel for AS informed the learned judge as follows.  AS was now in a de facto relationship, which had commenced soon after the commission of the last offence, and was financially supporting his partner and her child.  The partner was not employed in the work force.  AS had served in the Royal Australian Navy between 1978 and 1985, receiving an honourable discharge; and the complainant had first become known to him when her family moved into the house across the road from his.  Her father would frequently socialise with him and bring the complainant over as well.  Over time she had confided in AS quite a lot about her personal life, and there appeared to counsel to have been a degree of non-sexual intimacy between the complainant and AS over a period of time.  Since the second offences occurred AS had moved to Bundaberg where he had obtained permanent employment.  Counsel told the court AS had expressed remorse for his behaviour, and counsel submitted that a fully suspended sentence was appropriate.

[15]  The learned judge stated when sentencing AS that the case was “somewhat unusual”[1], compared to the norm, in that the complainant was very much a willing party and that AS was neither forcing himself upon her nor threatening her, nor using his position to cajole her into committing sexual acts.  Nevertheless the learned judge held that AS’s conduct involved very serious acts of sexual intercourse, oral sex and mutual masturbation.  They had occurred on two separate occasions, and that although he had pleaded guilty and shown remorse, deterrence was a very significant factor in cases such as this.  The judge remarked that it was important that the community was aware that people who engaged in sexual intercourse with children, particularly where there was a significant age disparity, were likely to receive significant sentences.  The learned judge expressed the view that a sentence of about 18 months imprisonment was appropriate, but that taking into account AS’s plea of guilty and lack of relevant convictions, the judge would reduce the head sentence on the unlawful carnal knowledge count to 12 months.  The judge imposed concurrent six month terms in relation to all other counts.

[16]  The complaint made on AS’s behalf is that his plea of guilty deserved more than merely a reduction in the head sentence of imprisonment, and that the public benefit from deterrent sentences must be weighed against the advantage of encouraging sexual offenders to admit their crimes, that encouragement coming from the knowledge that more lenient sentencing could confidently be expected.  The applicant also submitted that the learned judge ought to have given greater weight to the submission on penalty made by counsel for the Crown, and that not having done so further demonstrated that the plea of guilty was not sufficiently taken into consideration.  The applicant’s counsel referred to Cameron v R (2002) 209 CLR 339 at [14], [39] – [41], and [65] – [69], and to the remarks therein of differing High Court Justices, all recognising the public interest in allowing a reduction of sentence for those who have pleaded guilty.  Counsel also referred to R v Ryan ex parte A-G of Qld [2000] QCA 401 and to the remarks of Thomas JA, which gave some weight to the fact that at first instance a Crown Prosecutor had conceded that a wholly suspended sentence would be within range.

[17]  The Crown referred the court to the sentence imposed by this court in the matter of R v T; ex parte Attorney-General [2002] QCA 132, in which a three year sentence was imposed on appeal.  That offender had been originally sentenced to two years imprisonment for offences of carnal knowledge with a circumstance of aggravation, and indecent dealing with a circumstance of aggravation.  That offender had been 43 when the offences occurred, and the complainant almost 13.  That complainant was a friend of one of the offender’s daughters, and the offences were committed on two separate occasions when the complainant stayed over-night at that offender’s home for sleep overs.  Mr T and that complainant child lived in the same street.

[18]  The first offending occasion involved Mr T approaching the complainant about 1.00 a.m. in the kitchen when she had gotten up to get a glass of water, kissing her and rubbing her on her vulva, then leading her into the backyard where intercourse occurred.  She described feeling really scared when he had indecently dealt with her in the kitchen, and experiencing considerable pain during intercourse.  She had not made a complaint for fear that she would get into trouble.

[19]  The second offending behaviour occurred some two months later, and on this occasion Mr T came into the room where the complainant was staying and took her from that room into his.  He had sexual intercourse and then subsequently an act of oral sex.  Some eight days later the complainant told her mother about the events, and Mr T was then recorded in a telephone conversation admitting to having sexual intercourse with the complainant.  He was later interviewed by police and admitted both occasions of intercourse. 

[20]  In that matter there was an early plea of guilty, a full hand up committal, and the sentencing judge accepted that Mr T was genuinely remorseful.  The judge was also satisfied that the complainant had been emotionally scarred by the offences, which were aggravated by the fact of her being in Mr T’s care at the time they occurred; and her consent to them amounted to no more than simply putting up with what was occurring.

[21]  McPherson JA considered there were four major considerations plainly justifying allowing the Attorney-General’s appeal and increasing the sentence from one of two years.  Those were the discrepancy in ages (little different from the discrepancy in this case), the fact that the offence of unlawful carnal knowledge was repeated shortly afterwards (not present here), the fact the complainant was under the offender’s care (not present here), and that the maximum penalty for the offence was sharply increased from five to 14 years in 1997 (also relevant here).  Those matters were considered to justify an increase in the sentence from two to three years imprisonment for the offences of unlawful carnal knowledge.

[22]  The offences committed by Mr T did have the specific aggravating feature alleged in that indictment that the complainant child was under his care, and the other features just mentioned.  They make an obvious difference between that case and this one.  Closer to the present case is R v C [2002] QCA 46, in which that applicant was sentenced to 12 months imprisonment for one offence of unlawful carnal knowledge.  He had pleaded guilty and was 39 or 40 at the time of the offence, and that complainant was 15 years and nine months.  This court placed significance on his having been in a position of seniority in a family unit, and that an element of breach of trust was involved.  He had committed the offence when the complainant, who lived with foster parents, was visiting her mother, with whom that applicant lived.  He had a number of prior criminal convictions, and there was no evident remorse. 

[23]  The conclusion that C lacked remorse for his conduct was drawn from the fact that on a later occasion that applicant had invited the complainant to have sexual intercourse with him again, but she had declined, telling him that she was concerned about the age difference between them.  His response was words to the effect “how does the age difference matter at all?”  That attitude, and the fact he had attempted to repeat sexual intercourse between them, sharply distinguishes the offending behaviour in that case from this one.

[24]  In that case McPherson JA, with whom Davies and Williams JJA agreed, stated that the sentences imposed in the two earlier matters of R v S; ex parte Attorney-General [1996] QCA 409 and R v Regan [1997] QCA 477 were of limited assistance because of changes to the maximum penalty for the offences in question.  In both of those decisions sentences of six months imprisonment were not disturbed by this court, although described as lenient in the judgment in R v S.  That offender had been 33 years old and the complainant 14 and a half at the time that offender committed eight offences of unlawful carnal knowledge.  He had had no prior convictions, had moved into the complainant’s family home when her mother sustained a back injury, and very soon after made improper advances to that complainant resulting over time in the commission of the eight offences.

[25]  I respectfully consider that while the sentence of 12 months imprisonment imposed here is within the range approved in R v C, a decision of this court after the legislated increase in the maximum penalty from five to 14 years, the admittedly unusual circumstances of this case were not sufficiently taken into account in the sentence imposed.  Those unusual circumstances included the plainly consensual nature of the two sets of offences, AS’s recognition of his wrong doing in his correspondence with the complainant, and the fact that he does not appear to have pursued her; and then there were the more commonly occurring circumstances of both his pleas of guilty and his apparent actual remorse.  There are also his personal circumstances of providing financial support for his partner’s child and his having obtained employment.

[26]  I agree with the submission of Mr Morris QC for the applicant that appropriate recognition of those powerful mitigating factors balanced with the need for general deterrence of this variety of offences would have been achieved by a partly suspended sentence, as the Crown described, and that the sentence imposed was manifestly excessive.  If none of the admittedly unusual circumstances referred to herein and by the learned sentencing judge had been present, and if the matters in mitigation were simply the plea of guilty and asserted remorse, the sentence imposed would have appeared unchallengeable.  When those other circumstances are taken into consideration, the sentence appears harsh when compared with that imposed in R v C.  In that case McPherson JA remarked that had it not been for the increase in the maximum penalty he would have been inclined to think that that head sentence of 12 months was a little high and had not reflected the plea of guilty in that case.  That applicant’s position in the complainant’s family unit, criminal history, and lack of remorse, were features specifically identified by McPherson JA as relevant to the sentence imposed there, and which are not present here.  In my respectful judgment the head sentence was appropriate, but the learned sentencing judge ought to have ordered that it be suspended after AS had served six months of that term, such suspension to be for an operative period of two years.

[27]  Accordingly, I would order that the application for leave be allowed, and the appeal allowed to the extent of ordering that the sentence of 12 months imprisonment imposed for the offence of unlawful carnal knowledge be suspended after AS has served six months of that term, such suspension to be for a period of two years.