R v TL[2004] QCA 430

SUPREME COURT OF QUEENSLAND

1. JERRARD JA:  In this matter I have read the reasons for judgment of Jones J, and the orders proposed by his Honour, and respectfully agree with those reasons and orders, and with the additional remarks of White J.

2. WHITE J:  I have read the reasons for judgment of Jones J.  I agree with his Honour’s approach to the use which may be made of the convictions in respect of which the sentences are to be set aside by virtue of s 11 of the Criminal Code.  To ignore those convictions would, as his Honour points out, involve disregarding the offender’s character which the court is obliged to have regard to under s 9(2)(f) of the Penalties and Sentences Act 1992, and his antecedents which s 9(6)(g) requires to be taken into account when sentencing an offender for an offence of a sexual nature committed in relation to a child under 16 years. 

3. I agree with the orders proposed by his Honour.

4. JONES J:  On 11 June 2004 the applicant pleaded guilty to offences of a sexual nature detailed in five separate indictments in respect of five complainants respectively identified as B, T, L, P and O.  As a result, the applicant was convicted of nine counts of indecent treatment of a boy under 17 years of age, one count of attempted carnal knowledge against the order of nature of a boy, and two counts of indecent dealing of a boy under 12 years of age.  In all there were 12 offences against the five complainants.

5. The applicant was sentenced to four years imprisonment in respect of each offence; all penalties were to be served concurrently but cumulatively upon a term of imprisonment of two years for similar offences for which he had been sentenced on 13 October 2003.

6. That earlier term of imprisonment related to three similar offences, one involving B. The other two offences related to two complainants who were teenagers at the relevant time and involved acts occurring within the same period as covered by the indictments before this court.

7. The majority of the offences with which we are concerned were charged as having being committed between 1984-1986 during which time the complainants B, T and L each had their 16th birthday. At that time, s 210 of the Criminal Code provided for an offence of indecent treatment of a boy under 17 years which was punishable by a maximum of five years imprisonment. 

8. On 3 July 1989 there came into effect an amendment to s 210 providing for an offence of indecent treatment of a child under 16 years of age, the maximum penalty for which is now 14 years imprisonment.

9. The Crown concedes that it cannot establish whether the complainants had reached 16 years of age when the charges alleged during that period actually occurred. Consequently by reason of s 11 of the Criminal Code the applicant cannot be punished for unlawful acts which occurred during this period.  Section 11 provides:

“Effect of changes in law

11(1)A person cannot be punished for doing or omitting to do an act unless the act or omission constituted an offence under the law in force when it occurred; nor unless doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when the person is charged with the offence.”

10. In compliance with s 11 the sentences must be set aside in relation to the following counts:

In respect of complainant B - indictment 464/02 -counts 5 and 6

In respect of complainant T - indictment 465/02 -count 1

In respect of complainant L - indictment 466/02 -counts 1, 3, 4, 6 and 7.

11. That leaves for consideration by this court the sentences of four years imprisonment imposed for each of the following offences:

Complainant B (464/02) - attempted unlawful carnal knowledge against the order of nature (between 1985-1986)

Complainant P (245/03) - indecent treatment of a child under 16 years (in 2001)

Complainant O (327/03) - two counts of indecent treatment of a child under 16, the child being under 12 years of age (in 1994 and between 1998-2001).

12. The first matter which needs to be determined is whether the convictions now recorded in respect of the offences caught by s 11 should, like the sentences, be set aside. This was the course followed in R v VF^[1] upon the concession of the respondent’s counsel in the special circumstances of that case.  Mr Martin of counsel who appeared for the respondent before us was the counsel in that case.  Having distinguished the facts of the earlier case, he contended that convictions should not be set aside by reason of the operation of s 11.  Firstly, he relied upon the terms of the section which expressly limited its effect to the aspect of punishment.  Secondly, he identified a number of ways in which the conviction has relevance even though it does not lead to punishment.  For example, in the public interest, where an offence has been committed, then the complainant is entitled to have the fact of a conviction on the public record.  He referred also to the fact that a claim for criminal compensation is facilitated by the recording of the conviction even though the absence of a conviction would not necessarily deny the claim.

13. Mr Rafter, senior counsel appearing for the applicant, also submitted that the conviction should stand. From the applicant’s perspective, the recording of the conviction afforded some protection by preventing the preferment of other charges relating to the same acts such as, for example, indecent assault. Whether or not the laying of alternative charges was likely to be seen as an abuse of process, Mr Rafter saw some potential benefit to the applicant in having the convictions remain.

14. However, he took issue with the respondent’s submission that the conviction could be used to determine the appropriate penalty for the remaining punishable convictions. He argued that to use the convictions in this way would be tantamount to a punishment and therefore contrary to the prohibition imposed by s 11. On the basis that one would not have expected the Crown to proceed with charges had the uncertainty about the timing of the offences identified earlier, he argued that it would also be wrong in principle to have regard to the conduct upon which these convictions were based. He accepted that it would be legitimate to use the fact of the conviction in a non-punitive way, such as to rebut any suggestion that the behaviour constituting the punishable offences were one-off actions or conduct that was out of character for the accused. But otherwise he relied upon a passage from R v D which states: -

“To withhold leniency by reference to offences of which a person being sentenced has not been convicted is, in our opinion, to punish that person for those offences as surely as if additional punishment were imposed by reference to those offences.  A person who has only been convicted of an isolated offence is entitled to be punished as for an isolated offence, not on the basis that the only offence of which he or she has been convicted was not isolated but part of a pattern of conduct with which he or she has not been charged and of which he or she has not been convicted.”^[2]

15. The respondent argued that the convictions were relevant to the consideration of the penalty in respect of the matters which did fall to be punished. It was submitted that such consideration would justify punishing at a higher level for those offences. He sought to distinguish R v D on the basis that in that case and in the cases cited, there were no convictions for the conduct being considered.  Also in respect of the quoted passage above, he argued that it has no application not only because of the fact that there are convictions here but also because the point of the statement is simply to show that there is no logical distinction between the two aspects of punishment. 

16. Resort to s 11(1) of the Criminal Code does not appear to have been a common event.  So far as my research goes, its purpose and application does not appear to have been the subject of authoritative judicial discussion. It is probably correct to say that in most, if not all, cases where its application is considered before the accused person is called upon to plead, the charge would be withdrawn.  Consequently the prospect of this issue arising in the future is not high.

17. Turning then to the question of how the fact of these convictions is to be regarded in the sentencing process it is necessary to consider firstly the legislation which guides the sentencing process. By virtue of s 9 of the Penalties and Sentences Act 1992, a sentencing court is obliged to take account of a diverse range of matters relevant to the offender.  See s 9(2).   For an offender committing an offence of a sexual nature committed in relation to a child, the list of relevant considerations is extended.  See s 9(6).  Included in this subsection is a reference to certain specific features as follows:

(d)  the need to protect other children from the risk of the offender reoffending;

(f)  the prospect of rehabilitation of the offender;

(g)  the offender’s antecedents age and character.

18. The fact of the convictions makes unnecessary any consideration of the sentencing principles identified in R v De Simoni^[3] and Kingswell v R^[4] concerning the use to be made of circumstances of aggravation which were not included in the charged offence.  Nor is it necessary to refer to the principles in R v D applicable to the use that a sentencing judge could make of allegations, and even evidence, of uncharged acts.  The fact of the convictions admits the conduct and, prima facie, the sentencing judge is compelled by legislation to have regard to that conduct.

19. The process by which a sentencing court is expected to apply its consideration of an offender’s “antecedents, age and character” is explained in the High Court decision of Weininger v The Queen.^[5]  From the reasons of the majority (Gleeson CJ, McHugh, Gummow and Hayne JJ) at paras [22] - [23] the following passage appears:

“In addition to the points just made about what is known to the sentencing judge, there is another important feature of fact finding in sentencing which must be recognised. Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along a line between two extremes. That is inevitably so. The matters that must be taken into account in sentencing an offender include many matters of and concerning human behaviour. It is, therefore, to invite error to present every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple.

Further, a sentencing hearing is not an inquisition into all that may bear upon the circumstances of the offence or matters personal to the offender. Some matters may be fixed by the plea or verdict of guilty although, even there, there may be ambiguities (as for example, in some homicide cases where a verdict of manslaughter is returned). Many of the matters relevant to fixing a sentence are matters which either the prosecution or the offender will draw to the attention of the sentencing judge. Some matters will remain unknown to the sentencing judge. The question then becomes, what use is the sentencing judge to make of what is known, and of the matters urged by the parties? This is not just a series of choices for the judge between alternatives. Not only may some things be unknown, some will concern matters in which a range of answers may be open.”

20. The effect of the convictions in this case is to have on the public record the admitted unlawful past conduct on the part of the applicant for which he cannot now be punished. There is no question therefore of having to resolve disputed or inconsistent allegations of fact about this aspect of the applicant’s character and there is no question about the level of satisfaction necessary before the court can have regard to that past conduct.

21. The use to which such information can be put was referred to in the majority decision in Weininger in the following terms (at para [32]):

“. . . A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration.”

22. Callinan J in Weininger, in agreeing with the majority that the appeal should be dismissed, said (at para [117]):

“. . . But properly understood her Honour’s remarks have these components.  First, she accepted that his presence before the court as a person without prior convictions required recognition, a recognition which her remarks showed she gave it.  Secondly, the appellant’s repeated, knowledgeable and detailed remarks about earlier participation in the importation of cocaine, on any view, provided strong evidence of at least a disposition to commit and recommit such a crime if he had the opportunity to do so. The sentencing judge's treatment of the appellant therefore required that the same degree of leniency as might be bestowed upon a first offender of good character (which included of course his disposition) could not be bestowed upon this appellant.”

23. It follows that in assessing the character and antecedents of the applicant, this court is bound to have regard to his undisputed conduct as reflected by his plea of guilty in respect of allegations leading to his various convictions. The fact that a heavier penalty may follow as a consequence of that consideration is not to punish the applicant for these acts but it simply pays proper regard to the applicant’s character.

24. In this sense there is no contravention of the prohibition imposed by s 11 of the Criminal Code.  The court should therefore approach the question of the appropriate sentence for the offences referred to in para [11] hereof on that basis. 

25. In sentencing for these offences the learned sentencing judge has found that “the offences were calculated and reflect predatory behaviour on [the applicant’s] part”.^[6]  Regard must be had to the three (essentially contemporaneous) offences which were dealt with by his Honour Judge O'Brien and for which two years imprisonment were imposed.  Mill v The Queen.^[7]  In sentencing the applicant for these offences his Honour said:

“The offences were committed, as I have observed against boys in their formative years, their early teenage years or their mid-teenage years.  Their families were friendly with you and in that sense your contact represents a betrayal of that trust that goes with such a friendship.”^[8]

26. The circumstances of the offence of attempted sodomy on complainant B were that the complainant then aged 15-16 years was in the bedroom at the house of a friend of the applicant. The applicant commenced to perform oral sex on him. The applicant’s friend then came into the room and commenced to have anal sex with the applicant. The applicant commenced to slide on top of the complainant and attempted to have anal intercourse with him but the complainant repelled that attempt. The maximum penalty for this offence is seven years imprisonment.

27. When the offence was committed against P he was only 12 years old. The offending conduct consisted of grabbing the complainant’s penis and attempting to masturbate him. The complainant thereafter had problems with schooling and became wary of older men.

28. The two offences of indecent treatment against the complainant O occurred when he was under 12 years of age. The offence carried the maximum penalty of 14 years imprisonment. In fact O was under seven years of age at the time of the first offence against him and under 11 at the time of the second offence. The applicant was a friend of O's father and was invited to go on camping trips with the family. Whilst the complainant was asleep under a tarpaulin on one such trip, the applicant fondled his penis, an act which went on for approximately 15 minutes. The second incident occurred when the applicant was baby-sitting the complainant. The complainant was lying naked face down on his bed when the applicant, also naked, rubbed his penis on the complainant’s bottom. This complainant suffered significant emotional problems consequent upon these incidents which had an impact extending to the family unit.

29. The seven offences (including those dealt with by Judge O'Brien) involved a total of five complainants. In that context counsel for the applicant contends that six years imprisonment is excessive. He invited a comparison of the sentence with the penalty imposed in R v McArdle,^[9] a priest, who pleaded guilty to 62 counts of indecent dealings of young boys over a 22 year period and who was sentenced to six years imprisonment with eligibility for post-prison community based release after two years.  

30. We were referred also to R v Benetto^[10] where an eight year term of imprisonment was replaced by one of six years for a 59 year old accused who pleaded guilty to 58 counts of indecent dealing and related offences against six children.  Also relied upon was R v Lynas^[11] which involved a plea of guilty by a 58 year old man to 27 offences against four boys. 

31. The reduction in the number of offences and the number of complainants, necessarily results in a need to reconsider the penalty. Having regard to the comparable sentences there must be some adjustment in penalty. The applicant’s conduct with respect to the offence of attempted sodomy and the indecent treatment of the complainant who was under the age 12 years does call for a significant term of imprisonment.

32. The appropriate adjustment it seems to me is to impose a term of four years imprisonment in respect of each of those three offences and a term of two years imprisonment in respect of the offence against complainant P. Each term of imprisonment should be served concurrently with the term of imprisonment imposed on 13 October 2003. I would not interfere with the order requiring the applicant to report his current name and address upon his release from prison and thereafter for 15 years.

33. I would therefore grant the application for leave to appeal, allow the appeal and vary the order below by –

(a)Setting aside the sentences for the following offences-

Indictment 464/02 – counts 5 and 6

Indictment 465/02 – count 1

Indictment 466/02 – counts 1, 3, 4, 6 and 7,

and recording that in respect of each of those offences the applicant is convicted but not punished;

(b)Setting aside the sentence of four years imprisonment imposed on indictment 245/03 in respect of indecent treatment of a child under 16 years, and ordering instead a sentence of two years imprisonment;

(c)Deleting the provision that the remaining sentences be served cumulatively upon the terms of imprisonment imposed on 13 October 2003.