R v Murray[2006] QCA 516

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:  The applicant pleaded guilty in the District Court at Townsville to four counts on one indictment charging him with indecent dealing with children under 12 in his care between 1 May 2004 and 30 November 2004.  He also pleaded guilty to one count on another indictment charging him with indecent treatment of a child with a circumstance of aggravation that she was under 12 between 28 July and 1 August 2005.  The judge sentenced him on each count to three years imprisonment.  The judge stated that he took 309 days of pre-sentence custody into account in setting the parole eligibility date at 19 May 2007 after the applicant would have served 18 months.  The applicant contends the sentence was manifestly excessive and failed to correctly take into account the applicant's extensive pre-sentence custody.

The applicant was in his mid to late thirties at the time of the offences.  He had committed some minor previous street offences but these were irrelevant so for comparable purposes he had no prior convictions.

The complainants in the four count indictment were friends of the applicant's daughter.  They were staying at his home for a sleepover with his daughter.  K was 10 years old.  He touched her breast on the skin under her shirt and momentarily touched her vagina on the outside of her clothes before she pushed him away (count 1).  He took her hand and guided it towards his penis, but she pulled away (count 2).  He touched R, K's eight year old sister, on the vagina.  It is unclear whether this was underneath or on top of her clothing (count 3).  He had a bath with M, aged seven, while they were both naked.  He rubbed her stomach (count 4).  It was unclear whether these counts all occurred during the same sleepover or during different sleepovers.

He was interviewed by police in respect of these complaints on 10 December 2004 but denied any wrongdoing.  He was charged and released on bail.

In late July or early August 2005 he was staying with friends.  S, an 11 year old girl, visited the house.  He touched her on the vagina inside her clothing for about two seconds when they were watching TV.  This constituted the offence in the single count indictment.

The Crown Prosecutor submitted at sentence that, because of the young age of the complainants, the breach of trust and the breach of bail in committing a similar offence on the separate indictment, a head sentence of two and a half years' imprisonment to reflect all the offending was the appropriate penalty, perhaps with a parole eligibility date earlier than the halfway point.

Defence counsel at sentence set out details of the applicant's difficult upbringing.  He was functionally illiterate and had not been in employment.  He was a disability pensioner.  He had two children aged 11 and 8.  He had severe alcohol and drug problems and was at the time of sentence on medication for depression.

During the sentencing submissions the primary judge raised with counsel whether, in the light of recent changes to the Penalties and Sentences Act 1992 (Qld), the pre-sentence custody served by the applicant should be taken into account in fixing a parole eligibility date and the head sentence.  Unfortunately, his Honour was not given particularly useful assistance on this point and it seems that his Honour did err in the method in which he dealt with the period of pre-sentence custody.

Defence counsel urged the judge to suspend the sentence after about one third of the head sentence.  Defence counsel emphasised that the applicant was not persistent, did not use force, there was no penetration and he had already spent 10 months in pre-sentence custody.

In sentencing the applicant the judge noted his concern about the applicant's reoffending on bail and the serious aspects of the offending, including the breach of trust and that there were four victims.  His Honour also noted the plea of guilty, which he considered indicated remorse and cooperation with the administration of justice.  He observed that there was no evidence of any lasting detrimental impact on the young victims.  The sentence he would impose on each offence would reflect the totality of the seriousness of the applicant's conduct.  His Honour noted:

"I record that I have taken pre-sentence custody into account in fixing the parole eligibility date that I'm going to mention in a moment.  So because I have taken it into account in fixing the parole eligibility date you are not entitled to double credit for it."

In the end his Honour sentenced the applicant to three years' imprisonment on each offence and recommended parole eligibility on 19 May 2007, eight months from the sentencing date, reflecting the 10 months of pre-sentence custody.  His Honour did not make any declaration under the Act in respect of the pre-sentence custody.

The applicant contends that, although the head sentence was within the appropriate range of two to three years' imprisonment, the judge should have declared the pre-sentence custody as time served under the sentence.  Otherwise, it is possible the applicant could be required to serve the full three years' imprisonment imposed on 19 September 2006 as well as the 10 months already served in pre-sentence custody. The applicant urges this Court to now resentence him, making that declaration and imposing a less onerous penalty.  The respondent rightly concedes that the judge erred in not declaring the pre-sentence custody as time served under the sentence.  The respondent also concedes that the head sentence was high, although submits it was within range.

The question for this Court is whether, in the light of the error made by the primary judge, the sentencing discretion should now be exercised differently.

The maximum penalty for each of the offences was 20 years' imprisonment.  Whilst the physical nature of the offending was certainly at the lower end of potential seriousness, there were some serious aspects to the offending.  There were four complainants; some were only seven or eight years old.  It is especially concerning that the applicant reoffended whilst on bail.  Although he had significant personal difficulties he was a mature man.

In my view, a head sentence of two and a half years' imprisonment to reflect the full extent of the seriousness of the offending is appropriate here.  It is supported by decisions of this Court to which we have been referred: R v. Al Aiach [2006] QCA 157; CA No 93 of 2006, 12 May 2006; R v. G [1994] QCA 86; CA No 10 of 1994, 12 April 1994; R v. K [2003] QCA 521; CA No 290 of 2003, 20 November 2003; R v. Walker [1998] QCA 378; CA No 271 of 1998, 8 October 1998; and R v. C [1999] QCA 458; CA No 264 of 1999, 2 November 1999.  Those cases, of course, are not directly on point but they do suggest that a head sentence of two and a half years' imprisonment is the appropriate penalty here. 

The question then is how to best frame the sentences to be imposed for the five offences to give the applicant appropriate credit for his plea of guilty and time spent in pre-sentence custody and to ensure that he gets appropriate support, supervision and control in the community, something which is plainly not only in his but also the community's best interests.  Clearly, because of the nature of the offending, his multiple difficulties and his past reoffending, supervision and control with swift action available in the event of breach, is important.

I have already referred to the unusual features in this case.  I particularly emphasise the fact that he has spent almost 13 months in custody, about 10 months of which was pre-sentence custody; it seems he was unable to take part in the rehabilitative sexual offenders treatment program during his pre-sentence custody.  Those matters make the following orders apposite.  The application for leave to appeal should be granted, the appeal allowed and the sentences imposed at first instance set aside. 

Instead, I would impose the following penalties in respect of each count.  On the four count indictment I would sentence the applicant to two and a half years' imprisonment to be suspended after 13 months with an operational period of three years.  In respect of the one count indictment I would sentence the applicant to 12 months' imprisonment and three years' probation on the usual terms and conditions set out in the Penalties and Sentences Act.  Those orders are possible because the applicant has now effectively served the 13 month period of actual custody ordered before suspension, so that the practical effect of them is consistent with this Court's approach in R v. Hood [2005] QCA 159; CA No 38 of 2005, 13 May 2005, at [47], and with the terms of s 92 of the Act.

The applicant, through his counsel, has indicated his willingness to consent to a probation order on those conditions and including the special condition, which I would also impose, that he receive medical, psychiatric and psychological treatment including treatment for sexual abuse problems.

I would declare that the period of 307 days from 15 November 2005 until 18 September 2006 is time served under the sentence.  If there be any doubt, the sentences that I would impose, including the term of the probation, date from his original sentence.  

MR MOYNIHAN:  Thank you, your Honour.

THE PRESIDENT:  Something else?

MR MOYNIHAN:  And the - the days declared would be - I've calculated them at 386.  Well, your Honour is imposing a sentence today for the days in‑‑‑‑‑

THE PRESIDENT:  But it all makes sense‑‑‑‑‑

WILLIAMS JA:  But that's why I think it's important that we backdate it to the 19th of September.

MR MOYNIHAN:  Yes.

WILLIAMS JA:  And then the number of days is the 307.

MR MOYNIHAN:  That's right.  Well, that's the - yes.

WILLIAMS JA:  Yes.

THE PRESIDENT:  But we don't normally do that.  We normally - when you - when you're substituting it‑‑‑‑‑

WILLIAMS JA:  Yes, all right.  I agree.

HELMAN J:  I agree.

THE PRESIDENT:  The orders are as I have made.