R v GAA; ex parte Attorney-General
[2007] QCA 288
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- R v GAA; ex parte Attorney-General[2007] QCA 288
- Add to List
R v GAA; ex parte Attorney-General[2007] QCA 288
R v GAA; ex parte Attorney-General[2007] QCA 288
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | DC No 35 of 2007 |
Court of Appeal | |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | |
DELIVERED ON: | 7 September 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 August 2007 |
JUDGES: | McMurdo P, Keane JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: | 1. Appeal allowed to the limited extent of setting aside the sentence imposed on count 7 and instead order:a) That the respondent be admitted to probation for three years on the terms and conditions set out in s 93 Penalties & Sentences Act 1992 (Qld) together with a special condition that he receive medical, psychiatric and psychological counselling and treatment as directed by his probation officerb) He is to report to the probation office at Bundaberg within seven days of the delivery of these reasons for judgmentc) A conviction is recorded2.In respect of the summary offences against the Child Protection (Offender Reporting) Act 2004 (Qld) the respondent is convicted but not further punished3.The sentences imposed on 18 June 2007 are otherwise confirmed4.The non-contact order and the orders relating to the photos and the computer made on 15 June 2007 are also confirmed |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where the respondent pleaded guilty to four counts of indecent treatment of a child under 12 years and one count of possessing child exploitation material – where the respondent also committed two summary offences under the Child Protection (Offender Reporting) Act 2004 (Qld) – where the sentence was re-opened under s 188 Penalties & Sentences Act 1992 (Qld) and varied because the sentencing judge fixed a parole release date for sexual offences not permitted under s 160B Penalties & Sentences Act 1992 (Qld) – where the appellant contended that the sentence was manifestly inadequate – where there was an error of law in imposing an intensive correction order because the total period of imprisonment exceeded 12 months (s 118 Penalties & Sentences Act) – whether this Court was required to re-sentence the respondent Child Protection (Offender Reporting) Act 2004 (Qld), s 36(1)(c)(iii) Criminal Code 1899 (Qld), s 651 Penalties & Sentences Act 1992 (Qld), s 93, s 118, s 188, s 189 Everett v The Queen (1994) 181 CLR 295, considered GAS v The Queen (2004) 217 CLR 198, considered R v Murray [2006] QCA 516 ; CA No 291 of 2006, 6 December 2006, distinguished |
COUNSEL: | M R Byrne for the appellant A W Moynihan SC for the respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent |
[1] McMURDO P: The respondent pleaded guilty to four counts of indecent treatment of a child under 12 years whilst in his care (counts 1, 3, 4 and 5) and one count of possessing child exploitation material (count 7). The prosecution did not proceed on counts 2 and 6. The offences were committed during the operational period of two suspended sentences. He also committed two summary offences under the Child Protection (Offender Reporting) Act 2004 (Qld). On the indecent treatment counts the appellant was sentenced to two years imprisonment suspended after the 512 days he had already served, with an operational period of three years. On count 7 he was placed on a 12 month intensive correction order, cumulative on the terms of imprisonment for counts 1, 3, 4 and 5. The judge increased the operational period of each suspended sentence by a further 12 months. The judge stated that he took the summary offences into account but did not impose any separate punishment. Additionally, the judge made a non-contact order in respect of the child complainant for a period of two years. The appellant, the Attorney-General of Queensland, appeals against the sentence imposed contending that it is manifestly inadequate in that it fails to adequately reflect the gravity of the offences, to take sufficiently into account the aspect of general deterrence and gave too much weight to mitigating factors.
[2] The respondent was 61 and 62 at the time of the offences and 63 at sentence. His prior criminal history is concerning and relevant. In August 2003 he was convicted of 15 counts of possession of objectionable computer games and sentenced to four months imprisonment and two years probation. On 26 November 2003 he was convicted of indecent treatment of children under 16 (on 11 August 2001) and sentenced to nine months imprisonment suspended after serving three months imprisonment with an operational period of three years and a non-contact order for two years. On 22 March 2004 he was convicted of indecent treatment of children under 12 years (on unknown dates between 31 December 1998 and 1 February 1999). He was sentenced to three months imprisonment suspended after having served one month, with an operational period of three years. As noted, because the present offences occurred between 31 August 2005 and 20 January 2006, they were committed during the operational period of the two suspended sentences.
[3] The circumstances surrounding the present offences are as follows. Overseas law enforcement agencies intercepted correspondence from the respondent and passed information to Queensland Police who executed a search warrant at his home. He resided with his 18 year old daughter and, at least intermittently, with an eight year old boy, B, who was the son of a woman whom the respondent had befriended. B sometimes slept in the same bed as the respondent. Some of B's clothes were in a wardrobe in the respondent's bedroom. The respondent had unsupervised contact with B. B was interviewed by police on 10 February 2006. He told police that on one occasion when he was sleeping he woke up to find the respondent touching his penis on the outside of his clothing (count 1).
[4] Police found an image stored in the respondent's computer which depicted a naked female with what appeared to be a Mars Bar on her stomach. They also found a letter dated 10 January 2006 which referred to him having shown B images of anuses; the images upset B. The letter also referred to a conversation in which the respondent asked B whether he would prefer to lick the Mars Bar or the woman's vagina. The respondent noted that B "really doesn't know about such things and yet in other ways he is ahead of his age" (count 3).
[5] Police found on the respondent's computer a photograph of B lying on a bed with his pants pulled down and his buttocks exposed (count 4). They found another photograph showing B with his pants pulled down, his buttocks exposed, and the respondent's hand parting B's buttocks to expose his anus (count 5). These photographs were taken with the same make and model of camera found by police at the respondent's home in January 2006. These and other images found by police together constituted the offence of possessing child exploitation material (count 7). Four of the images appeared to depict an adult penis ejaculating onto the penis of a child of about eight years old. Three of the images depicted two boys of about 12 years of age performing oral sex on each other. Another image depicted a boy of about 14 years with the image of a penis digitally superimposed onto his groin. The computer also contained material concerning sexual contact with children under the title of "Boy Lover".
[6] Under the Child Protection (Offender Reporting) Act the respondent, as a Reportable Offender, was required to report any change in his employment status and any unsupervised contact that he had with children. He failed to report his unsupervised contact with B.
[7] The respondent told police that he first met B's family in about September 2005. He felt sorry for B as he did not have a father. He said he loved B. He denied that B slept in his bed and denied touching him indecently. He admitted having a sexual interest in young boys and showing B the picture of the woman with the Mars Bar because B was interested. He falsely claimed the woman was wearing a bikini.
[8] The respondent pleaded guilty on 3 May 2007 to counts 3, 4, 5 and 7. B's evidence was then pre-recorded and he was cross-examined. This resulted in the prosecution not proceeding on counts 2 and 6 and the respondent pleading guilty to count 1 and the summary offences.
[9] The sentencing judge on 15 June 2007 observed that he did not consider that it would be unjust to order that the whole of both periods of the two suspended sentences be served in full and cumulatively and that he was satisfied that a sentence of two years cumulative on all other counts should also be imposed, making a total sentence of two years and eight months imprisonment. His Honour noted that as 512 days had been served as pre-sentence custody it was appropriate to order a parole release date as at the date of sentence. In fixing this sentence the judge effectively acceded to the submissions of both counsel and wrongly assumed that the previously suspended terms of imprisonment had been subsumed in the pre-sentence custody.
[10] On 18 June 2007 the sentence was re-opened under s 188 Penalties & Sentences Act 1992 (Qld). The judge was told that the parole release date could not be ordered as at the date of sentence. Because the offences were sexual offences, s 160B Penalties & Sentences Act (which allows a court to fix a parole release date) did not apply. Furthermore, the 512 days of pre-sentence custody and the remaining period of imprisonment under the sentences previously suspended (eight months in total) had to be served from the imposition of the sentence on 15 June and was not subsumed in the pre-sentence custody. His Honour then varied the sentences imposed to those set out at the commencement of these reasons.
[11] Counsel for the appellant, Mr M R Byrne, submits that the judge was led into error by both counsel at sentence by accepting that a two year cumulative sentence was appropriate in respect of counts 1, 3, 4 and 5. He contends that the legally flawed submission of the prosecutor at sentence did not relieve the judge from the obligation to determine the proper sentence: GAS v The Queen.[1] Whilst two years imprisonment cumulative on the previously suspended periods of imprisonment was appropriate for count 7, in respect of counts 1, 3, 4 and 5 three to four years imprisonment, concurrent with count 7 but cumulative upon the previously suspended sentences, should have been imposed with no early parole eligibility date. Further, he submits that a separate order should have been made in respect of the summary offences against the Child Protection (Offender Reporting) Act which were before the Court under s 651 Criminal Code 1899 (Qld), (Court may decide summary offences if a person is charged on indictment), not s 189 Penalties & Sentences Act (Outstanding offences may be taken into account in imposing sentence), even if it was an order that the respondent be convicted and not further punished.
[12] In summary, Mr Byrne submits that the following sentence should have been imposed: for committing an offence during the operational period of the suspended sentence imposed on 26 November 2003, order that the respondent serve the whole of the suspended period of two months imprisonment; for committing an offence during the operational period of the suspended sentence imposed on 22 March 2004, order that the respondent serve the whole of the suspended period of six months imprisonment cumulative on the two month sentence; on each of counts 1, 3, 4 and 5, imprisonment for between three and four years, concurrent with each other but cumulative on the sentences ordered to be served in respect of the breaches of the suspended sentences; on count 7, two years concurrent imprisonment; and for the summary offences, convicted but not further punished. There should be a declaration that the 512 days spent in pre-sentence custody is time already served under the sentences imposed. This would be an effective sentence of between three years and eight months and four years and eight months imprisonment with 512 days declared to have already been served. There should be no recommendation for early parole eligibility.
[13] If that submission is not accepted, Mr Byrne alternatively contends that greater supervision of the respondent is desirable and could best be effected by a three year probation order with a special condition that the respondent submit to medical, psychiatric or psychological testing and treatment: cf R v Murray.[2]
[14] Whilst denying that the effective sentence imposed was inadequate in all the circumstances, the respondent's counsel, Mr Moynihan SC, concedes that there has been an error of law in the sentence imposed: the intensive correction order on count 7 is unlawful because the respondent's total period of imprisonment to which he was sentenced exceeds 12 months: see s 118 Penalties & Sentences Act. Mr Byrne agrees that this error requires the Court to allow the appeal and to re-sentence the respondent.
[15] To effectively do so, it is appropriate that we now receive evidence of the respondent's progress since his sentence and release into the community about two and a half months ago. Both Mr Byrne and Mr Moynihan inform us that he has been performing his intensive correction order entirely satisfactorily during that period and is obtaining treatment for his paedophilia.
[16] Mr Moynihan contends that this Court should take the approach of the primary judge on 18 June and conclude that it would be unjust to activate the suspended terms of imprisonment because that would have the effect of requiring those terms to be served cumulatively on the declared 512 days of pre-sentence custody. Instead, the operational period for each suspended sentence should be extended for one year. Because of the 17 months of pre-sentence custody, a concurrent sentence on each of counts 1, 3, 4 and 5 of two years imprisonment suspended after 512 days with an operational period of three years (the sentence imposed by the primary judge) was appropriate. On count 7, a 15 month probation order should be imposed.
[17] None of the cases to which we have been referred as potentially comparable are of any real assistance in determining the appropriate sentence in the most unusual factual and legal web that exists in the present case. The circumstances of the counts of indecent treatment with circumstances of aggravation (counts 1, 3, 4 and 5), though serious breaches of trust, are towards the lower end of the scale of seriousness of such offences which come before this Court. They are punishable by a maximum penalty of 20 years imprisonment. The exacerbating features of the offending are that the respondent had like prior convictions, the offences occurred in the operational period of two suspended sentences for other sexually oriented offending against children and he had also committed summary offences by breaching his obligations under the Child Protection (Offender Reporting) Act aimed at removing the opportunity for him to re-offend. He had spent at the time of his original sentence 512 days in pre-sentence custody, a very substantial period of incarceration, and one considered by the primary judge to be sufficient in the light of his entire criminality. His Honour was encouraged to reach this conclusion by the prosecutor who actively submitted that a sentence of two years imprisonment was appropriate on all counts and that the period of 512 days already served by the respondent was "very close" to an appropriate period of actual custody to reflect the respondent's overall criminality. The attitude of the prosecutor at sentence makes questionable Mr Byrne's present contention for an effective sentence of three to four years imprisonment without any early suspension, especially as the respondent has been released into the community without demur from the prosecutor at sentence and his rehabilitation over the past two and a half months appears to be progressing well: see Everett v The Queen.[3]
[18] Mr Byrne's contention for a head sentence of three to four years imprisonment on counts 1, 3, 4 and 5 (at least with a suspension after about one-third to reflect the guilty pleas) would have great merit but for three matters: first, the 17 months of pre-sentence custody; second, the attitude of the prosecutor at sentence; and third, the fact that the respondent has now been released into the community and is successfully undertaking his rehabilitation. The lengthy pre-sentence custody means that the effective sentence imposed of two years imprisonment suspended in effect forthwith equated to a sentence of three years and five months imprisonment suspended after 17 months. Such a sentence was very close to the range now contended as appropriate by Mr Byrne. In re-sentencing, because of the three factors set out above, I would take the same approach as the primary judge to counts 1, 3, 4 and 5. The respondent's concerning recidivism suggests that that most appropriate sentence on count 7 is, as Mr Byrne submits, one which provides for the maximum period of supervision in the community with strict conditions as to treatment for paedophilia. Mr Moynihan has indicated the respondent's willingness to consent to three years probation. On count 7 I would order that he be placed on three years probation with a special condition that he receive medical, psychiatric and psychological counselling and treatment as directed by his probation officer. That sentence on count 7 is only appropriate because of the lengthy period of pre-sentence custody, a factor which also persuades me, as it did the primary judge, that it would be unjust to order the respondent to serve the whole of the suspended periods of imprisonment imposed on 26 November 2003 and 22 March 2004 and that, instead, the operational period in respect of each of those suspended sentences should be extended for a further year from 15 June 2007. In respect of the summary offences against the Child Protection (Offender Reporting) Act I would convict the respondent but not further punish him. I note that that Act makes the respondent a "reportable offender" who, throughout his life, must report his personal details to the Police Commissioner each year as well as any changes to his address, place of work, description of motor vehicle and any occurrences of unsupervised contact with a child within 14 days of the event occurring: see s 36(1)(c)(iii) Child Protection (Offender Reporting) Act.
ORDERS: