GAF v QPS[2008] QCA 190

SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  I have had the advantage of reading the reasons for judgment of Lyons J.  I agree with the order proposed by Lyons J for the reasons given by her Honour.

[2]  FRASER JA:  I agree with the reasons of Lyons J and the order proposed by her Honour.

[3]  LYONS J:  On 1 August 2007 the applicant pleaded guilty in the Townsville Magistrates Court to a charge that on 14 December 2006 he unlawfully and indecently dealt with a child under the age of 16 years.  The complainant was his 14-year-old niece who had been residing with him and his family in Townsville for the majority of the 2006 school year as she came from Bamaga.  The applicant is an uncle of the complainant child by virtue of marriage and she is therefore not a lineal descendant, which would have been a circumstance of aggravation.

[4] The Magistrates Court had the power to deal with the matter summarily, pursuant to s 552B(1)(h) of the Criminal Code 1899 (Qld), as it was “…an offence of a sexual nature without a circumstance of aggravation where the complainant was 14 years of age or over at the time of the alleged offence and the defendant has pleaded guilty.”  Whilst the offence carried a maximum penalty of 14 years imprisonment, if the matter was dealt with summarily the maximum penalty that the learned Magistrate could impose, pursuant to s 552H(1)(a), was three years imprisonment.  However, pursuant to s 552D(1), the Magistrate could abstain from dealing with the matter if he was satisfied that because of the nature and seriousness of the offence, he could not adequately punish the applicant by way of a summary conviction.

[5] All of the requirements of s 552B(1)(h) were satisfied and the learned Magistrate imposed a sentence of 15 months imprisonment suspended after four months with an operational period of three years.  The applicant unsuccessfully appealed the severity of that sentence to the District Court in Townsville.  The applicant now seeks leave to appeal pursuant to s 118(3) of the District Court Act 1967.  The applicant did not file an outline of submissions or appear at the hearing of the application, however, given the issues raised on the Notice of Appeal, it was considered that the application should be dealt with on the merits despite the applicant’s non-appearance.  The court has therefore considered the grounds outlined in the Notice of Appeal and the submissions which were advanced in the District Court. 

The circumstances of the offence

[6] The circumstances of the offence as outlined before the learned Magistrate were as follows:[1]

• On 5 January 2007 the complainant attended at the Bamaga Police Station and stated that she had been attending school in Townsville and had been residing with the applicant, and that the date the offences occurred was a school day.  The complainant stated that while she was at school she received an urgent message to contact the applicant and she did so.  He told her to meet him at the back of the school so that he could take her shopping, as it was the last day of school.  The complainant agreed and went to meet the applicant. 
• They then went to the nearby shopping centre, where the applicant purchased a number of items for the complainant, which included a dress.  They then went to Hungry Jacks and purchased lunch, and the applicant then took the child back to a motel in the town.  At the motel the applicant and the complainant sat in the room watching television, talking and eating lunch.  The complainant said she was lying on the bed watching television when the applicant began to rub her legs using Nivea cream which had been obtained from his vehicle.  She was wearing her school uniform which consisted of a blue shirt and black shorts.  The complainant stated that the applicant had rubbed her legs up to the bottom of her shorts and had then placed his hand under her shorts and had continued to rub her upper legs. 
• The complainant stated that the applicant had then asked her, “…have you ever been growled out” to which she replied that she did not know what that meant.  The applicant then said, “…[h]ave you ever been licked out?”  At this time the complainant got up off the bed and went to sit on a bench located at the opposite side of the room.  The complainant stated that the applicant had then repeatedly asked her if he could lick her out and told her that – if she had a shower he would then give her a full body massage. 
• The complainant stated that at this time she became scared and sent a text message to her cousin to tell her what was happening.  She stated that her cousin had then called her mobile but she was too scared to talk.  However, following the call the complainant asked the applicant to take her to the shopping centre.  The complainant stated that the applicant initially refused to do so, but after a short period he complied with her request. 

[7] On 6 January 2007 police executed a search warrant at the applicant’s address and he agreed to accompany them to the police station, where he took part in a formal record of interview.  He made admissions to removing the complainant from school, taking her shopping, and buying her presents and then taking her to the motel room where, he says, they watched television, talked and he gave the complainant a massage to her feet and lower leg area only.  He made no further admissions.

The applicant’s background

[8] The applicant was 35 years of age at the time of sentencing.  He was born overseas and had travelled to Australia as a young boy.  He had no criminal history and had a very good work history.  He had been gainfully employed for a long period, mainly in labouring positions.  He had been married for 14 years and had four children of his own, aged 14, 13, 10, and eight.  He and his wife were also caring for a five-year-old boy, who is related to his wife, because the mother of the child was unable to look after or care for that child properly. 

[9] The applicant had admitted the allegations to his wife and was embarrassed and remorseful.  In the course of a pretext telephone conversation he had also admitted to the child’s mother what he had done and he apologised to her for his actions.  He separated from his wife because of what occurred but they had subsequently reconciled.  He also had a significant mortgage.

The sentencing submissions before the learned Magistrate

[10]  The submission of the prosecutor was: [2]

“…a period of imprisonment somewhat suspended is within range.  Had a short time to look at some of the cases and this matter falls at the lower end – the lower end of the range in terms of the sentencing principles that I could find through my research…This matter – this had no touching of the genital area but I will just submit that a term of imprisonment is within range…”

[11]  Defence counsel, whilst conceding that a period of imprisonment was within range, submitted that because of all of the mitigating factors, a wholly suspended sentence should be imposed.  Reference was made during the sentencing process to R v Quick; ex parte A-G (Qld)[3]  In Quick Chesterman J referred to R v Pham[4] where this Court pointed out that: [5]

“…offenders are often mature citizens who have otherwise led blameless lives whose disgraceful conduct is inexplicable.  However, this Court has clearly indicated that, other than in exceptional circumstances, those who indecently assault or otherwise deal with children should be sent to jail.”

[12]  In submitting that a wholly suspended sentence should be imposed, defence counsel relied in particular on the applicant’s early plea of guilty, his remorse, his family responsibilities, and particularly, the fact that his large family relied on him for financial support.  An amount of $2,150 was due each month on the mortgage, as well as other debts of $58,000 which also needed to be paid off.  Counsel also relied on the fact that the motel had not been pre-booked and that once the complainant had indicated she wanted to leave the applicant had not obstructed her in leaving and had taken her back to the shopping centre.  Counsel also pointed out that there was no touching of the genital area and it was the skin under the complainant’s shorts that had been touched.  There was also the comment about oral sex.  Counsel submitted that even though the offence was serious, it was in fact at the lower end of offending given it involved touching of the legs and no other areas had been touched.

[13]  In coming to an appropriate sentence, the learned Magistrate indicated that he had taken into account the principles of the Penalties and Sentences Act 1992 (Qld), as well as the mitigating factors including the early plea and the applicant’s remorse.  He also acknowledged the applicant’s co-operation and the fact that the complainant had been spared the ordeal of a trial.  The Magistrate acknowledged the significant impact the imprisonment would have on the applicant’s family and the fact that he had no previous criminal history. 

[14]  Ultimately, however, the learned Magistrate indicated that the offence was serious and that whilst there had been no victim impact statement, from an objective point of view, the applicant’s behaviour must have had a detrimental effect on the complainant and there must have been significant psychological and behavioural impacts on the complainant.  He also indicated that there had been a breach of trust and that the offence was for the applicant’s own personal gratification.  Whilst the Magistrate acknowledged that the motel had not been pre-booked, he was concerned that the complainant had been taken to a motel.  The learned Magistrate stated that the prevalence of the offence does “…call for a deterrent effect or a deterrent penalty to be imposed in these sorts of matters.”  The Magistrate indicated that “…imprisonment is the only appropriate penalty in the circumstances.”  Finally, the learned Magistrate stated that defence counsel:[6]

“...has accepted and I think he is correct in assessing the range of penalty, in relation to this offence, would be between 12 months and 18 months.  So to that extent you are convicted – that conviction is recorded and you are sentenced to 15 months’ imprisonment.

With respect to the submission in relation to suspended sentence it is clear from the decisions of the Court of Appeal that a term of imprisonment must be imposed, and there is nothing in the submissions made to me today that would put your offending into that class that could be described as exceptional, and a term of imprisonment some term of imprisonment must be served…

So pursuant to section 144, in the circumstances, as I feel it to be appropriate, I order that this period of 15 months imprisonment be suspended after you have served four months for an operational period of  three years…”

The appeal to the District Court

[15]  The sentence was appealed on the ground that it was manifestly excessive.  The primary ground of appeal was summarised by the learned District Court Judge hearing the appeal as follows:[7]

“The primary submission on behalf of the Appellant relates to the fact that upon a scrutiny of the transcript and the decision the learned Magistrate appears not to have taken into account that the authority to which he was referred were appeals which had emanated from the District Court where a 14 year term of imprisonment for the offending had application.  In the Magistrates Court the maximum penalty is of three years. 

On that basis Mr Collins who appears for the appellant submits that if there was to be a prison term it should be no longer than six months and it should be fully suspended.  Alternately he submits that the appropriate penalty is a fine.”

[16]  In the District Court the applicant submitted that a head sentence of 15 months was approximately 40 per cent of the maximum penalty available to the learned Magistrate.  Furthermore, in determining the penalty, the learned Magistrate had relied on principles expressed by the Court of Appeal in Quick and that the Magistrate did not recognise the disparity between the maximum penalty available to him and that available upon indictment.  In particular, the submission on behalf of the applicant referred to the fact that the decision in Quick recognises the principle in Pham that other than in exceptional circumstances those who indecently assault children should be sent to jail but submitted that:[8]

“That principle does not of itself recognise the situation in the present case that the maximum penalty available to the learned primary magistrate is considerably less than that available to a District Court Judge.  In R v G ;Ex Parte Attorney General (Qld) [1999] QCA 477 the Court commented that ‘An increase in the maximum penalty considered by the judge will ordinarily lead to an increase in the appropriate sentence’. 

In the present case the maximum penalty available was less therefore it follows as a matter of logic that the Learned Primary Magistrate should have imposed a penalty which reflected that fact.”

[17]  In dismissing the appeal, the learned District Court Judge first stated that there were many features which made the offending serious and after analysing the further authorities of R v GZ[9] and R v G; ex parte A-G (Qld)[10] stated:[11]

“…I am not persuaded that Counsel who appeared for the Appellant on the sentence in conceding that a period of imprisonment was within range going on to submit that it should be fully suspended was in any way making an inappropriate concession before the learned Magistrate.”

[18]  The learned District Court Judge then turned to the argument which had been advanced, that because the maximum penalty which could be imposed by the learned Magistrate was three years this affected the ability to rely on the authorities which were appeals from the District Court.  The learned Judge specifically rejected this submission in emphatic terms:[12]

“I reject the notion that penalties ought by mathematical process be reduced as a fraction by a Magistrate first ascertaining what might be the penalty in the District Court.

It seems to me the primary consideration for a Magistrate is whether the matter might adequately be dealt with on the basis the maximum penalty was three years.  In this case there is no doubt the Magistrate should have been comfortable in continuing to hear the matter.  The sentence imposed was well within the limits.

I accept that any sentencing Court should have regard to the maximum penalties.

There is nothing to indicate that the learned Magistrate did anything other than apply a penalty which was perceived to be in line with what may have applied in the District Court.”

[19]  Whilst his Honour conceded that the head sentence, the actual sentence, and the period of suspension each might be considered to be at the “upper end” of what could be considered to be an appropriate penalty in the Magistrates Court, he was not persuaded that the sentence imposed went beyond the “acceptable scope”.[13]

The application

[20]  The grounds set out in the Notice of Application for Leave to Appeal pursuant to s 118(3) are that the sentence is manifestly excessive in the circumstances and that the Court should grant leave for this further appeal because the judgment of the learned District Court Judge involved an error of law.

[21]  Based on the submissions relied on in the District Court, the error of law contended for would appear to be the rejection by the learned Judge that the learned Magistrate erred in not reducing the sentence to reflect the fact that the maximum penalty he could impose was only three years.

[22]  I do not consider there has been any error by the learned Judge in dismissing the appeal.  I consider the Judge was correct to reject the submission that the penalty to be imposed by the learned Magistrate should be somehow reduced fractionally by some mathematical calculation because the maximum penalty has been reduced.  Section 552H of the Code does not reduce the maximum penalty for the actual offence.  The purpose of the section is to limit the penalty that a Magistrate can impose for that offence.  Pursuant to s 552D of the Code, the jurisdiction to proceed under s 552B is limited and:

“A Magistrates Court must abstain from dealing summarily with a charge under section 552B if satisfied, at any stage, and after hearing any submissions by the prosecution and defence, that because of the nature or seriousness of the offence or any other relevant consideration the defendant, if convicted, may not be adequately punished on summary conviction.” 

[23]  Accordingly, the overarching requirement is that the Magistrate cannot proceed under the section if the nature and circumstances of the offence are such that a summary conviction with a penalty of three years imprisonment or less is inadequate.

[24]  I agree with the respondent’s submission in the District Court Appeal that:[14]

“Section 552H should be interpreted in conjunction with the rest of Chapter 58A, which provides the legislative scheme for magistrates to deal with indictable offences summarily.  The respondent submits that Chapter 58A is not about changing maximum penalties for offences, but rather deals with procedural matters such as in what circumstances indictable offences may be dealt with summarily and also limits the penalties Magistrates can impose for indictable matters.”

[25]  Accordingly, s 552F requires the Magistrate to consider what the appropriate range is for a particular offence and this necessarily involves a consideration of comparable decisions for that type of offending irrespective of whether it was dealt with in the Magistrates Court or in the District Court.  In considering the relevant authorities, the Magistrate has to be satisfied that the appropriate penalty is imprisonment for three years or less.  If the Magistrate considers that the appropriate penalty is imprisonment of more than three years, then the matter proceeds by way of a committal proceeding and is to be dealt with by the District Court. 

[26]  The applicant essentially submits, however, that once the Magistrate has made the determination of the appropriate sentence, he then discounts it down because the maximum penalty he can impose is one of three years.  Such an approach is clearly erroneous and was rightly rejected by the learned Judge. 

[27]  Furthermore, it cannot be argued that the sentence imposed by the learned Magistrate was manifestly excessive.  I consider that the learned Judge was correct in his view that whilst the head sentence and the actual sentence were at the high end, they were still within the acceptable range.  The respondent, in its submissions, has identified one minor error made by the learned Magistrate and states that the Magistrate referred to s 9(2)(a) and (b) of the Penalties and Sentences Act 1992 (Qld) whereas s 9(5) specifically provides that:

“…the principles mentioned in (2)(a) [which relate to imprisonment only being imposed as a last resort and that a sentence which allows the offender to stay in the community is preferable] do not apply to the sentencing of an offender for any offence of a sexual nature committed in relation to a child under 16 years.” 

[28]  Such an error was not only minor but actually worked in the applicant’s favour and accordingly could not be the basis of a complaint by the applicant.

[29]  The application for leave to appeal should therefore be refused.