SUPREME COURT OF QUEENSLAND

THE CHIEF JUSTICE:  I will ask Justice Keane to deliver the first judgment.

KEANE JA:  On 31 August 2007 the applicant pleaded guilty to a number of offences, the most serious of which was maintaining a sexual relationship with a child under 16 years of age.  He also pleaded guilty to six counts of unlawful use of a motor vehicle, five counts of stealing and three counts of arson.  He also pleaded guilty to one count of receiving stolen property, two counts of dangerous operation of a motor vehicle and one count of burglary and stealing.

On 27 September 2007 he pleaded guilty to a further 23 summary offences transferred to the Court pursuant to section 651 of the Criminal Code Act 1899 (Qld).

On 2 October 2007 the applicant was sentenced to six years' imprisonment for the offence of maintaining and 18 months' imprisonment for the stealing, arson and other indictable offences.  He was also sentenced to lesser terms for the various summary offences.

The 18 month terms were to be served concurrently with each other but cumulatively upon the six year sentence.  A period of presentence custody of 801 days was declared to be time already served and a parole eligibility date was set at 2 January 2008.  That date, has of course, already passed, but the effect of the sentence is that the applicant is now eligible for consideration for parole by the authorities.

The applicant sought leave to appeal on the stated ground that the sentences imposed were manifestly excessive.  On the hearing of the appeal the applicant contended that a total sentence of six years' imprisonment should have been imposed.  As will become apparent, these contentions are difficult to sustain.

As to the circumstances of the offences, it is not argued on the applicant's behalf that the sentence of six years imposed on the applicant on the count of maintaining was excessive.  Accordingly, it is not necessary to descend to the detail of the circumstances of that offending.  It is sufficient to say that over a period of between 1 October 2003 and 23 July 2005 the applicant, who was then aged between 18 and 19 years, had regular sexual contact, including full sexual intercourse, with his half sister who was then aged between 13 and 15 years.  I should say that the applicant suffered from hepatitis C.  By that time the applicant and the complainant were living with their mother and her other children.  The mother had taken the applicant into her home after what was, for the applicant, virtually a life-long period of estrangement during which he lived with his father and older half brothers.

In July 2005, after the applicant had been remanded in custody for other offences, the mother became aware of the nature of the relationship between the applicant and the complainant from correspondence passing between them.  It is apparent from that correspondence that the complainant believed that she was “in love” with the applicant.

It is also not argued on the applicant's behalf that the sentences of 18 months for the property offences were excessive.  It is, therefore, a sufficient summary of the circumstances of those offences to say that in a period of two and a half months from May to July 2005 the applicant took six motor vehicles from hospital and shopping centre car parks.  He attempted a similar offence on one further occasion.  He destroyed three of these vehicles by setting fire to them.  On four occasions he stole petrol by filling up the car he was driving and then driving off without paying for the petrol.  On one occasion he entered a dwelling and stole a television, a DVD player, a digital camera, a quantity of jewellery and a quantity of alcohol.  The total financial loss inflicted on the victims of these offences was $28,034.29.  The applicant, on two occasions, was involved in high speed police pursuits which, on one occasion, ended when the applicant lost control of his motor vehicle.

It is not contended by the applicant that the circumstances of his offences were not such as to warrant the imposition of sentences to be served cumulatively upon the sentence for the maintaining offence.

As I have said the applicant also committed a number of summary offences but it is not necessary to refer to the circumstances of these offences as they have no substantial bearing on the issues agitated on the application for leave to appeal.

As to the applicant's circumstances, he was 22 years old when he was sentenced.  The applicant suffered an unhappy upbringing with his father and two older half brothers.  At the time he committed the property offences he was addicted to amphetamines.  The opinion of a psychologist is that he needs treatment for his poly-substance dependency and would most likely benefit from completing a version of the sex offender treatment program.  The applicant has been in custody since July 2005, during which time he has completed some employment-related courses which indicate some prospect for his rehabilitation.

The learned sentencing Judge regarded the applicant's sexual offence as opportunistic rather than the manifestation of a malign proclivity.  His Honour also took the applicant's upbringing into account as well as his attempts at rehabilitating himself.  For these matters and his pleas of guilty the learned sentencing Judge gave the applicant the substantial benefit of an early recommendation for consideration for parole.  In this regard, the effect of his Honour's order was that the applicant would be eligible for consideration for parole after serving only a third rather than a half of his total sentence.  It is quite clear, however, from his Honour's sentencing remarks, that his Honour's approach was not dependent upon the actual success or indeed even the actual consideration as at 2 January 2008 of his application for parole.

The applicant's first argument on his application for leave to appeal is that, because he has been unable to apply for parole pending the hearing of his application by virtue of section 180(2) of the Corrective Services Act 2006 (Qld) the parole eligibility date has passed.  In consequence, so it is said, the benefit to be accorded to him in recognition of his pleas of guilty and other circumstances in mitigation has been rendered nugatory.  This submission does not demonstrate error on the part of the presiding Judge.  The applicant remains eligible for parole unlike R v Ronkovich [2007] QCA 193, this is not a case where the learned sentencing Judge proceeded on an erroneous appreciation of the offender's eligibility for parole.

The effect of the sentences imposed by the learned sentencing Judge was to afford the applicant the opportunity for supervised release at the earliest date reasonably commensurate with the need to ensure that the applicant secures the minimum level of supervision and support which might help the applicant, who is clearly a very disturbed young man, to succeed in rehabilitating himself from the consequences of a most unfortunate childhood and adolescence and his poly-substance dependency.

The applicant's real concern, it seems to me, is that given that he has not completed the recommended sex offenders treatment program, it may fairly be considered that his prospects of parole in the near future are negligible.  To the extent that the applicant's prospects of release on parole depend upon his ability to satisfy the authorities that he does not pose a danger to the community by reason of his sexual proclivities it seems, particularly having regard to the observations made by the learned sentencing Judge, that he has good prospects of showing that he does not constitute a danger to women or at least to women other than the complainant.

Now, whether the applicant is or is not able to satisfy the authorities on this score is not a matter which is apt to demonstrate that the sentences imposed were excessive in their totality.  That the applicant's actual release on parole should be made dependent upon a decision by the authorities as to his fitness for parole was not an unreasonable approach by the learned sentencing Judge.  It is true that the applicant has already spent a lengthy period in custody and has shown some positive signs in relation to rehabilitation, but, as the arguments advanced for the applicant acknowledge, the sentence of six years was not excessive in relation to the charge of maintaining, and the imposition of a cumulative sentence for his other offences cannot be said to be unreasonable.

A reduction in the head sentence for the maintaining offence and his other offences to a total of six years' imprisonment would, I think, involve a failure to recognise the serious and persistent abuse of trust which characterised the maintaining offence against his younger half sister and the disturbing feature that he suffered from hepatitis C during this period.  Furthermore, such a reduction would mean that the applicant would not receive the ongoing supervision which is most likely to be essential to his successful rehabilitation.

In conclusion, it has not been demonstrated that the sentences which were imposed were excessive, much less manifestly so, and it has not been demonstrated that the sentences were otherwise affected by error.  In my opinion the application for leave to appeal against sentence should be refused.

THE CHIEF JUSTICE:  I agree.

HOLMES JA:  I agree.

THE CHIEF JUSTICE:  The application is refused.