R v Deering[2008] QCA 209

SUPREME COURT OF QUEENSLAND

MACKENZIE AJA:  This is an application for leave to appeal against concurrent sentences of 4 years imposed on the applicant who is now 75 years old following his pleas of guilty to 12 counts of indecent treatment of a girl under 12 years.  The indictment alleged a period of 6 years from October 1966 to October 1972 over which the offences were committed.  The girl would have been between 2 and 8 years of age during that period.  The applicant would have been 33 to 39 years old then.  The Crown Prosecutor said at sentencing that the actual time span for the offences was more likely to be about 4 or 5 years.

At the time of the offending the applicant lived as a family friend and part of the extended family in a caravan at the complainant's grandmother's home which was in the same street where the complainant lived.  The complainant went to her grandmother's frequently and went to the caravan often.  It was during those periods that the offending occurred.

According to the complainant the applicant was essentially a father figure who played an active role in her and her sister's lives.  He gave them treats, took them sightseeing and exposed them to books and learning generally.  The applicant said that there was mutual idolisation.

The complainant was able to work out some relevant dates with the help of photos and other memorabilia eventually given to her by the applicant. She remembered that sometimes after the offending conduct he would brush her hair and photograph her.  Her recall was that she was 3 to 4 years old when he offending began and that it ended when she was 8.

The basis of the pleas of guilty was admissions by the applicant that he had kissed the complainant's vagina on 12 occasions.  The complainant had given an account that included that kind of conduct as well as the applicant on other occasions taking off her underpants, holding her vagina open with his fingers and masturbating with the other hand.  When those allegations were put to him by the police during questioning, as the Crown Prosecutor put it, "Some matters he was unable to confirm or to outright admit but he at least consented the possibility of that conduct."  Whether the word "consented" in the transcript is correct or whether it was intended to say "assented to" instead of "consented", the meaning is clear enough.  The Crown Prosecutor said that the applicant's attitude during questioning by the police was "highly cooperative". 

Offending of the kind charged is inherently serious and traumatic for the victim, as it was in this case according to her victim impact statement.  The conduct was persisted in for a number of years with an element of breach of trust; however it was not at the most serious end of the scale for indecently dealing since it was non-penetrative and non-violent.  It was in the applicant's favour that he stopped the conduct of his own accord, albeit after the complainant and her sister were sexually abused independently by a neighbour.  He has no criminal history at all.  There was a full hand-up committal and his intention to plead guilty was notified before the indictment was presented.

According to his counsel at sentence, the applicant had a lingering sense of guilt over the years and an expectation that his offending would catch up with him.  After he was questioned by the police he attempted suicide, having written to a relative and made provision for his funeral.  He was under psychiatric treatment and taking medication at the time of sentence.  A psychologist's report relied on at sentence presented him as a man who had a traumatic upbringing and, apart from the period during which the offending occurred, had led a solitary life and was chronically depressive, although after the period of offending he had bought a pest control business which he successfully conducted until retiring.

At the time the psychologist saw him he had a fear of shame and exposure in a public way during the sentencing process.  There was a treating psychiatrist's report that painted a similar picture.  At the time of the offences the maximum penalty for indecent treatment of a girl under 12 was 5 years.

Unfortunately the sentencing Judge was told by defence counsel below, who was not counsel appearing in this application for the applicant, that it was 7 years' imprisonment.  Although counsel for the respondent warned that it should not be assumed that the very experienced sentencing Judge did not appreciate what the maximum available penalty was, there is nothing in the sentencing remarks that suggests that she did not act on that misinformation.  Also imposition of a sentence of 4 years for a case with the present case's features, when the available maximum was 5 years, suggests that she must have been under a misapprehension as to the maximum penalty available.  It was also conceded by counsel for the respondent that old cases in which a sentence of 4 years was imposed, where the facts were comparable, were hard to find.

For the reasons given the sentence is manifestly excessive in all the circumstances and must be set aside and the applicant re-sentenced.

Mr Heaton submitted on the applicant's behalf that the aggregation of mitigating circumstances amounted to exceptional circumstances and warranted wholly suspending the term of imprisonment.  He particularly pointed to the passage of time since the offending, the advanced age of the applicant, the remorse and rehabilitation demonstrated by the applicant, together with his cooperation with the administration of justice, one aspect of which was his admitting to the conduct which formed the basis of the counts in the indictment which otherwise would have been very difficult to particularise.

He submitted further that the absence of any convictions, particularly since the applicant ceased offending of his own accord, was evidence that personal deterrence was not a prominent factor in sentencing.  He submitted that general deterrence could be provided by an appropriate head sentence which was then wholly suspended.  He relied on The Queen v. Bell [1982] Qd R 216 and The Queen v. Law, ex parte Attorney-General Queensland, [1996] 2 Qd R 63, with particular reference to the second category referred to in The Queen v. Law in support of his submission.

The matter of the appropriate sentence reduces to the question whether in all the circumstances it would be appropriate to impose no period of actual custody.  That involves balancing the observations in The Queen v. Quick, ex parte Attorney-General Queensland, [2006] QCA 477 and R v. Pham [1996] QCA 3 and the considerations in Bell and Law.

Despite what Mr Heaton has urged, in my view the case is one where some period of actual imprisonment had to be served.  The proportion between the parole recommendation and the head sentence in the learned sentencing Judge's sentence meant that there was a reduction of 50 per cent of the non-parole period to allow for mitigating factors.  In my view, in the particular circumstances of this case, a little more benefit than that was appropriate.  Mr Heaton submitted that a head sentence of 2 years was appropriate.  Counsel for the respondent suggested that such authorities as there were that related to offences of some age suggested that 2 and a half to 3 years was more appropriately the range.

In the light of the analysis that I have made I would make the following orders:

1.The application for leave to appeal be granted.

2.The sentences of 4 years' imprisonment on each count be set aside and in lieu thereof sentences of 2 years' imprisonment be imposed.

3.The parole release date be fixed as the 1st of September 2008.

THE PRESIDENT:  I agree.  I add only that the schedule of sentences of indecent dealing offences occurring in or before 1992 provided by counsel for the respondent support the sentence now proposed by Justice Mackenzie.

DUTNEY J:  I agree.

THE PRESIDENT:  The orders are as proposed by Justice Mackenzie.

MR MARTIN:  I'm sorry, your Honours, this is a sex offence.  I'm trying to look it up now but I am not sure whether your Honours can fix a parole date.  I will have to turn it up.  It will take me a moment but I am reasonably confident in the case of sex offences your Honours can only make an eligibility date rather than a fixed date.

MACKENZIE AJA:  Do we have power to suspend it?

MR MARTIN:  Yes.

MACKENZIE AJA:  All right. We will suspend it as from the 1st of September and an operational period of two years.  That will get around that problem.

MACKENZIE AJA:  So, in lieu of what I pronounced, I will make order 3 that the sentence be suspended on and from the 1st of September 2008 with an operational period of two years.

THE PRESIDENT:  Yes, those are the orders of the Court.