R v Beesley[2008] QCA 240

SUPREME COURT OF QUEENSLAND

HOLMES JA:  I'll ask Justice Muir to give his reasons first.

MUIR JA:  The applicant seeks leave to appeal against the following sentences imposed on him in the District Court on 18 April 2008.

Count 1:  Between 31 October 2005 and 4 June 2006 maintaining an unlawful relationship of a sexual nature with a child under 16 years.

Counts 2, 3 and 4: unlawfully and indecently dealing with a child under 16 years.

Counts 5 and 6:  On or about 3 June 2006, having unlawful carnal knowledge of a girl under 16 years in the applicant's care.

The Court order sheet records the following sentences.

Count 1:  A term of imprisonment of five and a half years.

Each of counts 2, 3 and 4:  18 months imprisonment.

Each of counts 5 and 6:  two years imprisonment.

The Court order sheet also shows a parole eligibility date of 18 December 2009 in respect of the sentences.  All sentences are concurrent by operation of Section 155 of the Penalties and Sentences Act 1992 (Qld).

If the transcript of the sentencing proceedings is accurate, and there is no reason to doubt it, the learned sentencing judge imposed, in open Court, only one sentence for all six offences; a sentence of five and a half years with a parole eligibility date of 18 December 2009.  A separate sentence must be imposed for each offence.  R v Crofts [1988] 1 Qd R 386, and R v Dolan [2008] QCA 41.  And subject to any statutory exception to the contrary, any sentence imposed must be imposed in open Court.  The Queen v Cornwell (1972) 2 NSWLR 1 and Criminal Code, s 617.

The exercise of the sentencing Judge's discretion thus miscarried and it is necessary for this Court to exercise the discretion.  It is necessary also for this Court to re-exercise the discretion because the sentence imposed was manifestly excessive.

The applicant was aged between 51 and 52 years at the time of the offences and the complainant aged between 14 and 15.  The complainant, a school girl, met the applicant through mutual friends.  He was a friend of the mother of one of her girlfriends.

Counts 2 and 3, which occurred in late 2005, involved kissing of a sexual nature, including the handling of the complainant's vulval area.  Count 2 also included digital penetration of the complainant's vagina.  The applicant desisted from this activity when told by the complainant that he was hurting her.

The complainant ran away from home just before her 15th birthday in June 2006 and came to reside with the applicant in his caravan.  Count 4, which occurred just after this time, involved conduct similar to that involved in count 3.  Count 5 involved intercourse at a camping ground after the complainant had consumed alcohol provided by the applicant.  The matters the subject of count 6 occurred later in the early hours of the same morning.  The applicant again penetrated the complainant's vagina with his penis and after being told that she was sore, and being requested to stop, he did so.

The offences came to light when later the same morning, police officers noticed the complainant and the applicant in the applicant's 4-wheel drive and saw alcohol and condoms in it.  The complainant informed police officers that she was a virgin at the time and had instigated the sexual encounter after being encouraged by a 16 year old female friend of the applicant to have her first experience of sexual intercourse with the applicant, a much older and more sexually experienced man.  The complainant was motivated also by a desire not to alienate the applicant's young friend.

Whilst conceding that this case does not compare readily with the more common maintaining cases in which the offence continues for a long period and involves more and more frequent offending acts, counsel for the respondent submitted that the sentence imposed, although high, could be supported by reference to R v Waerea; Ex Parte Attorney-General (Qld) [2003] QCA 20.  He pointed also to the "gross disparity in age between the complainant and the applicant."

In Waerea the intellectually impaired complainant was 13 years of age and the respondent 51.  The respondent and his partner from time to time looked after the complainant for her taxi driver father.  On the occasion on which the offence was committed, the respondent gave the complainant cannabis to smoke and alcohol. 

The intoxicated complainant vomited and whilst lying on her back on a mattress in the annexe to the respondent's caravan, the respondent lay on top of her and inserted his penis into her vagina.  The complainant's intellectual impairment and the abuse by the respondent of his position of trust were identified in the reasons as significant aggravating features.

In his reasons, de Jersey CJ discussed R v T, Ex Parte Attorney-General (Qld) 2002, QCA 132, in which the Court of Appeal increased to three years imprisonment the penalty imposed on a 43 year old man who pleaded guilty to two counts of indecent dealing with two counts of unlawful carnal knowledge of a 12 year old girl in his care.  He noted that the three year term "should be regarded as reflecting a measure of moderation" and that the penalty had been imposed on pleas of guilty.

The Chief Justice reasoned that the sentence of three years imposed in R v T, having regard to the features of the respondent's offending in Waerea which were especially reprehensible, would "translate to a sentence of approximately five years imprisonment."

The applicant here was in a position of trust once he accepted the complainant as a guest in his caravan.  The use of alcohol is also to be deplored.  In my view, however, the applicant's offending although involving more acts of sexual misconduct, was not as reprehensible as the violation of the physically ill, intellectually impaired child entrusted to the care of the respondent in Waerea.  Also that offender was sentenced after a trial.

Relevant also is the fact that the applicant had no prior criminal history.  He has had a good work history and has demonstrated remorse.  There is little prospect of his reoffending.  He suffered a significant head injury at work in Mount Isa, which led to a change in his personality and caused the disintegration of his marriage. 

For the above reasons, I would order that:

Leave to appeal be granted;

The appeal be allowed;

The sentences imposed at first instance be set aside;

and That the following sentences to be served concurrently be substituted:

Count 1:  the maintaining count, four years imprisonment suspended after 12 months with an operational period of four years;

Counts 2, 3 and 4:  12 months imprisonment;

Counts 5 and 6:  18 months imprisonment suspended after six months with an operational period of 18 months.

HOLMES JA:  I agree.  Although the maintaining here was charged over a seven month period, it is not suggested there was any offending behaviour other than the five acts charged, which occurred respectively over a short period in December 2005 and a matter of days in June 2006.

The most serious of them were the carnal knowledge offences which occurred effectively as one event, at a time when the complainant was a year short of the legal age of consent.  Those factors, in my view, are significant in distinguishing the case from many others involving maintaining with minors.

Given the age disparity and what was, to some extent, a relationship of trust, a sentence of imprisonment was certainly called for, but I agree for the reasons Justice Muir has given, that the sentence here was manifestly excessive.  I agree also with the orders he proposes.

PHILIPPIDES J:  I agree that the appeal should be allowed for the reasons given by Justices Muir and Holmes, and with the orders proposed.

HOLMES J:  The orders then will be as Justice Muir indicated.

The Court declares that Mr Beesley has already served 122 days of those sentences, the relevant period being between the 18th April 2008 and the 19th August 2008.