SUPREME COURT OF QUEENSLAND

[1]  MACKENZIE AJA:  I agree, for the reasons given by Jones J, that the sentence of two years imprisonment is not manifestly excessive. 

[2] With regard to early release, the amendment of the Penalties and Sentences Act 1992 (“PSA”) by section 497 of the Corrective Services Act 2006, which inserted a new Part 9, Division 3 PSA, subjects sexual offenders to a different early release regime from other prisoners serving terms of imprisonment of not more than three years.  The requirement in s 160D PSA that only a parole eligibility date, not a fixed parole release date, may be granted means that each offender’s case will be considered individually with regard to suitability for early release.

[3] The applicant’s submission that, instead of a parole eligibility date, a partial suspension of the sentence should have been granted, was based on a generalised concern that his release might be delayed because the period before the parole eligibility date was only nine months from the date of sentence.  It was submitted that he might not have time to gain a place in and complete any course which would enhance his prospects of release at the earliest possible date.

[4] It is not uncommon for such a submission to be made.  The underlying premise is that the demand for places on relevant courses is such that there is no guarantee that a place will be available in a timely way.  The difficulty with acceding to the submission in the present case is that, apart from the submission itself, there is no material from which a conclusion can be confidently drawn that, in the remaining period before the parole eligibility date – about five and a half months – the applicant will not have the opportunity to complete whatever requirements there are to enable his timely release.  While, in some cases, the relevant date may be so close that it can be safely inferred, without more, that there will be no real possibility of the prisoner being able to do so, there is no evidence in this case of any inquiries or other reasonably reliable information that might tend to suggest that a place on any relevant course would not be available in a timely way. 

[5] A submission was made to the sentencing judge that a partially suspended sentence be granted rather than a parole eligibility date fixed, but on the ground that the applicant was unlikely to offend again.  The experienced sentencing judge specifically referred to the desirability of the applicant undertaking a sexual offender’s treatment program of some sort.  She suggested that if there was no time to do it, it might be done while on parole.  She was plainly aware of the nature of the problem that can sometimes occur and plainly considered the submission urging a partial suspension, but rejected it. 

[6] There is no basis for concluding that the sentencing judge erred in principle in fixing a parole release date rather than ordering partial suspension of the sentence.  I agree that the application for leave to appeal against sentence should be refused.

[7]  CULLINANE J: I have read the draft reasons of Mackenzie AJA and Jones J in this matter and agree with what each has said.  I agree with Jones J that the application for leave should be dismissed. 

[8]  JONES J:  The applicant seeks leave to appeal against the sentences imposed by the District Court at Ipswich on 11 June 2008 following his pleas of guilty to –

All penalties to be served concurrently with parole eligibility on 11 March 2009 after a period of nine months.

[9] The circumstances of the offending were that the complainant was, at the relevant time, a 14 year old schoolgirl who lived across the road from the applicant’s home.  The complainant’s family had become friends with the applicant and his wife.  As a result of the trust thus formed, the complainant’s parents asked the applicant to collect the complainant and her brother from school in the afternoons and return them to their home.

[10]  Between 10 February – 4 April 2007 whilst undertaking this task, the applicant engaged in inappropriate conduct towards the complainant.  The conduct commenced as hugging and kissing but escalated into more pronounced indecent touching of her, on her clothes and under her clothes.  The applicant sent to the complainant indecent photographs, including photographs of his penis, and solicited her to send to him semi-nude photos of herself.  He facilitated these exchanges and his contact with the complainant by providing her with a mobile phone and the credit for its use.  As a consequence he would be in contact with the complainant very frequently at all hours of the day, including before, during and after school hours and over the weekend.  He flattered her, told her that he loved her and gave her presents.  This escalating conduct over the three month period is the substance of the maintaining charge.  The second count relates to the applicant’s conduct on Valentine’s Day when the applicant gave presents to the complainant and engaged in kissing with his tongue and hugging her.

[11]  The escalating behaviour reached its zenith on 4 April 2007, the night before the complainant and her family were due to go away on school holidays.  The complainant, knowing that the applicant’s wife was at work, visited his house dressed in her pyjamas with the intention of engaging in intimate relations.  The applicant engaged in indecent touching and kissing of the complainant and in particular progressing to the point of kissing the complainant on her vagina, licking it and inserting his tongue into her vagina (count 3).  He also moved on to insert his finger into the complainant’s vagina (count 4) and then rubbed his penis on and around the complainant’s vagina for a short period of time (count 5) and finally, made the complainant take hold of his penis with her hand and moved her hand up and down on it (count 6).  After about 15 minutes the complainant returned to her home.  It is common ground that the activities between the applicant and the complainant were consensual, but he was aware that she was a vulnerable young girl by reason of her having revealed to him that she was the subject of a sexual abuse by another man when she was an eight year old.  His actions were clearly an exploitation of her vulnerability.  Whilst he never pushed her into conduct she was not prepared to accept, the actions are appropriately seen as grooming type behaviour.  The learned primary judge regarded this fact as quite a serious aggravating factor going on to say, “[the complainant] had already had her trust destroyed by one male and you befriended her, she felt close to you, and then you again betrayed that trust by taking sexual advantage of her.”[1]

[12]  At the sentence hearing the prosecution contended for a head sentence of three years imprisonment.  The applicant’s counsel submitted for a penalty of 12-18 months imprisonment to be suspended after serving six months, particularly relying on the decision of R v AS[2].

[13]  The learned primary judge took account of the following matters:-

●  The vulnerability of the complainant

●  The disparity of their ages

●  The betrayal of the trust of the complainant and her family

●  The level of abuse was towards the lower end of the range of seriousness

●  The complainant was a willing participant

●  The most serious acts only occurred on 4 April after which contact ceased

●  The complainant was spared having to testify

●  The applicant was in a position of trust

●  The applicant had no prior convictions and had a good work record.

[14]  Before this Court the applicant contended that the decision in R v AS is a most comparable decision and submitted that an order suspending the term of imprisonment after six months was more appropriate than ordering parole eligibility.  The case concerned an offender having consensual intercourse with a 13 year old girl on two separate occasions.  The first was at the conclusion of a party at the offender’s house at which time both parties were intoxicated.  The second occasion occurred about one year later when the offender took the complainant to the movies and they engaged in touching each others genitals.  By the time of sentencing the offender had moved to another town, had formed a de-facto relationship and was the sole support of his partner and her child.  There were other mitigating factors which the Court of Appeal thought had been insufficiently allowed for, particularly his remorse, evidenced by his admission and plea of guilty.  He had also, after the first occasion, made efforts to ensure the conduct was not repeated.  There were good reasons therefore for the sentence to be varied to allow for suspension of the term after six months.

[15]  Counsel for the applicant also referred to R v Sutton[3] where a sentence of two years imprisonment with eligibility for parole after four months was imposed for one offence of indecent assault in contravention of s 352(1) of the Criminal Code after a trial where he had been acquitted of another count of indecent assault where the jury had failed to reach a verdict on one count of rape.  The conduct for which he was sentenced was the touching of the complainant’s penis.  The complainant was sixteen years old and had attended the offender’s professional practice, as a masseur, for treatment of a sore neck.  In the course of his second visit, the offender engaged in conduct which resulted in the charges.  The count on which the conviction was based related to the offender’s act of masturbating the complainant.  The submission that the tem of imprisonment ought to have been suspended was rejected by the court having regard to the breach of trust inherent in the offender’s action, the disparity in age and the offender’s lack of remorse.

[16]  Counsel for the respondent referred additionally to three other sentence cases,  namely –

R v C[4] where the Court of Appeal reduced a sentence from three years to two years imprisonment for an offender who committed three counts of indecent dealing with a child under the age of 16 years with circumstances of aggravation.  The appeal in that case proceeded not on the ground that the initial sentences were outside the appropriate range, but on the ground of the lack of parity with a co-offender who had committed a greater number of offences but received a lower sentence.  The case is only marginally useful in identifying the range.

R v WAA[5] the offender was convicted of one count of maintaining a sexual relationship with a child under 12 years of age and four counts of indecent treatment of a child under 12 years of age.  On appeal the sentence imposed on Count 1 was reduced from five years imprisonment to three years imprisonment and the concurrent terms of two years imprisonment reduced to 18 months for the indecent treatment.  The complainant was relevantly 11 years old at the time of the offending.  The offender was her grandfather.

R v O[6], the Court of Appeal refused to alter a sentence of 18 months imprisonment with eligibility for parole after serving six months for a single incident offence of indecent dealing with a child under the age of 16 years.  The complainant was the offender’s 13 year old stepdaughter.  The offender was 31 years of age with only minor criminal history and the offending was regarded as being at the lower end of seriousness for offences of that kind.

[17]  A consideration of these cases shows that the subject sentence falls within the range.  Counsel for the applicant before this Court noted the requirements of the Child Protection (Offender Reporting) Act 2004 which will oblige the applicant upon his release from custody to report to the Commissioner of Police on an annual basis.  It was submitted that this fact together with the applicant’s lack of previous convictions and good work record, would be a suitable check on his future offending, such that the sentence should be suspended after serving six months in lieu of the parole eligibility provision.

[18]  But what underpinned the submission for a suspended sentence was the assertion that where the period before parole eligibility is short, prisoners are often denied its advantage because courses for sexual offenders are not available within that time and parole eligibility is conditioned upon a prisoner undertaking the course.  It was asserted, though without any evidence, that some prisoners complete the full term of imprisonment without having the opportunity to undertake such a course.  As a consequence the amelioration of punishment to take account of mitigating factors is lost unless there is resort to the option of a partially suspended sentence.  Counsel for the respondent countered this assertion by stating that the correctional authorities do attempt to give priority to short time prisoners.

[19]  By s 160D of the Penalties and Sentences Act 1992, a sentencing court making orders in respect of a sexual offence has no power to order a parole release date but may only fix a parole eligibility date.  The courts cannot frame sentence terms taking into account the availability of offender programmes unless there is some evidence going to these matters and in this case there is none.  The presumption must be that the authorities will give effect to the court’s orders.  It is the executive government that bears the responsibility to ensure that there are sufficient resources to permit the timely undertaking of programmes which determine eligibility for parole.  An alternative might be to condition eligibility for parole upon the undertaking of an offender course outside the gaol setting.

[20]  It is generally accepted that an important use to be made of prisoner time to be served by sexual offenders is the completion of various programmes which address such offending.  There is nothing in the applicant’s background or the circumstances of the case which suggests that the substitution of a suspended sentence is warranted if its effect is to relieve him of the obligation to undertake such a course.  Alternative measures might include the linking of probation orders with suspended terms of imprisonment.  But such considerations are outside the scope of this application which is to determine whether the sentence imposed is manifestly excessive.

[21]  I am satisfied that the penalty imposed is within the appropriate range and its terms should not be disturbed.  I would therefore dismiss the application.