SUPREME COURT OF QUEENSLAND

[1]  MACKENZIE AJA:  I agree with the orders proposed by Cullinane J for the reasons given by him.

[2]  CULLINANE J: The applicant seeks leave to appeal against sentences of four years imposed in respect of each of eight offences, to which he pleaded guilty at the District Court at Brisbane on 13 June 2008.  The Court fixed an eligibility for parole date of 13 June 2009, that is after one year.  The terms were to be served concurrently.

[3] The offences all involved a young boy who was born on 7 November 2001 and were all committed in the early hours of Friday 8 June 2007.  The complainant is the child of the applicant’s partner.

[4] More particularly the offences to which he pleaded guilty were: 

(a)  three counts of unlawfully and indecently dealing with the complainant, a child under 16 years with a circumstance of aggravation being that the complainant was under 12 years; 

(b)two counts of procuring a child under the age of 16 years to commit an indecent offence with a similar circumstance of aggravation to (a) above;

(c)one count of unlawfully permitting himself to be indecently dealt with by the complainant, a child under 16 years with a similar circumstance of aggravation to that set out in (a) and (b) above and a further circumstance of aggravation that the complainant was under the applicant’s care;

(d) wilfully and unlawfully exposing the complainant, a child under the age of 16 years to an indecent act by the applicant with similar circumstances of aggravation to those set out in (c) above;

(e)one count of taking an indecent photograph of the complainant, a child under the age of 16 years with the same circumstances of aggravation as those set out in (c) and (d) above

[5] The applicant and the mother of the complainant were engaged to be married.  They occupied a dwelling with the complainant and his younger sister.  This had been the situation for some four months.

[6] The complainant referred to the applicant as “Dad”. 

[7] Shortly prior to the relevant date, the mother of the complainant started shift work, working 11 pm to 7 am.  During this time the children were left in the care of the applicant. 

[8] On the 8 June 2007 the applicant after the departure of the complainant’s mother began drinking alcohol and watching pornography on his computer.  At about 3 am. he walked into the complainant child’s bedroom, turned on the lights and awoke the child.  He told the child to undress fully and assisted him to do so by undoing a button on his pyjama top.  After the child was undressed the applicant carried the child out into the area where he had been watching the computer.

[9] There the applicant said to the complainant, “Do you want to learn some boy games that men do?” and directed the child to “put your hand on your wee wee”.  The complainant placed his hands over his penis and masturbated himself as the applicant directed him.

[10]  Shortly after the applicant put his hand on the child’s penis and masturbated the shaft of the penis for a few minutes.

[11]  A little later the applicant again touched the complainant child’s penis, this time reaching further between the complainant child’s legs and touching him on the testicles. 

[12]  The applicant took his own clothes off and placed them on the floor beside him, exposing his penis to the complainant child.  He asked the complainant child to masturbate himself and stood nearby naked watching the complainant child masturbating.  The complainant child was seated on a lounge at this time.  The applicant then came to the lounge and sat beside the complainant child and touched him on the penis and masturbated him.

[13]  He then asked the complainant child to masturbate himself which he did.

[14]  The applicant then told the complainant child to touch the applicant’s penis.  The child did so for a short period.

[15]  The applicant then told the complainant child to cover himself up with his shirt.  He then placed his own shirt over his own penis in case anybody saw them and then walked the complainant child from the room where these events had occurred back to the bedroom.

[16]  Whilst the complaint child was sitting on his bed the applicant asked him to masturbate him and he did so in the same manner as before.  The applicant held his own penis and masturbated himself at the same time.  This occurred over approximately three to four minutes.

[17]  The applicant then touched the complainant child on the penis for a short time.  He then laid the complainant child on his back on the bed and put his mouth over the complainant’s penis moving his mouth up and down the penis.  He then squatted over the top of the complainant child so that their penises were aligned and rubbed his penis against the child’s penis.

[18]  He then asked the complainant child to masturbate himself.  The complainant child did so in the manner that had previously been shown to him.  The applicant held his own penis and masturbated himself at the same time and ejaculated in full view of the complainant child. 

[19]  The applicant then told the complainant child to get dressed and to go to sleep.  He then left the child’s bedroom and returned to continue consuming alcohol and downloading pornography.

[20]  When the complainant’s mother returned home, the applicant told her that he had committed sexual acts against the complainant child.  He attributed this to the fact that he had been consuming alcohol and watching pornography.  According to the schedule of facts which was tendered as exhibit 1 in the proceedings the applicant and the complainant child attended her parents’ home where he again admitted to the sexual acts on the complainant child.

[21]  The complainant’s mother then reported the matter to the police.  The applicant was interviewed and made full admissions attributing his conduct to a problem with alcohol. 

[22]  The applicant was born on 23 November 1976 and has no prior criminal history.

[23]  This is a case in which although the child when interviewed made what was is said to be minor or general disclosures without any degree of particularity, the details of the offending came to light as a result of the applicant volunteering to the child’s mother and subsequently admitting to her parents and the police, what he had done.

[24]  The applicant has undertaken psychiatric treatment which commenced on 3 July 2007, a little less than a month after the events.  There is a report (exhibit 7) from a psychiatrist.  He attended on some 17 occasions having been seen lastly on 22 May 2008.  The report is dated 30 June 2008.  It is not known whether he has continued with this treatment.  The psychiatrist reports that the applicant expresses guilt about his behaviour and is remorseful.  He has suffered an adjustment disorder with depressed mood but his mental condition has now improved and he is able to function at work.  He has taken steps to limit his alcohol consumption. 

[25]  Before the learned sentencing judge, counsel who appeared for the prosecution contended for sentences in the range of two to three years.  He referred the court to two cases, both of which were Attorney-General appeals (R v Quick; ex parte A-G (Qld) [2006] QCA 477 and R v Craig; ex parte A-G (Qld) [2002] QCA 414).  In both of those cases, sentences of 18 months were imposed and counsel contended that the oral contact with the complainant’s penis represented more serious conduct than the conduct in those cases and should result in a somewhat higher sentence.  Counsel for the applicant contended for a sentence of two years. 

[26]  A comprehensive impact statement of the complainant’s mother was tendered which indicated that the child suffers ongoing emotional damage as a result of these events and what flowed from there. 

[27]  In imposing sentence the learned sentencing judge described the conduct as: “heinous, despicable, contemptible, nauseating”.

[28]  In his view the only redeeming features which mitigated in the applicant’s favour were his remorse and his plea of guilty at an early date.

[29]  He described the contents of the victim impact statement as “disturbing” and revealing “the devastation your actions have had and will no doubt continue to have on a young boy of six years of age.”

[30]  We were referred by both counsel to a number of judgments of the Court of Appeal.  It is fair to say that none of these reflect a sentence as high as that imposed in the present case.  Counsel for the respondent in seeking to uphold the sentences imposed contended that the sentences though at the top or towards the top of the range were nonetheless not outside of it.

[31]  In R v P [2001] QCA 130 the applicant pleaded guilty to two counts of indecent treatment of a child under 16 with a circumstance of aggravation namely that the child was under 13 and some eight counts of indecent treatment of a child under 16 years with circumstances of aggravation being that the child was aged nine in respect of some offences and ten in respect of others.

[32]  A sentence of two years was imposed in respect of each count with no recommendation for parole.

[33]  The complainant in respect of the first two counts referred to was the applicant’s stepdaughter and was at the time 13 years old.

[34]  On the occasion of the first of the offences he went to the bathroom where the complainant child was naked in the bath.  He picked her up bodily and she wrapped her legs around his torso.  He slid her down his body bringing her vaginal area into contact with his erect penis.  Later that day he asked her to expose her breasts to him while the two of them were using a computer.  He squeezed and massaged her breasts despite her protests.

[35]  The younger of the two complainants was another stepdaughter of the applicant and was nine years of age at the time of the first offences.  The applicant and the complainant showered together on three occasions on each of which he rubbed soap over her chest and vaginal area.  He sat on the floor of the shower and slid the child onto his lap until his penis came in contact with her vaginal area.  In respect of two of the counts he requested her to shower with him whilst she was dressed in a swimming costume.  He rubbed soap on her chest and vaginal areas and had her soap his penis and masturbate him with her hand.

[36]  That applicant had no previous criminal history and a good work record.

[37]  In the course of his judgment, McPherson JA said:

“It may be open to debate whether the range extends as high as three years in circumstances of this kind, but I am not satisfied that the Judge was wrong in choosing a range that went as far as that, if that was what he did in this case.”

[38]  The court refused the application.  Both Chesterman J and Holmes J (as she then was) expressed the view that a lighter sentence might properly have been imposed in the circumstances of the case but together with McPherson JA concluded that the sentences were within range and the application was refused.

[39]  In R v MAO; ex parte A-G (Qld) [2006] QCA 99 the Attorney-General appealed against sentences of 11 months and three weeks imprisonment suspended after three months for an operational period of two years in respect of each of two counts of unlawful and indecent dealing with a female child under the age of 12.

[40]  The complainant was the daughter of a family with whom the respondent and his wife were friendly.  The respondent was present in the complainant’s home as a guest of the complainant’s family.  The complainant awoke to find the respondent touching her on the genital area inside her panties.  With his fingers he was rubbing her clitoris and her genitals outside the outer labia.  As the complainant attempted to sit up the respondent pushed her back, opened her legs, pulled her panties to one side and put his arm on her leg and licked her genital area.

[41]  There was evidence placed before the court that the complainant who was 12 years of age suffered a diminution in her self-esteem and that there had been an adverse effect upon her friendships and social activities.

[42]  The court examined a significant number of cases when considering whether the sentence was manifestly inadequate.

[43]  Ultimately the court considered that the appeal should be allowed and that a sentence of imprisonment for twelve months suspended after six months for an operational period of two years should be imposed in respect of each offence.

[44]  Counsel for the respondent referred us to four cases.  In R v Schirmer [1995] QCA 242 the applicant sought leave to appeal against sentences of imprisonment for three years imposed upon his conviction after trial of two counts of indecently dealing with a girl who was at the time nine years and five months.

[45]  On the first occasion he approached the child whilst she was sitting in her father’s van.  He placed his hand up inside her pants and touched her about the vagina.  There was no digital penetration.

[46]  Shortly afterwards the applicant again went to the van and asked the complainant to come into his office in the building where the complainant’s father was cleaning carpets.  He there invited her to sit on his knee and when she did he again put his hand up inside her panties and again touched her on the outside of her vagina.

[47]  He had a prior conviction of a similar offence in 1990 in respect of which he had been placed on probation for two years and ordered to perform community service for 240 hours. 

[48]  The court set aside the sentence and substituted a sentence of two years imprisonment.

[49]  In R v SAQ [2002] QCA 221 the applicant pleaded guilty to one count of indecent treatment of a child under 16 with a circumstance of aggravation being that the child was under 12.  The child was in fact 7 years old at the time of the offence.  The sentence imposed was one of three years imprisonment with no recommendation for early eligibility for parole.

[50]  The applicant was the complainant’s uncle by marriage.  Her mother dropped her and her brother off at the home of the applicant’s ex-wife.  The applicant came to the house to visit his children.  In the computer room of the house, the applicant placed his hands inside the complainant’s shorts and underwear and touched her on the vagina on five separate occasions within a relatively short space of time.  There was no digital penetration.  The child had tried unsuccessfully to get away.

[51]  The evidence suggested that since those events she had become distrustful of others and given to outbursts of anger.

[52]  The applicant in that case had a history of similar offences having been convicted on two previous occasions of similar offences.

[53]  The court refused the application for leave to appeal against sentence.  Two members of the court expressed the view that the sentence was at or near the top of the range.

[54] R v M [1995] QCA 394 was a case in which an applicant pleaded guilty to seven counts of indecent treatment of a child under 16.  There were two circumstances of aggravation in respect of each count, namely that the child was under the age of 12 and that the child was under the applicant’s care.  A term of imprisonment of three years on each count was imposed with a recommendation that the applicant be eligible to be considered for parole after 12 months.

[55]  The conduct involved ranged from exposing the child to an indecent video tape, touching and licking her genitals, allowing her to touch and suck his penis and ejaculating over her body and masturbating in front of her.

[56]  The applicant was at the time residing with the mother of the child and the child was in his care.

[57]  The court refused the application having regard to the gravity of the offences and the range established by the cases to which it was referred. 

[58]  In R v Hamstead [1999] QCA 33 the applicant was convicted after trial of committing some 11 sexual offences on a young girl in the presence of her younger sister. 

[59]  The effective head sentence imposed was three years imprisonment which was ordered to be suspended after two years for an operational period of three years.  The offences took place on two separate days over a three day period in March 1998 and involved indecently dealing with a ten year old in the presence of her seven year old sister in the applicant’s caravan at a caravan park where he lived.  The conduct involved ranged from the rubbing of the breasts of the ten year old child, the insertion of his finger in her vagina, licking her vagina and inserting a cigarette in her vagina.  On one occasion he took the hand of the older girl and placed it on his penis and he exposed the two children to an indecent picture.

[60]  The applicant had no prior criminal history and was an invalid pensioner.

[61]  Apart from altering the sentence so as to avoid the parole eligibility being postponed beyond the statutory half way mark, the application was refused.

[62]  Having regard to these cases and to the other cases to which we were referred it seems to me that the sentences imposed here fall outside the established range for cases of this kind.

[63]  The conduct though very serious and repugnant as it was did not involve any penetration and is less serious than the conduct involved in some of the cases to which reference has been made and comparable with that in others although more serious than in some.

[64]  The applicant’s remorse, his plea of guilty and the fact that he volunteered the information about what had occurred (a circumstance which is said to merit special leniency – per Hayne J in AB v R (1999) 165 ALR 298 at 331) were all matters to be taken into account in the applicant’s favour.

[65]  In my view leave should be granted and the appeal allowed.  I would substitute in lieu of the sentence imposed, a sentence in respect of each count of two years imprisonment to be suspended after eight months and I would fix an operational period of three years.

[66]  JONES J: I agree with the reasons of Cullinane J and with the orders he proposes.