SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The applicant pleaded guilty on 13 December 2007 to 2 counts of unlawful carnal knowledge of a child under 16 (counts 1 and 2), 11 counts of indecent treatment of a child under 16 (counts 3 to 13), 3 counts of indecent treatment of child under 12 (counts 14, 15 and 17), and 1 count of possessing child exploitation material (count 16).  On counts 1 to 13 a conviction was not recorded and he was placed on two years probation.  On count 16 he was also sentenced to two years probation but a conviction was recorded.  On counts 14 and 15 he was sentenced to six months imprisonment.  On count 17 he was sentenced to 12 months imprisonment.  The terms of imprisonment were ordered to be suspended after serving 4 months with an operational period of 12 months.  He applies for leave to appeal only against the sentences of imprisonment imposed on counts 14, 15 and 17 contending that they were manifestly excessive.

[2] The applicant was 19 at sentence and 16, 17 and 18 when the offences occurred.  It was common ground that, although by then an adult, the sentencing court must have regard to the fact that counts 1 to 13 were committed when he was a child.  The Penalties and Sentences Act 1992 (Qld) applied to those counts, but the sentencing court was obliged to take into account the penalty that would have been imposed had he been dealt with as a child.  He could not be sentenced to a term of imprisonment longer than the period of detention that could have been imposed had he been sentenced as a child  (see Juvenile Justice Act 1992 (Qld) Div 11, especially s 144). 

The applicant's offences

[3] Counts 1 to 13 concerned the applicant's then girlfriend, J.  Those offences were committed in the context of that relationship.  As the sentences imposed on the applicant reflect, the much more serious offences were contained in counts 14 to 17 and involved J's nine year old sister, M. 

[4] The applicant met J on the internet and then in person towards the end of August 2004.  A few months later they commenced a sexual relationship.  He was then aged 16 and she was 14.  Their relationship continued for about 18 months.  The charges involving the nine year old M occurred in the first half of 2006 and were committed in the presence of J.

[5] The agreed statement of facts tendered at sentence set out the following matters.  The events constituting the offences against J were all consensual and J and the applicant were equal participants.  J and the applicant were also equally culpable in involving M in their sexual encounters.  The offences were discovered when a student at the applicant's school obtained emails between the applicant and J and passed them on to the school counsellor.  Count 1 occurred when the 16 year old applicant and the 14 year old J had sexual intercourse at his home whilst his parents were absent.  Count 2, another count of unlawful carnal knowledge, occurred on J's 15th birthday and when the applicant was still 16.  Counts 3 to 13 involved various consensual sexual acts between the applicant and J, including the following.  He masturbated in front of her and, with her consent, ejaculated on her.  He licked her vagina.  She rubbed his penis with her hand.  When he was away on holidays, the applicant took two photographs of his erect penis which he sent to J's mobile phone.  He took photographs of J naked or scantily clad.  He purchased a dildo for J and inserted it in her vagina.  Later he took a photograph of J with the dildo inserted in her vagina. 

[6] Counts 14 and 15 involved the applicant masturbating in front of J and M in J's bedroom.  J was 16 years old.  The applicant was 17 years old for count 14 and 17 or 18 years old for count 15 and M was 9 years old.  

[7] Count 16 was committed when J emailed to the applicant photographic images taken in J's bedroom of J licking M in the vaginal area and digitally penetrating her.  The applicant stored those images on his USB drive. 

[8] The final count occurred during the 2006 Easter school holidays when the applicant was 18.  He was at J's home in her bedroom when M entered.  J told her to bend over.  When she did so, J pulled down M's underwear.  The applicant pulled his pants down and rubbed his penis against M's buttocks for a short time simulating intercourse.  There was no penetration or attempted penetration.  He desisted when M began to cry and M and J asked him to stop.

J's offences and sentence

[9] J was also charged with criminal offences.  She pleaded guilty in the Children's Court to three counts of rape and four counts of indecent dealing with a child under 12.  Her plea was accepted on the factual basis, contrary to that on which the applicant was sentenced, that the applicant was the clear instigator of the offences.  J was sentenced under the Juvenile Justice Act 1992 (Qld) to 18 months detention to be released after 9 months and to 3 years probation with a special condition that she undertake treatment and/or counselling in relation to mental health issues and sexual offence intervention as considered appropriate.  No convictions were recorded.

The applicant's sentence

[10]  A victim impact statement prepared by the father of J and M was tendered at the applicant's sentence.  It unsurprisingly described the disastrous results of these offences on his family.

[11]  The prosecutor at sentence conceded that the offences involving J did not in themselves warrant a custodial sentence but emphasised the seriousness of those involving the nine year old M.  He contended that these warranted imprisonment of between two and three years with suspension or parole after 9 to 12 months to recognise the mitigating factors.

[12]  Defence counsel at sentence tendered a report from psychiatrist Dr Greg Apel.  He noted that the applicant was diagnosed with moderate to moderately severe abnormal auditory processing.  This had resulted in memory and auditory concentration difficulties.  Dr Apel referred to portions of pre-sentence reports concerning J which were prepared for the court sentencing her.  These suggested that J was a bright girl who had behavioural problems well before her relationship with the applicant commenced.  Dr Apel reached the following conclusions.  The applicant had no psychiatric conditions and was not a paedophile.  He was of below average intelligence but had done well in life because of his supportive family.  Since committing these offences, he had found employment and led a normal life.  His relationship with J had no appropriate boundaries and it was in this context that the offences occurred.  He now had empathy, insight and remorse about his conduct, especially in respect of the 9 year old M.  He did not seek to project blame or responsibility for these offences elsewhere.  His risk of relapse was low.  He had attended 10 sessions with psychologist Mr Ian Campbell.  He did not require psychiatric care.  He displayed gross misjudgement in the context of an intense relationship with J and this environment was unlikely to recur given his improved maturity.  A custodial sentence would disrupt his efforts at rebuilding his life and would place him in an environment of physical risk.

[13]  Defence counsel also tendered a number of excellent references.  These attested to the applicant's good background, supportive family, remorse, promising prospects of rehabilitation and supported his counsel's submission that the offences were out of character and unlikely to be repeated. 

[14]  Defence counsel relied on written submissions which emphasised the following mitigating factors.  The applicant was young.  He had commendable antecedents.  He had pleaded guilty at the committal proceedings and cooperated with the police and other authorities.  He was remorseful.  No violence, force or threats were used in the offences.  He had made commendable efforts at rehabilitation and had promising prospects.  Counsel ultimately submitted that probation should be imposed in respect of counts 1 to 16 inclusive.  On count 17 a fully suspended term of imprisonment or a term of imprisonment to be served as an intensive correction order was warranted.  He urged the judge not to accept all aspects of the victim impact statement, especially that portion which sought to direct blame onto the applicant.

[15]  The learned primary judge made the following observations in his sentencing remarks.  The age difference between the applicant and the complainants was an important factor.  Whilst it was not great in J's case, it was very significant in M's case.  Deterrence was an important factor in respect of the offences involving M.  The applicant's remorse and early plea of guilty and the matters in Dr Apel's report were of significance.  J pleaded guilty to more serious offences than the applicant.  His conduct in respect of M was, however, so serious that it warranted a period of imprisonment even having regard to the many mitigating factors in his favour.

The submissions on appeal

[16]  The applicant's counsel has referred this Court to a number of decisions said to be comparable in support of his submission that the sentence of imprisonment was manifestly excessive. 

[17]  The first was R v F; ex parte A-G (Qld).[1] F had committed numerous sexual offences about 20 years earlier, initially when F was himself a child.  The victims were his initially 7 year old nephew and 9 to 10 year old niece and, later, another young nephew.  He was placed on a 12 month good behaviour bond and 3 years imprisonment wholly suspended.  The Attorney-General appealed against the inadequacy of the sentence.  F's offences included masturbation, oral sex, sodomy, attempted intercourse and indecent treatment.  The complainants were reluctant participants.  He continued offending when an adult, compelling his by then 9 or 10 year old nephew to commit an act of oral sex on him.  He also placed a running water hose into the anus of each of his two nephews.  He sodomised one nephew against his will; the boy was crying.  F threatened to throw him off the roof of the house if he told anyone. The Chief Justice, with whom Mackenzie J and Helman J agreed, refused the Attorney's appeal.  The Chief Justice noted that a person offending in this way would ordinarily be required to serve a term of actual imprisonment but the unique circumstances justified the sentence imposed.  These included the following.  F had otherwise unblemished antecedents, pleaded guilty, had shown remorse and had a subsequent sound work history.  He was sexually abused as a child and suffered a degree of psychological dysfunction, including blurring of the perception of appropriate sexual boundaries at the time of his offending.  The expert evidence was that F was not at risk of re-offending.  The offending was exposed contemporaneously by one of the victims.  This had resulted in lengthy family discussions and F's acceptance that he should undertake psychiatric counselling, which he did.  He apologised to the complainants, offered to help them and had done so from time to time over the ensuing years.  It had been agreed within the family that if F proceeded in that way, the matter would not be reported to police.  Despite that earlier arrangement, his offending was, after many years, reported to police.  The unusual approach taken by the family at the time of the complaints was a most significant feature.  But for that, actual imprisonment in the order of four months was inevitable.  Mackenzie J emphasised that the case was exceptionally difficult and finely balanced.

[18]  The Court made clear that F must be confined to its own unique facts.  The remarkable circumstances referred to by the court there, whereby F had acknowledged and lived with his guilt and attempted to make amends to the complainants over a 20 year period, were not present here.  Further, F was an Attorney-General's appeal where manifest inadequacy had to be demonstrated for the appeal to be successful.  The maximum penalty in the present case for counts 14, 15 and 17 was 20 years imprisonment, not 14 years as in F.  F's sentence also pre-dated the enactment of s 9(5) Penalties and Sentences Act 1992 (Qld).  F does not show the sentence imposed on the applicant was manifestly excessive. 

[19]  The second case relied on by the applicant's counsel was R v GO; ex parte A-G (Qld).[2]GO was convicted after trial of two counts of indecent dealing of a child under 12.  He was 22 and the complainant, his nephew, 8.  He touched the boy's penis inside his pants and later put his penis in the boy's bottom although penetration was not established.  He was sentenced to six months imprisonment to be served as an intensive correction order.  This court considered that the sentence was at the low end of the sentencing scale having regard to the absence of the mitigating circumstance of an early plea of guilty; but it was within range, especially as GO had undergone years of treatment for his mental health; his condition was then stable and may have been compromised by actual imprisonment. 

[20]  As in F, the maximum penalty for GO's offences was 14 years imprisonment, not 20 years as in the present case.  GO, like F, was also an Attorney-General's appeal.  The sentence imposed in GO does not show that the present sentence was outside the appropriate range. 

[21]  The third case relied on by the applicant was R v K; ex parte A-G (Qld).[3]  K pleaded guilty to one count of indecent assault and five counts of indecent treatment of child under 12.  He was placed on two years probation with no conviction recorded.  The offences involved a 7 year old boy (the respondent's cousin) and 2 girls aged 10 and 8 (the children of the de facto wife of K's father).  K was aged between 17 and 19 when he offended.  He was a shy and introverted child who had difficulty at school.  His mother died when he was 16 and he became depressed.  The offences against the girls involved masturbating inside one girl's pants and simulated intercourse with the other for about 30 seconds whilst fully clothed.  The two offences involving the young boy arose out of a single incident.  He fellated the child for a short time and then rubbed his penis against the boy's bottom.  K had confessed to two of these offences before a complaint was made so that his cooperation with the administration of justice was remarkable.  He pleaded guilty and showed great remorse.  A psychiatric report suggested the offences arose out of his lack of social and personal skills at a time when he was in grief.  The likelihood of re-offending was low if his treatment continued.  The Attorney-General's appeal turned only on the non-recording of a conviction.  This Court (Davies JA, de Jersey J (as he then was) and Muir J) refused to interfere with the sentencing judge's discretion in not recording a conviction. 

[22]  This 1997 decision does appear inconsistent with more recent authority: cf R v Quick; ex parte A-G (Qld).[4]  Significantly, s 9(5) and s 9(6) Penalties and Sentences Act 1992 (Qld) have since been enacted so that s 9(2)[5] has no application to sexual offenders against children under 16.  K can be distinguished from the present case by K's extraordinary cooperation with the administration of justice and the subsequent legislative changes.  

[23]  The final case relied on in the applicant's submissions was R v BBE.[6] This Court set aside BBE's effective sentence of 4 years imprisonment with parole eligibility after 12 months and substituted an effective sentence of 3 years imprisonment suspended after 6 months with an operational period of 5 years, together with 3 years probation.  The offences involved two counts of rape (digital penetration), one count of rape (penetration with the tongue) and one count of indecent dealing with the circumstance of aggravation that the complainant was under 12.  The maximum penalty was life imprisonment.  BBE, like the present applicant, had no prior criminal convictions.  BBE was much more significantly intellectually impaired than the present applicant: psychological reports showed BBE's low IQ and significant intellectual deficits placed him at the bottom four per cent of the community.  The offences came to light when BBE made admissions to his 17 year old sister who contacted the child's family and who in turn made a complaint to police.  He pleaded guilty.    His motivation to address his deviant behaviour and his remorse reduced his risk of re-offending. 

[24]  The unusual combined factors of very significant intellectual impairment and his confession which initiated an investigation of the offences distinguish BBE from the present case.  BBE does not establish that the present sentence was manifestly excessive.

[25]  The applicant contends that, taking into account these comparable matters, the applicant's youth, early plea of guilty and excellent prospects, the sentence imposed was manifestly excessive: an intensive correction order or wholly suspended sentence should be substituted. 

[26]  The respondent's counsel has also referred us to a number of authorities.  But the circumstances of the offending in those cases are unlike the present case.  He has not been able to refer the Court to a comparable case resulting in a sentence of actual imprisonment involving a young offender, with the applicant's mitigating circumstances, who has committed such serious offences on a nine year old girl.  That is not surprising considering the remarkable circumstances surrounding the offences against M.  The respondent emphasised the following matters.  The maximum penalty for these offences was 20 years imprisonment.  The complainant M was very young. The offending against her occurred when the applicant was an adult.  The statement of facts shows that the applicant was equally to blame together with J for his offending.  In the absence of exceptional circumstances, adults who indecently assault or otherwise deal with children as young as nine should be sent to jail.  The sentence imposed was within range.

Further discussion

[27]  I am not persuaded that the cases, to which the applicant has referred this Court and which I have discussed earlier, demonstrate that the present sentence was outside the appropriate range.  Neither party has been able to refer the Court to any genuinely comparable cases.  There were serious aspects to the offending against M.  Although the applicant was still young, he was an adult.  The sentencing principles set out in the Penalties and Sentences Act 1992 (Qld) applied.  In light of his own caring upbringing, he must have realised the wrongfulness of his actions.  As J's long-term boyfriend, he was no doubt trusted by M and by M and J's family.  M probably looked up to him as she would an older brother.  At nine years old, M was too young to make any real or informed choices about her involvement in the offences.  The applicant and J should have protected, not exploited, her.  On the other hand it is significant that he used no force and desisted when M became upset and asked him to stop.

[28]  There were many significant mitigating factors in the applicant's favour: his youth; his excellent prospects of rehabilitation; his learning difficulties, which may have compromised his judgment and been a factor in his involvement; his dysfunctional relationship with J which was at the crux of his offending against M; his remorse; and his cooperation with the administration of justice, especially through his early plea of guilty at the committal proceeding. 

[29]  Important as these factors were, when balanced against the seriousness of the offences against M, they were not such as to compel the judge to frame a sentence which did not require a period of four months actual custody.  The maximum penalty in respect of counts 14, 15 and 17 was 20 years imprisonment.  Deterrence is always an important consideration when sentencing offenders, even young adult offenders for sexual offences against children as young as M.[7]  The applicant's exploitation of the nine year old M whilst he was her older sister's 17 and 18 year old boyfriend was abhorrent.  It was conduct which the community expects the courts to denounce through the sentencing process.[8]  Section 9(2) Penalties and Sentences Act 1992 (Qld),[9] which may make a sentence of imprisonment a last resort, has been excluded in respect of sexual offences against children under 16 by s 9(5).  

Conclusion

[30]  After carefully considering the submissions made on behalf of the applicant, I am not persuaded that the effective sentence imposed, requiring him to serve 4 months of a 12 month sentence of imprisonment, was manifestly excessive.  The suspension of the 12 month sentence after serving one third of it sufficiently recognised the many mitigating features.  The appropriate sentencing range in this case included a period of imprisonment of between 1 and 3 years either suspended or with parole eligibility immediately or after a short period; or 12 months imprisonment to be served by way of an intensive correction order.  The sentence imposed was within that range.  I would refuse the application for leave to appeal against sentence.

[31]  HOLMES JA:  I agree with the reasons of the President and the order she proposes.

[32]  MACKENZIE AJA:  I agree that the application for leave to appeal should be refused, for the reasons given by the President.