R v SBM[2009] QCA 115

COURT OF APPEAL

FRASER JA

CHESTERMAN JA

DUTNEY J

CA No 343 of 2008

THE QUEEN

v

SBMApplicant

BRISBANE

DATE 05/05/2009

JUDGMENT

FRASER JA:  Yes, the Court is in a position to give judgment in this application.  I'll ask Justice Dutney to give the first reasons.

DUTNEY J:  This is an application for leave to appeal against an effective sentence of six years' imprisonment imposed in the District Court.  On the 21st of November 2008, the applicant was convicted and sentenced in relation to nine counts of indecent treatment of a child under the age of 12 years; one count of indecent treatment of a child under 14; six counts of indecent treatment of a child under 16; one count of attempted indecent treatment of a child under 16; six counts of possessing child abuse photographs; and two counts of possessing child exploitation material. 

The charges were contained in five separate indictments.  All of the indecent treatment charges were aggravated by the relationship between the applicant and the victim.  The charges of indecent treatment related to three children who were chronologically the applicant's stepdaughter, daughter, and stepson.

In relation to the applicant's stepdaughter the offending behaviour occurred between 1987 and 1991 when the child was aged from nine or 10, through to 13 or 14 years old.  The offences against the applicant's daughter were committed between 1993 and 1998 when the child was aged between 10 or 11, until she was aged 15.  The offences in relation to the stepson were committed between 2000 and 2001, when the child was aged eight or nine.  The offences in relation to the possession of photographs were committed in 2003 and the offences of possessing child exploitation material were committed in 2007.

The learned sentencing Judge imposed sentences of three and four years' imprisonment for the two offences against the first victim, two and five years for the eight offences against the second victim, and three and four years for the two offences against the third victim.  All these sentences were to be served concurrently. 

In relation to the child abuse photographs the applicant was sentenced to a concurrent term of six months' imprisonment.  For the child exploitation material offences the applicant was sentenced to twelve months imprisonment to be served cumulatively on the other sentences.  The end result was an effective sentence of six years' imprisonment.  No parole eligibility date was fixed. 

Under section 185 of the Corrective Services Act, the applicant becomes eligible for parole after he has served three years of the total sentence imposed.

There were a number of distinctive features of the case.  The period of indecent dealing was spread over about 14 years and involved three discrete victims in relation to which the offences did not overlap.  The offences were serious, including digital penetration of the girls, and fondling the boy's penis and allowing the boy to fondle his penis while he was naked. 

The offences were uncovered in 2003.  The police located the child abuse photographs during the course of the investigation.  The applicant was then charged but fled the jurisdiction in 2004, changed his name by Deed Poll and went to the Northern Territory.  In December 2004, he was charged in Darwin with possessing child abuse material.  The applicant was convicted of that charge in 2006 and was sentenced to seven months' imprisonment, suspended for two and a-half years.  That is the only entry on the applicant's criminal history.

A warrant was issued for the arrest of the applicant when he failed to appear in the District Court in 2004.  That warrant was executed in December 2007, at which time the police located the child exploitation material.  This combination of being charged, fleeing the jurisdiction, committing similar offences to the last group with which he was charged, being sentenced, and returning to commit further similar offences explains the learned sentencing Judge's imposition of a cumulative penalty for the 2007 offences.  I do not think his Honour's justification for imposing a cumulative sentence can be criticised in these circumstances.

The applicant was born on the 14th of March 1955.  His offences commenced when he was 31 years old and have continued until recently.  He is now 54.  Before being sentenced the applicant spent 315 days in custody on remand.  This time could not be declared because there were other less serious charges for which the applicant was also remanded, and for which he was not being sentenced in the District Court.  The time could thus not be declared as time served.

The prosecution submitted that the appropriate head sentence was in the range of five to six years' imprisonment.  This range was supported by the decisions of this Court in the Queen v Strohfeld [1998] QCA 318, R v S [2001] QCA 54, and R v D [2003] QCA 455, to which we have been referred. 

Defence counsel did not challenge the range but submitted that the sentence should be at the lower end of the range and an additional allowance made for time already served.  In this Court it was also submitted that the learned sentencing Judge erred in not providing for an early parole eligibility date to reflect the pleas of guilty.  The learned sentencing Judge accepted the range submitted as being appropriate for the indecent dealing offences.  In his sentencing remarks his Honour noted that the applicant must be regarded as a dangerous paedophile, a conclusion it is difficult to challenge having regard to the history of offending. 

The applicant demonstrated little, if any, insight into his offending, and therefore could not be regarded as particularly remorseful.  His Honour considered this lack of insight to be disturbing.  His Honour was also influenced by the gross breaches of trust owed to the three children to whom he was in loco parentis.  His Honour was aware of the requirement that he either give the applicant a benefit for the pleas of guilty or give reasons for not doing so.  The delayed hearing as a result of the applicant's flight with the corresponding increase in uncertainty for the victims negated in his Honour's mind much of the benefit of the pleas.  Despite the lengthy delay, there had been no attempt at rehabilitation, rather there had been further offending.  His Honour considered these factors negated the usual benefit of an early parole eligibility date.  The learned sentencing Judge recognised the likely limited utility of an early parole eligibility date in this case but did not take it into account in his decision. 

The features I have indicated persuaded his Honour that the sentence for the indecent treatment offences should be at the higher end of the range.  His Honour then discounted the sentence by 12 months to reflect the 10 and a-half months' undeclarable pre-sentence custody.  To reflect the seriousness of the further offending after the initial arrest and flight, his Honour considered that the sentence for the last group of offences should be dealt with separately and a cumulative sentence imposed. 

As I have already said, I do not think this approach can be legitimately criticised on the facts of this case.  The learned sentencing Judge considered the appropriate sentence for the last group of offences should be 18 months' imprisonment but reduced it by six months to further reflect the time served on remand.

The effect of all this is that his Honour commenced at a starting point of seven and a-half years and ultimately came to a sentence of six years to reflect the time already served on remand.  On a sentence of seven and a-half years, the applicant would have been required to serve 45 months in actual custody before becoming eligible for parole.

As a result of the sentence in fact imposed, the applicant will be eligible for parole after serving 46 months of actual imprisonment.  The difference is minimal. 

In my view the end result, while higher than that submitted for by the prosecution below, is not outside the range for a sound exercise of the sentencing discretion when all relevant factors are taken into account.  The absence of a parole eligibility date can be justified in this case by the factors his Honour took into account, as well as by the generous discount for pre-sentence custody.  In total, the effective sentence was reduced by 18 months to reflect 10 and a-half months' served. 

I do not consider that the most serious offence necessarily sets the upper limit of the effective head sentence where there has been a long period of offending with further offences being committed while on bail for earlier offences.  I am not satisfied that any error in his Honour's approach has been demonstrated.  I would dismiss the application.

FRASER JA:  I agree, but one matter that weighs particularly with me is that it plainly would have been open to the sentencing Judge to order that the sentences in respect of each of the three complainants should be served cumulatively.  If it would have been appropriate to reduce the resulting total term to avoid the overall sentence being crushing, nevertheless the resulting sentence would have been at least as severe as that imposed by the sentencing Judge.  I would also refuse the application. 

CHESTERMAN JA:  I agree that the application should be refused for the reasons given by Justice Dutney.  I also agree with the remarks made by Justice Fraser. 

FRASER JA:  The order of the Court will be that the application is refused.