R v Kelly[2009] QCA 185

SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The applicant pleaded guilty on 22 October 2008 to an ex officio indictment charging him with one count of indecently dealing with a child on a date unknown between 30 June 2001 and 17 June 2002 with the circumstances of aggravation that she was under 12 years and in his care.  He was sentenced to three months imprisonment suspended forthwith with an operational period of 12 months.  He applies for leave to appeal against his sentence, contending that the sentencing judge erred in construing s 5 Child Protection (Offender Reporting) Act 2004 (Qld) ("the Act") and in concluding there was no reasonable alternative other than imprisonment.  He also contends that the sentence was manifestly excessive.

[2]  The applicant was 43 at sentence and 35 or 36 at the time of the offending.  He had no criminal history. 

[3]  The circumstances of the offence were most unusual.  They were contained in a schedule of agreed facts which was tendered at sentence and were as follows.  The applicant attended the police station and made admissions to this offence long after it occurred and without any complaint ever having been made to police.  At the time of the offence, his then wife operated a day and night childcare facility from their home under the auspices of a church.  The complainant child was a short-term resident at the childcare facility.  The applicant became attached to the child.  He came home one evening intoxicated.  As he walked past her room, he saw her in bed asleep.  He entered her bedroom, put his hand underneath her underpants and touched her on the vagina.  After a couple of seconds he removed his hand, left the room and went to bed.  He did not penetrate her vagina and she did not wake up during the incident.  The next day he asked her if she knew what had happened the night before.  She said nothing had happened.  He then spoke to her about "appropriate and inappropriate touching".  At sentence, the victim remained oblivious to the fact that the offence had occurred.  The incident was an isolated act.

[4]  The prosecutor at sentence submitted that a term of imprisonment of between four to six months was appropriate but because of the exceptional mitigating features the applicant could be released on parole or his sentence suspended forthwith. 

[5]  Counsel for the applicant at sentence made the following submissions.  At the time leading up to the commission of this offence, the applicant was a manager for a bus company.  As there was a driver's strike he was required to drive the buses.  This resulted in him being heavily ostracised by, and subject to picketing from, union members.  He was not coping well with the stress, was drinking heavily and took 10 months workers compensation leave.  It was in that context that he committed this isolated offence.  When he realised what he was doing, he immediately desisted, felt ashamed and shocked, and left the room.  He suffered extreme guilt and contemplated and later attempted suicide.  His step-son persuaded him not to kill himself.  In the course of their discussions, he confessed committing the offence to his step-son, who passed on the confession to the applicant's partner.  Their marriage broke down as a result.  He has since formed a new relationship.  He is no longer receiving psychiatric treatment and has recovered from his former mental health problems.  He is now actively involved with a church group, gainfully employed and no longer in need of supervision.  He pleaded guilty at an early stage on an ex officio indictment.  The offence was within the least serious range of offending for this offence, with no detrimental impact on the complainant.  The circumstances were so exceptional that the appropriate sentence was either no further punishment or a fine.

[6]  Defence counsel made clear that he hoped that because of the unusual circumstances of the offence, the sentence imposed would be one that did not invoke the reporting requirements of the Act.  Considerable discussion ensued between the judge and counsel as to the effect of s 5 of the Act and whether such a sentence could or should be imposed.

[7]  In passing sentence, the judge made the following observations.  The applicant pleaded guilty at an early stage to an ex officio indictment.  He had no prior convictions.  After relating the circumstances of the offending, the judge commented on the unusual feature that no complaint had been made and the offence was detected solely from the applicant's confession to police, prompted very substantially by remorse.  The offending had a serious impact on the applicant who suffered resulting psychiatric problems, attempted suicide on a number of occasions and was hospitalised for psychiatric reasons.  The applicant had a good employment history, was currently in employment and had formed a new relationship.  He committed this offence when he was under a great deal of stress and self-medicating by abusing alcohol.  There was no penetration of the victim.  This was an isolated, impetuous incident.  The child did not suffer any adverse consequences.  The applicant was very remorseful and there was no risk of re-offending.  The judge noted that, regardless of the sentence he imposed:

"one of the consequences is that [the applicant] will become a reportable offender for the purposes of the Child Protection Offender Reporting Act 2004.  That appears to follow whether or not I record a conviction for the offence, so long as a term of imprisonment is imposed or there is a requirement that you be under the supervision of a supervising authority or another person or body, that is, that you will be required to report unless the requirements of section 5(2)(b) are satisfied." (errors in the original)

[8]  The judge added that he did not think the applicant should be subject to the restraints of a reportable offender under the Act.  If he had the discretion, he would structure a sentence to avoid that consequence, adding: "However, the matter has been put before me on the basis that option is not open and that seems to be the case."  The judge concluded that there was "no reasonable alternative to a short term of imprisonment" but the exceptional circumstances of this case warranted its suspension forthwith.

[9]  The applicant in this application contends that the judge misconstrued s 5(2) of the Act and unnecessarily fettered his sentencing discretion.  That section relevantly provides:

"5  Reportable offender defined

(1)  A reportable offender is –

(a) a person who is sentenced for a reportable offence after the commencement of this section; …

(2) However, a person mentioned in subsection (1)(a) is not a reportable offender merely because—

(a) the person was convicted of a class 1 or 2 offence, if the conviction was not recorded under the Penalties and Sentences Act 1992, section 12 … ; or

(b) the person was sentenced for a single class 2 offence, if the sentence did not include—

(i) a term of imprisonment; or

(ii)  a requirement that the person be under the supervision of a supervising authority or another person or body; or

…

(4) A person stops being a reportable offender if—

…

(b) the person’s sentence for the only offence that makes the person a reportable offender under this Act is reduced or altered so that the person would have been a person mentioned in subsection (2)(a) or (b) had the amended sentence been the original sentence; …"

[10] The term "reportable offence" is defined in s 9 of the Act as including a class 2 offence.  It is common ground that the applicant's offence is a class 2 offence under Sch 2 of the Act.  It is clear from the terms of s 5 set out above, especially s 5(2)(c) and s 5(4), that s 5(2)(a), (b) and (c) provide exceptions to the circumstances in which a person is a reportable offender under s 5(1).  The use of the words "merely because" in the introductory words to s 5(2) are confusing, but in context they clearly are intended to mean "where".  It follows that if an offender comes within any of the exceptions in either s 5(2)(a), (b) or (c), the person is not a reportable offender under the Act.  If the judge considered otherwise, this was an error which affected the sentencing discretion. 

[11] The applicant's second contention is that the judge erred in concluding that there was no reasonable alternative other than to impose a sentence on the applicant of imprisonment, albeit a fully suspended term of imprisonment.  It is not entirely clear from the sentencing remarks whether his Honour construed s 5(2) in this way.  His Honour does seem to have considered that he was bound to impose a custodial sentence on the applicant.  In doing so, the judge wrongly fettered his sentencing discretion: cf R v Gallagher; ex parte Attorney General of Queensland;[1] R v SAT[2] and R v Mirza; ex parte A-G (Qld).[3]In SAT I observed (Fryberg J agreeing) that in the unusual facts of that case, the 12 month probation order imposed at first instance was within range for a sexual offence.  I observed that as rehabilitation had already taken place, a bond would also have been within a sound exercise of the sentencing discretion.[4]

[12] The extraordinary combination of mitigating circumstances in this case meant that, despite the seriousness of the type of offence to which the applicant pleaded guilty, a period of actual imprisonment, even if fully suspended was not mandatory.  A good behaviour bond in this case was not only an appropriate penalty but also a more suitable penalty than either a fully suspended term of imprisonment or probation or community service.  The judge wrongly fettered his sentencing discretion in considering that a custodial sentence, even if fully suspended, must be imposed.  This error requires that leave be granted and the appeal allowed.  This Court must now re-sentence the applicant.

[13] The remarkable concatenation of exceptional mitigating features in this case, including the applicant's prior good history and subsequent complete and long-standing rehabilitation; that the primary judge considered that there was no prospect of re-offending; the applicant's complete cooperation and early plea; and the absence of any harm at all to the complainant, mean that, unusually, the most appropriate sentence is a 12 month good behaviour bond.  The offence to which the applicant pleaded guilty was, nevertheless, serious.  He touched a vulnerable, sleeping child, in his care, on the vagina.  After considering the matters listed in s 12 Penalties and Sentences Act 1992 (Qld), I am satisfied that, despite the many mitigating features, a conviction should be recorded.  The sentence I would impose falls within the terms of s 5(2)(b) of the Act and so the applicant would not be a reportable offender under the Act.

[14] It is not necessary to consider a point which was not raised by counsel, either at first instance or in the hearing of this application.  The Act did not come into force until after the applicant committed the offence, although it was in force at his sentence.  It may well be arguable that unless the Act is expressly declared to be retrospective, it does not apply to the sentencing of the applicant: cf R v Mason and Saunders[5] and R v Inkerman & Attorney-General of Queensland.[6]

[15] I would make the following orders.  The application for leave to appeal is granted and the appeal allowed; the sentence imposed at first instance is set aside; instead a conviction be recorded and the applicant is released under s 30 Penalties and Sentences Act by entering into a recognizance in the sum of $500, conditioned that he keep the peace and be of good behaviour for a period of 12 months.

[16] KEANE JA:  I agree with the reasons of the President and with the orders proposed by her Honour.

[17] JONES J:  I have read the reasons prepared of the President in draft form.  I respectfully agree with those reasons and the order proposed.