R v Wharton; ex parte Attorney-General
[2009] QCA 396
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- Unreported Judgment
- R v Wharton; ex parte Attorney-General[2009] QCA 396
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R v Wharton; ex parte Attorney-General[2009] QCA 396
R v Wharton; ex parte Attorney-General[2009] QCA 396
SUPREME COURT OF QUEENSLAND
CITATION: | R v Wharton; ex parte A-G (Qld) [2009] QCA 396 |
PARTIES: | R |
FILE NO/S: | CA No 252 of 2009 DC No 95 of 2009 DC No 96 of 2009 |
DIVISION: | Court of Appeal |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | District Court at Maryborough |
DELIVERED ON: | 22 December 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 1 December 2009 |
JUDGES: | Holmes JA, Atkinson and Daubney JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
|
CATCHWORDS: | Criminal law – appeal and new trial – appeal against sentence – appeals by crown – exercise of discretion – generally – where the respondent was convicted of three counts of indecent dealing with a child, two counts of exposing a child to an indecent act, three counts of permitting himself to be indecently dealt with by a child and three summary offences – where respondent on each of the indecent treatment counts was sentenced to two years imprisonment, to be suspended after 114 days with an operational period of three years – where conviction recorded for summary offences but no further penalty imposed – where Attorney-General appealed against the sentences imposed for the indecent treatment offences – whether the sentencing judge erred in the exercise of his discretion R v P [2001] QCA 130, considered R v M [1995] QCA 394, distinguished R v SBM [2009] QCA 115, distinguished |
COUNSEL: | A W Moynihan SC, with L P Brisick, for the appellant M A Green for the respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent |
- HOLMES JA: I agree with the reasons of Daubney J and with the orders he proposes.
- ATKINSON J: I agree with the orders proposed by Daubney J and with his Honour’s reasons.
- DAUBNEY J: On 3 September 2009, the respondent was convicted, on his own pleas of guilty, of the following offences:
-three counts of indecent dealing with a child
-two counts of exposing a child to an indecent act
-three counts of permitting himself to be indecently dealt with by a child
-three summary offences of permitting his premises to be used for the purpose of possessing a dangerous drug and utensil.
- On each of the indecent treatment counts, the respondent was sentenced to two years’ imprisonment, to be suspended after 114 days with an operational period of three years. The sentences were concurrent, and the 114 days pre-sentence custody were declared time served under this sentence. In respect of the summary offences, the respondent was convicted, but no further penalty was imposed.
- The Attorney-General has appealed against the sentences imposed for the indecent treatment offences, asserting that:
- the sentences failed to reflect adequately the gravity of the offences generally, and in this case in particular,
- the sentences failed to take sufficiently into account the aspect of general deterrence, and
- the sentencing judge gave too much weight to factors going to mitigation.
Criminal history
- Before dealing with the circumstances of these offences, it is necessary to say something about the respondent’s criminal history.
- On 13 November 2008, the respondent pleaded guilty to:
-one count of indecent treatment of a boy, that offence having occurred between 11 February 1988 and 29 August 1989, and
-two counts of indecent treatment of a child who was under care. Those offences, which occurred in the one incident, were committed between 31 July 1989 and 29 August 1989.
- The respondent was 48-49 years old when these incidents occurred, and was 67 years old when sentenced.
- All of the offending involved the one complainant. The first incident occurred when the complainant was 14 years old. The respondent had the complainant do exercises in front of him while removing items of clothing. The more clothes the complainant removed, the more the respondent would pay him. The respondent then massaged the boy and fondled his genitals.
- The second incident occurred when the complainant was about 15 years old. The respondent plied the complainant and another boy with liquor. When the complainant was drunk, the respondent took him to bed and rubbed his face on the boy’s penis (count 2 on the indictment), then lubricated the area around the boy’s anus before rubbing his penis on the boy’s legs and ejaculating. When confronted the next day, the respondent told the boy that he was sorry but he had had too much to drink.
- When sentencing the respondent on 13 November 2008, the learned District Court judge in that matter, Martin SC DCJ, said:
“The complainant did not make a complaint in relation to this offending until June 1999, almost a decade after the commission of the offences. He became disheartened by what he believed was slow progress in relation to the investigation of you and in November 2000, exacted retribution in a very serious way, by holding you and your wife at gunpoint in the early hours of the morning. In the course of that very frightening episode, he struck you about three times and the sawn-off shotgun which he had was discharged.
It seems, then, that the investigation in relation to you stalled because of this episode and it wasn’t until June 2005 that the investigation in relation to you resumed in any meaningful way. You, at all times, denied any wrongdoing in relation to the complainant. In January 2007, you subjected the complainant to cross-examination at committal proceedings. It seems through a recording malfunction, another committal had to be conducted, but on that occasion, it was a full hand-up committal. An indictment was first presented in this Court in June this year. Your trial was set down for the last sittings, but you were ill. Your trial was set for this sittings and when you were to appear yesterday in this Court, you failed to do so. A bench warrant issued and you were apprehended.”
- Martin SC DCJ expressly took the following matters into account:
-the respondent’s late plea of guilty (not as indicative of remorse, but for having effected a saving in the administration of justice)
-the respondent’s personal history of community service
-his age at the time of sentencing, and the fact that he had a heart condition
-the delay of nearly 20 years since the commission of the offences
-the fact that there had been no suggestion placed before the sentencing judge that the respondent had re-offended during the intervening period. The sentencing judge considered that this demonstrated the respondent’s rehabilitation.
- On the most serious of the offences, the respondent was sentenced to three years’ imprisonment, suspended after six months, with an operational period of three years.
- Under this sentence, the respondent would have been due for release on 12 May 2009. On 29 April 2009, however, he was remanded in respect of the current offences, and remained in custody for 114 days until sentenced on 3 September 2009.
The current offences
- Between 2003 and 2008, the respondent took a number of boys (“K”, “H” and “L”) on camping trips. From about 2004, he started supplying alcohol to the boys while on the camping trips. In 2005, the respondent started a “dare book”, listing prizes (including money) which would be awarded to those who completed activities in the book. In late 2005 or early 2006 the activities in the “dare book” were expanded to include ones of a sexual nature. The respondent also supplied the boys with cannabis and other stimulant medication.
- The conduct which comprised the subject offences can be summarised as follows:
Count 1 – this occurred when the respondent had the boys on a camping trip during the 2004 Christmas school holidays. K was 11 years old. While the other boys were elsewhere, the respondent walked around naked, approached K, rubbed his thigh and groin and asked if K wanted a massage. When K refused, the respondent offered to give him $100 if he allowed the respondent to do what he liked with him. That night, K was sleeping inside a sleeping bag in a camper trailer with one of the other boys and the respondent. The respondent, who was naked, climbed on top of K’s sleeping bag and simulated sex with him. K pushed the respondent away and went to sleep in a car with one of the other boys.
Count 2 – this occurred on a camping trip in 2006. The same boys, including K, were present. K fell out of a tree and hurt his back. The respondent offered to massage it. K lay down, and the respondent, who was naked, began to massage his back with cream. He put his hands inside the boy’s boxer shorts and between his buttocks. K asked the respondent to stop. The respondent told him to roll over. K complied, and the respondent fondled K on the outside of his boxer shorts until he pushed the respondent away.
Count 3 – this occurred on a camping trip in the first half of 2006. K was not present on this occasion. One of the other boys, L, woke up around midnight to go to the toilet and saw the respondent standing naked at the door to the tent. L went to the toilet and the respondent followed and, despite being forcibly told to go away, stood next to L while the boy urinated. When they returned to the tent, the respondent wanted to lie down with L, but L punched him and the respondent returned to his own camper trailer.
Count 4 – this occurred during a camping trip in the first half of 2006 when L, at the respondent’s request, injected an erectile dysfunction drug into the respondent’s penis. The respondent was naked at the time. His penis became erect, and he began to masturbate himself.
Count 5 – this arose out of the same incident as Count 4, and related to the other boy, H, observing L inject the respondent’s penis.
Count 6 – this occurred during a camping trip in 2007. The boy L mentioned that he was short of money, and the respondent invited him to choose a task from the “dare book”. L chose to inject the respondent’s penis with the erectile dysfunction medication. He saw the respondent’s penis become erect. The respondent walked away into the bush saying he needed to go to the toilet. The next day he gave $10 to the boy.
Count 7 – during another camping trip in 2007, L injected the erectile dysfunction medication into the respondent’s penis in return for payment of $10.
Count 8 – this was another incident of L injecting erectile dysfunction medication into the respondent’s penis in exchange for $10, and was done in the presence of the boy K.
- It is to be noted that the offences contained in Counts 6, 7 and 8 were committed while the respondent was on bail for the earlier indecent treatment offences.
The sentence
- In the course of sentencing the respondent, the learned primary judge referred to the fact that, whilst the respondent’s offending was serious, it could be distinguished from other more serious offending involving, for example, direct genital contact, penetration, or actual masturbation. The judge also referred to the fact that the respondent had been dealt with by Martin SC DCJ in respect of the prior offending, noting that “Judge Martin knew nothing about [the current offending] and was accepting you as a first offender at that time” and that this “is no longer the case”. His Honour noted that the later offences on the indictment were committed while the respondent was on bail, and also observed that it had been submitted to him by the prosecutor that, had all of the offences been dealt with together, the totality of the sentence would have been different. His Honour noted the submission by the prosecutor that the appropriate way to proceed would be by fixing a parole eligibility date, and the submission by counsel for the respondent that an appropriate sentence would involve suspension after declaring the 114 days served in custody. He acceded to that submission, noting that his concerns that the respondent be supervised on his release were addressed by the fact that the respondent would be subject to supervision by reason of what his Honour referred to as the child protection legislation (presumably the Child Protection (Offender Reporting) Act 2004). His Honour sentenced the respondent to two years’ imprisonment in respect of each of the counts on the indictment. Those sentences were expressed to be concurrent. The sentence was suspended after 114 days’ imprisonment, with an operational period of three years. The 114 days of pre-sentence custody was declared time served under the sentence.
Submissions for the parties
- The Director of Public Prosecutions, appearing for the Attorney-General, argued that, notwithstanding the prosecutor’s submissions below, the appropriate head sentence for the current offences should be in the order of three years’ imprisonment, that to be cumulative on the sentences imposed in respect of the previous offending. It was conceded that this additional cumulative term should be moderated so that the aggregated period of imprisonment was not excessive. The submission was that the sentence should be varied by ordering that each of the two year terms of imprisonment for the present offences should be served concurrently with each other, but be cumulative on the three year term previously imposed by Martin SC DCJ, with an order that the respondent be eligible for parole after serving 18 months of the total five year period of imprisonment to reflect matters of mitigation, particularly the plea of guilty.
- For the respondent, it was submitted that there was no error in the exercise of the sentencing discretion below. Counsel referred to the sentencing judge’s consideration as to whether a further period of imprisonment should be served, as well as the judge’s consideration of the circumstances of the offending, the early plea of guilty and co-operation with the administration of justice, and the respondent’s personal circumstances (including his age and health).
- The Court was referred to a number of cases, said by the appellant to justify a more severe approach than that taken by the learned primary judge here. In R v P[1] the applicant, who was the step-father of the two complainants, was convicted on his own plea of several counts of indecent treatment of a child under 16 and numerous counts of indecent treatment of a child under 16 with the circumstance of aggravation (the child was 9-10 years old). The effective sentence in that case was two years’ imprisonment, with no recommendation for parole. The actual conduct engaged in by the applicant in that case involved more direct sexual contact with the children than in the present case. The applicant’s relationship of step-father with the children also involved a serious breach of trust. The Court of Appeal, however, refused leave to appeal against the sentence. In the course of his judgment, McPherson JA said:
“Factors tending to increase the sentence are the age of the complainants. As I have said, one was only 9 or 10 years old and, of course, also the fact that two complainants and not only one was involved. The offence certainly involved a gross breach of trust and what might fairly be regarded as exploitation of the two children for the applicant’s gratification.
There was some debate before us about the proper range of penalty to be imposed in cases that present features of this kind. For my part I think it is possible to regard it as extending from, say, 18 months to three years’ imprisonment. The variations and the decisions on the subject are considerable. But of course each of them is partly explicable by reference to particular facts in each case and perhaps in some cases features that impress a particular Judge more than others.
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.”
- In R v M,[2] the applicant had pleaded guilty to seven counts of indecent treatment of a child under 16. In each case, there were two circumstances of aggravation, namely that the child was under the age of 12 years and that the child was under the applicant’s care. The applicant was sentenced to three years’ imprisonment on each count, to be served concurrently, with a recommendation for parole eligibility after 12 months. Again, this was a case of a step-father interfering with a step-daughter. The offences were committed when the applicant’s wife was away from the family home, and involved numerous counts of intimate contact between the step-father and the step-daughter. An application for leave to appeal against the sentences on the basis that they were excessive was refused. Reference to that case is, however, of little assistance to the present case.
- The appellant also relied on R v SBM,[3] which was an application for leave to appeal against an effective sentence of six years’ imprisonment. The applicant had been 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 12, 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 children who were the subject of the indecent treatment were the applicant’s step-daughter, daughter and step-son. The judgment of the Court in that case was given by Dutney J, who observed that there were a number of distinctive features of the case, namely that 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. His Honour described the offences as serious, including digital penetration of the girls and fondling the boy’s penis and allowing the boy to fondle the applicant’s penis while he was naked. Again, the offending in R v SBM was of a far more serious and invasive type than in the present case, and also had the feature of family relationships which are not present here.
- I am not satisfied that it has been demonstrated that the imposition of an effective head sentence of two years’ imprisonment for the particular offending in the particular circumstances of this case was manifestly inadequate.
- I do, however, consider that the learned sentencing judge erred in his approach of permitting that sentence, which was not cumulative on the sentence previously imposed, to be suspended after only 114 days of imprisonment.
- It is clear that the respondent cannot now be re-sentenced in respect of the first offences, which were dealt with by Martin SC DCJ, even though it is equally clear that one of the bases on which that judge exercised a degree of leniency in the sentencing process, namely an apprehension that the respondent had not committed any further offences and had been rehabilitated, was mistaken. However, the net effect of the sentence imposed in respect of the present offences was that for both the previous offending and the more recent offending the respondent was actually imprisoned for only a total of some nine and a half months (from 13 November 2008 until 3 September 2009). In my respectful view, that is a manifestly inadequate period of actual imprisonment, having regard to the nature of the offences, the period of time over which they were committed, and the fact that the latest of the current offences were committed while the respondent was on bail.
- The mitigating factors in the respondent’s favour, including his pleas of guilty to the current charges and his age and health problems, are reflected, in my view, in the setting of a head sentence of two years for each count which are to be served concurrently with one another but which are not to be cumulative on the sentence previously imposed. The circumstances of this case do, however, require that these mitigating factors be balanced against the totality of the offending disclosed in the two tranches of offences for the purpose of determining the time which the respondent ought spend in custody.
- In my opinion, that balance would be achieved by sentencing the respondent on each of the current offences to two years’ imprisonment, to be served concurrently, for it to be declared that the 114 days pre-sentence custody be deemed time served under the sentences, and that the sentences be suspended after the respondent has served 8 months, with an operational period of three years.
- The net effect of this (assuming no breach of the conditions of suspension) would be that the respondent would serve a total of 14 months in actual imprisonment in respect of the previous and current offences. Such an outcome, it seems to me, properly serves as appropriate punishment for and denunciation of the totality of the respondent’s offending while making allowance for the mitigating factors in his favour.
- Accordingly, I would allow the appeal, but only to the extent of varying the sentences to provide that each be suspended after 8 months has been served.
- It will be necessary for the respondent now to be returned to custody to serve the balance of these sentences. For that purpose, I would order that the necessary warrant issue, but would also order that it lie in the Registry for a period of seven days from this judgment.