SUPREME COURT OF QUEENSLAND

[1]  MUIR JA: 

Introduction

The applicant, Benjamin John Carmichael pleaded guilty in the District Court to the following offences:

All sentences were ordered to be served concurrently and were cumulative on the reactivated term of a nine months sentence imposed on 16 November 2006.  The sentences were suspended after 14 months from the commencement of Carmichael's imprisonment with an operational period of three years.

[2] The applicant, Wade Adrian Armbruster, was sentenced on the same day as Carmichael to one count of wilfully exposing a child under 16 years in his care to an indecent act, namely, exposing her to indecent printed material and one count of knowingly making child exploitation material.  He pleaded guilty and was sentenced to 18 months and two years imprisonment respectively, each term to be served concurrently.  The terms of imprisonment were ordered to be suspended after eight months with an operational period of three years.

The circumstances in which the offences were committed

[3] Armbruster's offences and Carmichael's offences, the subject of counts 9, 10 and 11 on the indictment presented against him, came to light when an informant provided a video tape to police.  The video tape contained images of the 14 year old complainant girl in various states of undress being indecently dealt with by Carmichael.  It shows him attempting to remove her clothing and her objecting to being filmed.  The video tape also records Carmichael and the complainant engaged in open mouthed tongue kissing whilst embracing on a bed.  The complainant at one point is shown straddling Carmichael and remarking, "something is growing."  It may be inferred that the reference is to Carmichael's penis.  Those matters constitute the offence which is count 9 on the indictment against Carmichael. 

[4] The offence the subject of count 10 on Carmichael's indictment and count 2 on Armbruster's indictment occurred when the complainant and Armbruster were seated on the bed, looking at pictures of a pornographic nature in a magazine.  During the filming, which was done by Carmichael, the complainant, Carmichael and Armbruster engaged in conversation about the objects being viewed.  Count 11 is constituted by Carmichael's filming the viewing of the contents of the magazine and the related discussion.

[5] Count 3 on Armbruster's indictment concerned his videoing Carmichael and the complainant when they were engaged in the sexual acts on the bed described earlier.

[6] Counts 1 to 8 inclusive on Carmichael's indictment were committed in respect of a different complainant who was aged 15 at the time of the offences.

The applicants' antecedents

[7] Carmichael was 22 and 23 at the time of his offending.  He had no convictions for sexual offences but he had been convicted on three separate occasions of offences of stealing.  He also had a conviction in 2006 for entering a premises and committing an indictable offence.  For that offence and for the offences of stealing he was sentenced to a suspended nine month term of imprisonment.  The subject offences were committed during the operational period of the suspended sentence.  Carmichael left school after Year 10 and had a good work history.

[8] Armbruster was 42 at the time of offending.  At that time he was receiving treatment for a bipolar disorder.  He left school after Year 8 and shortly before being sentenced, obtained employment at the Collinsville mine.  His criminal history consisted of convictions in 1985 for stealing and breaking and entering with intent.

[9] The complainant, who had been living on the street, was given accommodation by Armbruster in his caravan.  He then assumed the role of de facto father.  Carmichael was also living in the caravan at the time.  He was described by the complainant as her "boyfriend".

Arguments advanced on behalf of Carmichael

[10]  Carmichael's total sentence was, effectively, two years and nine months.  The nine months constitutes the remaining term of the suspended sentence.  A two year term was imposed for each of counts 1 to 6.  Counts 9, 10 and 11 each attracted a 12 month term.

[11]  The two year term was ordered to be suspended after Carmichael had served 14 months.  Without any suspension Carmichael would have had the possibility of an entitlement to parole after 16 and a half months.

[12]  It is argued that the suspension after 14 months represents an effective discount of only 2 and a half months for his plea of guilty, co-operation with authorities, genuine remorse and attempts at rehabilitation.

[13]  Another argument put forward was that the sentencing discretion miscarried because the effect of the sentences imposed was to order, impermissibly, that the nine month term of imprisonment be suspended.  On the authority of R v Waters [1998] 2 Qd R 442 and R v Skinner; ex parte Attorney-General [2001] 1 Qd R 322, it was contended that there was no power in s 144 of the Penalties and Sentences Act 1992 to suspend part of a term of imprisonment ordered to be served on the activation of a suspended sentence.

Consideration of the submissions in relation to Carmichael

[14]  There is no substance in the last point.  The nine month term of imprisonment will have been served in its entirety when the suspension takes effect.  There is no good reason why the wording of the sentence should be regarded as having, or as having been intended to produce, the result contended by the applicants' counsel.

[15]  The consequences of the sentencing judge's orders are that Carmichael must serve fourteen months of his sentences in custody.  As the sentences for counts 9, 10 and 11 were ordered to be served concurrently with the sentences imposed for counts 1 to 8, no additional term of imprisonment will be served by him in relation to the former offences.  Those terms could have been made cumulative:  the offences were in respect of a different complainant and were committed at a different place and time to those the subject of counts 1 to 8.  The suspension of the sentences after fourteen months resulted in sentences which were far from excessive, let alone manifestly excessive.

[16]  I would order that Carmichael's application for leave to appeal against sentence be dismissed.

Armbruster's sentence

[17]  In Armbruster's case, it was submitted that a sentence of 12 months for count 2 rather than the 18 months imposed was appropriate and that it should have been suspended after four months to take into account the early plea of guilty, the applicant's limited criminal history and offending conduct which was more minor than Carmichael's.  It was submitted that the term of imprisonment for count 3 should also have been 12 months suspended after four months for generally the same reasons and in order for there to be appropriate parity with Carmichael's sentence, particularly having regard to Armbruster's lesser criminal history.

[18]  Armbruster had a more minor criminal history than Carmichael but neither of them had convictions for sexual offences.  Although it is true that only Carmichael's activities involved direct physical contact with the complainant, Armbruster was a much older man and was in a position of trust in respect of the young complainant whom he had taken into his care.  That gave rise to a circumstance of aggravation which increased the maximum penalty for count 2 from 14 years imprisonment to 20 years.[1]  It is undisputed also that Armbruster failed to protect the complainant.

[19]  It is arguable that, because of these points of distinction with Carmichael's offending the parity principle is of limited benefit to Armbruster.  I have concluded, however, that the disparity in the sentences imposed on the two applicants is capable of giving rise to "a justifiable sense of grievance"[2] and requires the reduction of Armbruster's sentences to a more proportionate level.

[20]  The culpability of Carmichael's conduct did not differ markedly from that of Armbruster.  Carmichael must have been aware that his conduct, the subject of count 9, was being videotaped.  He was thus complicit in that part of Armbruster's videotaping and he videotaped Armbruster and the complainant viewing and discussing the pornographic material.  The complainant was in Armbruster's care but Carmichael was, as the complainant put it, her "boyfriend."  The discrepancy in their ages gave rise to a reasonable expectation that Carmichael would afford her a degree of protection.  Carmichael's criminal history was far worse than Armbruster's and the overall criminality of the conduct for which he was sentenced was also worse.

[21]  I would allow Armbruster's application for leave to appeal and the appeal.  I would order that the sentences for counts 2 and 3 be set aside and that terms of imprisonment of 12 months suspended after six months with an operational period of three years be substituted.

[22]  ATKINSON J:  I agree with the orders proposed by Muir JA and with his Honour’s reasons.

[23] P LYONS J:  I have read the reasons for judgment of Muir JA and agree with the orders proposed by his Honour and his reasons.