R v Manser[2010] QCA 32

SUPREME COURT OF QUEENSLAND

1. CHIEF JUSTICE:  I have had the advantage of reading the reasons for judgment of Holmes JA.  I agree with the order proposed by Her Honour, and with her reasons.

2. HOLMES JA:  The applicant seeks leave to appeal against two concurrent sentences of four months imprisonment imposed on him when he pleaded guilty to two counts of indecent assault.  The grounds of the application are that the sentence imposed was manifestly excessive and that the learned sentencing judge failed to comply with s 13 of the Penalties and Sentences Act 1992 (Qld), by either reducing the sentences imposed to take into account the plea of guilty, or, alternatively, by indicating his reasons for not doing so.

3. The first complainant was a young man aged 17, who was employed by the applicant in his country freight business. The applicant took him on a work trip, which was expected only to take a day. During the drive, noticing the complainant adjusting his underpants, the applicant suggested that he remove them. Nothing followed from that suggestion. Heavy rain prevented their making the return journey that day. That evening, the applicant bought the complainant alcohol at a hotel before they returned to the truck to bed down for the night on a mattress in the back. As they lay side by side, the applicant twice put his hand on the upper body of the complainant, who pushed it away and moved to lie in the opposite direction from the applicant. He woke to find the applicant touching his penis underneath his shorts and underpants. He got out of the truck; nothing further happened; and he eventually went back to sleep in the truck.

4. The second complainant, a 16 year old, was instructed by his employer to drive the applicant to a regional city for an eye operation. After the applicant had had his surgery, they went to the motel where they were to stay overnight. Again, the applicant bought alcohol and shared it with the complainant. That night, after the two had watched some pornography on a laptop computer, the complainant went to one of the twin beds. The applicant lay down beside him, told him he would look better without a shirt on, and started to pull at the complainant’s T-shirt. The complainant pulled himself free, ripping the shirt, and went back to the computer. A couple of minutes later, the applicant approached him and grabbed his feet, pulling them upwards with one hand, while with the other he tried to pull the boy’s shorts down. He reached under the shorts, trying to undo the string on them, and took hold of the complainant’s testicles through his underwear. The complainant struggled and managed to make his way to the door of the room with the applicant still holding onto him, and at one stage being dragged behind him.

5. The applicant was interviewed by police a month later. He denied the allegation of the first complainant and, while admitting to having grabbed the testicles of the second complainant, denied having grabbed him by the feet. Both complainants were cross-examined in detail at the committal proceedings. The matter was listed for trial. The applicant subsequently indicated a willingness to plead guilty to the count involving the second complainant, but maintained his plea of not guilty in respect of the count concerning his employee until the day before his trial was to begin. He was 59 years old when he offended, and 61 years of age at sentence. He had no criminal history of any relevance. A psychologist who examined him found no evidence of any psychiatric or psychological disorder but noted that he had expressed a willingness to seek professional assistance to explore the causes of his actions. Two character references from friends of the applicant were tendered; they spoke of his reliability and trustworthiness and the absence of any concerns in his dealings with their teenaged children.

6. The learned judge began his sentencing remarks by saying that he approached such matters by giving credit to persons who, like the applicant, admitted the offending. Acceptance of responsibility and obtaining treatment augured well for community protection. His Honour referred to the age disparity between the applicant and the complainants; the breach of trust involved in each case; the facts that each complainant was encouraged to remove clothing and was supplied with alcohol; and the fact that in the second offence there was an element of violence against an unwilling victim. In the applicant’s favour, he noted his lack of relevant convictions and the references tendered on his behalf. He also noted what had been put to him about the applicant’s financial situation: that a prison term would prevent him from servicing loans on his transport equipment and result in the loss of his business, as well as making it difficult for him to obtain credit in the future. His Honour expressed himself unable, however, to regard the applicant’s situation as exceptional and referred to the need to impose imprisonment in order to deter others from similar conduct.

7. At first instance, counsel for the Crown relied on two previous decisions of this court, R v Jones^[1] and R v Ahmadyar^[2], to support a submission that six months imprisonment was warranted.  Here, both counsel adverted also to R v Sutton ^[3] and counsel for the applicant relied, as well, on R v Demmery^[4].  All four cases concerned applicants, who, as here, had no relevant previous criminal history.  R v Jones concerned a school bus driver convicted after a trial of sexual assault on a schoolgirl.  He took advantage of a situation in which he was left alone with the 16 year old complainant to squeeze her breasts and attempt to kiss her.  He sought leave to appeal against a sentence of four months imprisonment.  The court in upholding the sentence referred to the general proposition that an adult committing a sexual offence on a young person could expect imprisonment in the absence of exceptional circumstances; no such circumstances were demonstrated.

8. In R v Ahmadyar, the applicant pleaded guilty to three counts of indecent assault.  He had molested three young women, aged between 17 and 18 years, whom he had employed as sales assistants; in the first instance, kissing the complainant and touching her breasts; in the second, questioning the girl about her sexual experiences and then putting his arms around her from behind, pushing his penis against her; and in respect of the last complainant, trying to pull down her pants.  There was an unusual feature of that case:  the applicant had been in custody on remand for three and a half years over a period during which he was unfit for trial.  At first instance, he was sentenced to six months imprisonment, fully suspended with an operational period of 12 months, with, through an error, no credit given for the period already spent in custody.  This court set that sentence aside and imposed instead a sentence of six months imprisonment, with no suspension, and declared the time on remand as time already served. 

9. R v Sutton concerned an applicant convicted after a trial of indecent assault.  He was a 54 year old masseur who had undertaken to massage a 16 year old boy suffering from a sore neck.  He made the boy undress completely and in the course of a 15 minute massage talked to him about his sex life, touched his scrotum and masturbated him.  A sentence of two years imprisonment with a recommendation for eligibility for parole after four months was upheld, the court referring to the disparity in age between the applicant and the complainant, the vulnerability of the complainant, both physical and emotional, and the absence of remorse on the applicant’s part in relation to his abuse of a position of trust.  Reference was made to R v Jones for the proposition that sexual abuse of a minor would result in a term of imprisonment in the absence of exceptional circumstances.

10. In R v Demmery, the applicant had pleaded guilty to one count of indecent assault of a 16 year old girl and was sentenced to two years imprisonment, suspended after six months.  He was 27 years old and had attended a party at which the complainant was also present.  After the party she fell asleep in the back of the applicant’s utility.  While she was sleeping he pulled aside her underwear and masturbated and ejaculated over her vulval area.  The complainant was oblivious to the offence.  The applicant expressed remorse for his conduct.  After a review of the authorities this court concluded that the sentence imposed was manifestly excessive and substituted a sentence of 12 months imprisonment, suspended after the period of 25 days which the applicant had already served before being granted appeal bail.

11. The applicant argued that Jones and Ahmadyar should be distinguished because the former involved a conviction after a trial and the latter peculiar feature of the lengthy period on remand which, it was contended, affected the setting of the six month period of imprisonment on appeal.  Demmery showed that the sentence here was excessive, as did Sutton, which involved a more serious assault and a higher maximum penalty, but resulted in a non-parole period of the same length as the period of imprisonment here.  The applicant contended that his sentence equated to one of twelve months with parole after four months; that was a longer sentence than the six months which the prosecution had sought.

12. Demmery, however, involved a single complainant, one who was unaware of the assault as it happened, and an offender who was relatively close to his victim in age and social circumstances and, most importantly, was not in any position of trust.  Sutton involved a more serious offence, but one committed against a single complainant; and that applicant risked, in the event of breach, being required to serve the whole of a two year term.  I do not think that there is any reason to suppose that the sentence set in Ahmadyar reflects anything other than the court’s view that six months actual imprisonment was an appropriate sentence for the offending in that case, the level of which was not dissimilar to that here.

13. I do not, however, consider that Jones provides the Crown with a helpful comparative.  In that case, considerable emphasis was placed on the lack of exceptional circumstances, reflecting, in my respectful view, the fact that the court’s attention was not drawn to relevant provisions of the Penalties and Sentences Act.  A series of authorities (see, particularly, R v Quick; ex parte A-G (Qld)^[5]) has established that, in the absence of exceptional circumstances, imprisonment should follow where a sexual assault is committed upon a child.  But that proposition loses its force where (as in Jones) the complainant is aged 16 or over.  That is because s 9(2)(a) of the Penalties and Sentences Act requires a sentencing court to have regard to the principle that a sentence of imprisonment should only be imposed as a last resort.  Section 9(5)^[6] expressly excludes the application of that sub-section in cases of sexual offences against children under 16 years of age (as was the complainant in Quick); but it continues in effect (with exceptions in cases involving violence and physical harm) where the offence is committed against a young person aged 16 or older.

14. The Quick approach, it follows, cannot extend to offences of the latter kind.  A sentencing judge cannot simultaneously be guided by a principle that imprisonment is to be a last resort, on the one hand, and act on the premise that it is to be imposed in all but exceptional cases, on the other.  That conclusion, as a matter of statutory interpretation, is reinforced by the fact that the legislature chose, by amendment, to except from s 9(2)’s application sexual offences against children under the age of 16, but not older.  This is not, of course, to say that imprisonment cannot be imposed in such cases.  Nor does it mean that imprisonment was an inappropriate sentence in the present case, where the applicant did not have the benefit of the principle in s 9(2), because, at least in the case of the second complainant, violence was used in the commission of the offence.

15. The applicant did not base his application on any contention that the learned judge’s reference to exceptional circumstances produced error. Instead, he advanced the two grounds already identified, which are allied: in considering whether the sentence was manifestly excessive, it is necessary to consider whether it properly reflected the plea of guilty. The argument that the applicant’s sentence equated to a head sentence of 12 months and thus was higher than that advocated for by the prosecutor is not compelling. The plea in respect of the first complaint was a very late one, and the complainants had not been spared cross-examination; it by no means follows that a discount of two thirds should have followed. And, of course, the submission of counsel for the Crown was not binding on the learned judge; but in any case, that submission was for a term of six months without any suggestion of earlier release.

16. Some allowance was required for the plea of guilty; but given the fact that the sentence was four months, rather than the six contended for by the Crown, and given the learned judge’s specific reference to giving credit to the applicant for his acceptance of responsibility, there is no reason to suppose that that allowance was not made. As to whether the sentence was manifestly excessive, having regard to the fact that the approach to the complainant in each instance here was relatively protracted and persistent, continuing after it was made clear that it was unwelcome; to the disparity in age between the applicant and the complainants; to the abuse of trust involved in the offences; to the physical force used against the second complainant; and, to the limited extent that they are of assistance, the cases cited, I conclude that its imposition fell within a proper exercise of discretion.

17. I would dismiss the application for leave to appeal.

18. MUIR JA:  I agree with the reasons of Holmes JA and with the order she proposes.