SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: The applicant pleaded guilty to indecent treatment of a child under 12 (count 1), possessing child exploitation material (count 2) and using a carriage service to access child pornography material (count 3).  He was sentenced to two years imprisonment on count 1 and 12 months imprisonment on count 2, with an order that he be eligible for parole on 9 August 2010, that is, after eight months.  On count 3, he was sentenced under s 20(1)(b) Crimes Act 1914 (Cth) to 12 months imprisonment with release after four months upon entering into a recognizance of $1,000 conditioned that he be of good behaviour for a period of four years.  He applies for leave to appeal against his sentence contending that it is manifestly excessive.

Antecedents

[2] The applicant was 52 and 53 years old at the time of his offending and 54 at sentence.  Although he had not previously been sentenced to actual imprisonment, he had a concerning and relevant criminal history.  In 1989, he was fined for minor offences of dishonesty.  Of much more significance, was his appearance in the Ipswich District Court on 25 January 1996 for five counts of indecently dealing with a child under 12 years and one count of indecent dealing with a child under 12 years with a circumstance of aggravation.  On each of those charges, he was sentenced to six months imprisonment, wholly suspended for a period of two years.  He was dealt with for a minor offence of dishonesty in 2008 and for breach of bail in 2009 and again received non-custodial sentences. 

[3] The circumstances of his prior indecent dealings were as follows.  The complainants were the two six and seven year old daughters of his de facto partner.  He undressed one complainant, rubbed her belly and her legs, touched her on her vagina but stopped at her request.  On another occasion when the child was in his care, she came into his bedroom and lay next to him.  They cuddled.  He asked her if she would like to take off her pants.  She did not answer and he took her clothes off.  He took off his underpants and they continued to cuddle.  He touched the child around the bottom and waist.  The child recalled him having an erection and looking at her in an undressed state.  The child became restless, dressed herself and walked out.  On another occasion when the child was standing at the kitchen sink, he came up behind her, put his hands on her back and bottom, and rubbed her bottom inside her underpants.  The child became upset and he desisted. 

[4] The remaining offences concerned the other child.  The applicant tickled her and then tried to remove her underpants.  She told him to stop and he did.  On another occasion when the child was in the applicant's bed cuddling him, he pulled off her underpants.  She told him to stop.  He gave her back her underpants and told her to get ready for school.  On another occasion, the child was lying down in her bedroom wearing a nightgown and underpants.  The applicant put two hands down the front of her pants and touched her on the vagina for about 5 to 10 seconds.  He stopped when the child told him to leave her alone.  The final count involved the applicant putting his hands down the girl's underpants whilst she was sitting on his lap and operating the computer.  He rubbed her legs and left his hand on her crotch area for about 10 seconds. 

[5] In sentencing the applicant, the judge did "not think it is at all likely or probable that [the applicant]…will ever be before a Court again". 

Prosecutor's submissions at sentence

[6] The prosecutor at sentence tendered a schedule of the facts of the present offences.  The complainant child was seven years old.  She resided with her mother and her brother, next door to the applicant.  On 8 February 2009, the girl and her brother were at the applicant's home playing on his computer.  The mother called to her son to help her catch a bird which had flown into her house.  The boy returned home.  After he and his mother caught the bird, they took it to show the girl and the applicant.  The mother approached the lounge room and saw the applicant sitting on a low stool with her daughter standing between his legs.  He was holding her nightie up around her waist and her underpants were rolled down to her thighs.  The mother slapped him and swore at him.  The applicant stated, "sorry, it's inappropriate."  The mother left with her children and contacted police.

[7] Police interviewed the girl later that day.  She said she was helping the applicant fix his television when he began to play with her "front part and pulling [her] undies down".  She said he "was playing with my front part".  She told him to stop and she kept fixing the television, but "then he started doing it again".  Her mother then walked in. 

[8] The prosecution accepted a plea of guilty on the basis that it could not be said precisely what the child meant by "her 'front part', other than it is contained within her undies, and may have been limited to the top part of her undies."

[9] When the applicant was interviewed by police, he said he was sitting on a coffee table when the child stood in front of him with her back towards him.  At first he had his hands around her waist.  He then lifted her nightie and pulled down her pants because he wanted to look at her bottom.  These events constituted count 1.

[10]  Later that day, police conducted a search of the applicant's residence and seized items, including a desktop computer tower.  The computer was subsequently examined and found to contain 339 child exploitation images in a temporary internet folder.  The images were not saved images but were located on the hard drive as a result of the applicant's viewing of various websites.  Forensic experts also found an additional 46 child exploitation images on the applicant's computer which were recovered after being deleted.  These images were of pre-pubescent girls posing naked and semi-naked.  Some showed penile and digital penetration of the girls.  Other showed the girls giving men oral sex.  The applicant participated in a police record of interview and admitted accessing various websites over the internet and viewing the images to "satisfy his curiosity".  These circumstances constituted counts 2 and 3.

[11]  The prosecutor tendered a victim impact statement from the child's mother.  The mother explained that when she moved next to the applicant she had been a victim of domestic violence and was on medication for depression.  She was very protective of her children.  The applicant was a TAFE teacher and she thought he was a "'safe' person".  For that reason, she became friendly with him.  She discussed with him her past problems of domestic violence and how her eldest daughter had been molested 12 years earlier by a family member.  This background made her discovery of his betrayal in the commission of these offences all the more shocking.  She has since had counselling and is again on medication for depression.  Her daughter is now very confused and is no longer the happy outgoing little girl she once was.  She clings to her mother and fights with her brother.  The child's emotional wellbeing has been compromised by this trauma.  The mother's life and the lives of both the complainant girl and her brother have been adversely impacted by the offending.

[12]  The prosecutor contended that a sentence of 12 months imprisonment with a period of actual custody would be appropriate but for the applicant's prior like offending.  The applicant had cooperated with the administration of justice.  The committal proceedings were conducted by way of hand-up witness statements without cross-examination and the applicant pleaded guilty at committal.  It was an early plea.  But, despite these mitigating features, there was a high degree of similarity between the present offences and the earlier offences, in circumstances where he knew the mother and the girl were vulnerable.  This meant that a sentence of 18 months imprisonment without suspension but with parole eligibility, perhaps as early as after six months, was appropriate.  Similar or slightly lesser concurrent sentences should be imposed in respect of counts 2 and 3.  The applicant will be a reporting offender under the Child Protection (Offender Reporting) Act 2004 (Qld) for the rest of his life.  The prosecutor submitted that this factor did not, however, support the imposition of a suspended sentence rather than one involving supervision under a parole order; this applicant clearly needed supervision.

Defence counsel submissions at sentence

[13]  Defence counsel made the following submissions.  She did not oppose an order for forfeiture of the applicant's seized computer equipment.  She tendered a psychological report prepared by Dr Donna Eshuys, a psychologist who works in relapse prevention strategies and does therapy with adults who have committed sexual offences.  Dr Eshuys had read the relevant background material to the applicant's offending and interviewed him over nine individual one hour sessions between April and October 2009.  She also administered a number of psychometric assessment tools.  Her report was thorough, considered and objective.  She noted that during his treatment the applicant had shown insight about his current functioning and past behaviours and was able to identify coping strategies to assist him in avoiding re-offending.  He indicated remorse for his victim and hoped that she would not be scarred by his crime.  He also expressed remorse for his family and their suffering at his hands.  He has a small but stable social support network including his parents and siblings and work colleagues.  She noted his prior criminal history 13 years earlier.  She considered that he was at medium risk on statistical probabilities of committing future non-contact offences.  There was a 12 per cent likelihood of him committing a new sexual offence within five years; a 23 per cent probability of re-offending within seven years; and a 39 per cent probability of re-offending over 10 years.  She concluded by noting that:

"[t]o decrease [the applicant's] likelihood of re-offending with a contact offence and to assist him in being able to acknowledge that his internet crime was a not a victimless one, further relapse prevention training is crucial for [the applicant's] long term stability and promotion of nonoffending behaviour."

[14]  Defence counsel submitted that the appropriate effective sentence for all three offences was 12 months imprisonment suspended after three months.  She emphasised that the applicant was in contact with his 31 year old son and played a significant role in the lives of his elderly parents with whom he had lived since the commission of this offence.  She tendered a letter from the applicant's mother which confirmed these matters.  Defence counsel frankly conceded that although the mother was aware of counts 2 and 3, she was not aware that the applicant had been charged with count 1. 

The judge's sentencing remarks

[15]  After referring to the applicant's early guilty plea and the psychologist's report, the judge noted that the schedule of facts said that the applicant "played with the front part of [the complainant's] genitalia.  [He] touched her genitalia.  She told [him] to stop but [he] kept going."

[16]  The judge noted that "the children of Queensland must be protected from [the applicant].  Not just for 2 months, not just for 10 months but forever.  [The applicant] can't be trusted.  And I am going to impose a sentence so that if [the applicant] reoffend[s] in the next 5 years [he] will be looking at a very long term of imprisonment."

[17]  The judge noted the "horrendous" effect on the child.  The judge was especially concerned at the applicant's previous convictions for like offences and noted the submissions as to the appropriate sentence made by the prosecutor and defence counsel.  Although the prosecutor had suggested a period of imprisonment of 18 months, the judge concluded that such a sentence "does not reflect [the applicant's] criminality or the danger that [he is] to the community."  A sentence of two years imprisonment was appropriate.   An early parole eligibility date should be fixed at one-third of the sentence to reflect the applicant's early plea of guilty and cooperation with the authorities.  In respect of count 3, the judge ordered that the applicant be released after serving four months imprisonment on a $1,000 recognizance to be of good behaviour for four years.

The submissions in this application

[18]  Counsel for the applicant made the following submissions.  Despite the applicant's criminal history, the sentence is manifestly excessive because his offending was relatively minor and there were many factors in mitigation.  The prosecutor at sentence submitted that 18 months imprisonment was appropriate with parole eligibility after six months.  The judge imposed a significantly heavier sentence.  By way of comparable decisions, counsel for the applicant emphasised R v M[1] and RvB[2] as supporting an effective sentence in this case of 12 to 18 months imprisonment with suspension or parole eligibility fixed after one-third to recognise the mitigating factors, particularly the applicant's cooperation.  She contended that whilst the protection of the community was a relevant factor, the sentencing judge placed too much weight on this consideration and imposed a sentence disproportionate to the gravity of the offence committed: cf Veen v The Queen [No 2].[3]  The applicant's offending was an isolated, opportunistic and unpremeditated incident involving touching at the lower end of the scale of seriousness and without any violence or threats.  The application for leave to appeal should be granted, the appeal allowed and a sentence of 12 months imprisonment suspended after three months substituted.

[19]  The respondent emphasised the applicant's prior criminal history and that, as a friend and family confidant, he was aware that the complainant's older sister had been sexually abused.  The complainant has suffered as a result of the applicant's offending.  Despite the mitigating features, the sentence imposed was not excessive.  The authorities relied on by the applicant actually support the sentence imposed, because in most of those cases the offenders had no prior convictions for sexual offences.  In support of the sentence imposed, counsel for the respondent relied on Rv Schirmer[4] and R v SAQ.[5]

Conclusion

[20]  The judge overstated the applicant's offending.  The schedule of facts made clear that the applicant's touching of the little girl "may have been limited to the top part of her undies", not, as the sentencing judge said, "her genitalia".  The acts constituting the offending were at the lower end of the range of seriousness for this offence.  The applicant's offending was nevertheless serious.  It was cynically opportunistic.  He well understood the child's vulnerable family situation and exploited it.  His offending was aggravated by his criminal history for like offences which, as the primary judge recognised, placed special focus in the sentencing process on the need to protect children from his risk of re-offending: see Penalties and Sentences Act 1992 (Qld), s 9(6)(d).  The maximum penalty for count 1 was 20 years imprisonment.  The applicant's conduct was compounded by his commission of counts 2 and 3 which carried maximum terms of imprisonment of five and 10 years respectively.  The judge was well entitled to conclude that the interests of the community and the applicant would be best served by making him subject to a lengthy good behaviour bond.  The effective head sentence for the totality of the applicant's offending (two years imprisonment) was within range: cf Rv Schirmer[6] and R v SAQ.[7]  The judge understandably considered that when the applicant is released into the community, the community's interests, as well as the applicant's, would be best served by a supervised parole order rather than an unsupervised suspended term of imprisonment.  A parole eligibility date set after serving one-third of the two year sentence, four months earlier than otherwise, sufficiently recognised the mitigating factors.  The sentences imposed were not manifestly excessive.

[21]  The application for leave to appeal against sentence must be refused.

[22]  KEANE JA: I agree with the President.

[23]  CHESTERMAN JA: I also agree with the President.