SUPREME COURT OF QUEENSLAND

[1]  MUIR JA:  The applicant, who was between 55 and 58 years of age at the time of the offences, was convicted after pleas of guilty of 27 counts of indecent treatment of a child under 12 years of age and four counts of indecent treatment of a child under 16.  He was sentenced to five years imprisonment for each of counts 24, 25, 28 and 29 and to two years imprisonment for each of the other counts.  All terms of imprisonment were ordered to be served concurrently.  A parole eligibility date of 2 January 2010 was fixed; that being the date by which the applicant had served 18 months of his sentences.  The 427 days spent by the applicant in pre-sentence custody was declared to be imprisonment already served under the sentences.

[2]  The count 24 and 25 offences were committed in mid 2006 when the complainant girls, both aged 10, spent the night at the applicant's house.  In the course of playing some kind of "favour/reward game", when the girls were lying naked on the applicant's bed, he kissed one of them "on the vagina".  The other girl was reluctant to participate but was encouraged by her companion and the applicant perpetrated the same act on her.

[3]  The acts constituting the count 26 and 27 offences were perpetrated on an 11 year old complainant female between 23 April 2006 and 1 November 2006.  The complainant was lying on the applicant's bed beside the applicant and another young girl.  When the applicant agreed to drive the girls to a particular destination, the other young girl present encouraged the complainant to give the applicant a kiss.  The complainant kissed him on the lips and he "kissed the child back … he further caressed the child on the buttocks feeling her underpants as her skirt had ridden up".  He also caressed her on her genitals outside her clothes.

[4]  The count 28 and 29 offences were committed when, three to four weeks after the acts constituting counts 26 and 27, both girls came to the applicant's house.  When the girls were on his bed, he raised each of their skirts, pulled their underpants aside, and kissed both of them on their genitals.

[5]  The offences, the subject of counts 1 to 12 inclusive were committed in respect of the same complainant between 1 August 2005 and 31 January 2006 when she was aged either seven or eight.  The misconduct started with the applicant's running his hand up the inside of the complainant's leg to her groin, moved to the rubbing of "her pubic area" outside her clothes and ended with regular massaging of the child's genitals under her clothes.  Count 10 concerned the photographing of the naked complainant.

[6]  Counts 13 to 15 inclusive were perpetrated on the same complainant between 1 January 2006 and 31 December 2006 when she was aged either 11 or 12.  The offending acts were constituted by sexual "play", in which the applicant intentionally grabbed or touched the complainant on the crotch or pulled down her pants.  The offending conduct in counts 16 to 23 inclusive was the playing of games in which items of clothing would be removed.  This would lead to the applicant removing his pants and exposing his penis to the girls present.  The girls would reciprocate by removing their pants and exposing their genitals to the applicant.  Counts 30 and 31 were based on admissions made by the applicant that he permitted a complainant to touch his penis.

[7]  The applicant had a relatively minor criminal history which included no convictions for sexual offences.  Three of the complainants were sisters who lived near the applicant.  There was an early plea of guilty and the applicant cooperated with the authorities to the extent that after initially denying the allegations made against him, he contacted the police the following day and participated in an interview in which he made full admissions.

[8]  It was not contested at first instance that the applicant confessed to 31 of the offences before any complaint had been made in respect of 24 of them.

[9]  The applicant makes no complaint about the five and two year terms of his sentences but seeks an order that the unserved periods of his five year sentences be suspended upon his being placed on probation for three years for reasons that:

(a)The primary judge "failed to acknowledge the shortcomings in setting an eligibility date not compatible with the delivery of the required [sexual offender] programs"; and

(b)"In real terms, [the applicant] would not fully realise any of the remissions afforded to him" by the primary judge.

[10]  In a further outline of submissions, the applicant stated that although he was assessed in relation to sexual offenders' programs in January 2010, he had not been offered participation in any program.  He is concerned that, despite the evidence which shows that there is a low risk of his re-offending, he will obtain no benefit for his early pleas, cooperation and other matters, given a history of reluctance on the part of the parole board to grant applications for parole by sexual offenders who have not completed treatment programs considered appropriate by the parole board.  The applicant submits that the appropriate course for this Court to take is to suspend his five year sentences.  He further submits that unless such corrective action is taken, the incentive for persons like himself to cooperate with the administration of justice will be severely eroded.

[11]  The primary judge had before him a report of Dr Curtis, a psychiatrist, dated 3 September 2009.  In the report, Dr Curtis referred to the injuries sustained by the applicant in a motor vehicle accident which "caused him personal mobility problems [and] left him with chronic pain problems".  A cursory reference was made also to the applicant's "progressively escalating addiction to cannabis".  Dr Curtis was optimistic about the likely beneficial effects of treatment programs, including programs to assist the applicant "to remain clean of illicit psychoactive drugs".  He was of the view that the applicant "must complete the group sexual offender program … [and] then have long-term cognitive behavioural therapy counselling …".  His opinion was that these programs could be availed of within incarceration, within the public sector community correctional services, or through various private psychologists.  He thought that if such programs were participated in by the applicant, his "prognosis will prove to be exceptionally good".

[12]  The applicant's ability to access relevant programs, particularly so as to enable him to take advantage of a parole eligibility date to be set by the sentencing judge, was discussed by the prosecutor in the course of her submissions at first instance and, also, more extensively, by defence counsel in his submissions.  The prosecutor referred to the likelihood that the applicant would be selected to undertake "a New Directions program".  An assessment of the applicant's suitability for that program, which was anticipated to have a duration of between 13 and 22 weeks, was said to be likely to take two to three months.  The likely total time for both the assessment and the program was put at eight and a half months.  The prosecutor said that she was advised by Corrective Services that the applicant and others would be waitlisted, with their placement on the list depending on their respective parole eligibility dates.

[13]  Defence counsel expressed concern that the timings referred to by the prosecutor represented "the best possible timeframe".  He submitted that they were "by no means guaranteed" and that there was potential for any requirement that the applicant complete a course whilst in prison to interfere with the proper recognition of his early plea and confession.

[14]  Later in his submissions, defence counsel informed the sentencing judge that the results of the applicant's solicitor's enquiries of Corrective Services mirrored the information given to the prosecutor.  He emphasised that there were no guarantees that required courses could be completed within the eight and a half months predicted.  Defence counsel also submitted that it was a common experience that the parole board would not grant a parole order in respect of a sexual offender until he had completed the courses which the parole board considered appropriate.

[15]  Defence counsel submitted that the top of the sentencing range for the subject offences was five years imprisonment but that an appropriate sentence was four and a half years imprisonment for the most serious offences, suspended immediately, and for the other counts, four months imprisonment to be served concurrently, followed by three years probation with special conditions relating to psychiatric treatment and counselling.  Defence counsel urged that this regime be imposed so as to obviate the real risk that his client would not obtain the benefit of the extensive mitigating factors which he had identified.

[16]  In reply, the prosecutor informed the sentencing judge that her instructions were that the parole board takes into account the time spent in pre-sentence custody in determining whether the New Directions program "can be completed whilst in custody or whether there is not enough time and [whether] it would be better served in the community".  Asked by the sentencing judge whether the relevant programs would be best served in the community, the prosecutor replied in the affirmative.

[17]  The sentencing judge took into account the extensive submissions made to him concerning the tension between any parole eligibility date and a probable requirement that the applicant complete the New Directions program.  In that regard, he said:

"I further recommend to the Corrective Services Department that it takes into account the lengthy period of time you have spent in presentence custody, during which you have been ineligible to undertake the New Directions programs or any other programs which are recommended for sexual offending and consequently, I recommend that to the extent that it is practical and feasible you be allowed to complete such programs during the period of your parole.

I further direct that a copy of Dr Curtis' report be forwarded to the department for its assistance in the future so far as any programs or other rehabilitation aspects to which you may be subjected.

I further record that I have carefully considered all of the submissions made by defence counsel Mr Eberhardt, but I am not satisfied that the imposition of a suspended sentence for some offences, combined with a term of imprisonment on others, with a period of parole adequately represents an appropriate punishment for the number of offences you committed over a period extending for up to three years."

[18]  It is most unfortunate for the applicant that his inability to access programs whilst on presentence remand, followed by seeming tardiness on the part of Corrective Services, is likely to impact significantly on his release from custody.  What has happened in this case is suggestive of administrative deficiencies in urgent need of rectification.  I use the word "suggests" and "seeming" advisedly, as the applicant was self-represented and this Court was not provided with the evidence necessary to permit it to reach firm conclusions about the reasons why the applicant had not commenced a relevant program at the time of the hearing of the appeal.

[19]  The primary judge fixed a parole eligibility date of 2 January 2010, by which date the applicant would have served 18 months of his sentence.  That date was fixed so as to recognise the pre-sentence custody, the early guilty pleas and the applicant's full confessions.

[20]  It is clear from the sentencing remarks that the sentencing judge appreciated the existence of a risk that the applicant would not get some or all of the benefit of an early eligibility date.  His Honour, however, considered it inappropriate to structure the sentences in accordance with defence counsel's submissions because, to suspend the five year terms after 18 months, the point at which parole eligibility accrues under the sentences imposed, would not represent "an appropriate punishment".

[21]  Inherent in his decision to fix a parole eligibility date after 18 months of the sentence had been served was a determination by the primary judge that for the more serious offences, five year terms of imprisonment with 18 months of actual custody were appropriate.  There was no suggestion that it would be preferable if relevant programs were to be undertaken and completed whilst the applicant was in custody rather than on probation:  the opposite was the case.  The primary judge actually recommended that the applicant be allowed to complete the programs during his parole period "to the extent that it is practical and feasible".

[22]  In my respectful opinion, the primary judge erred in his finding that "the imposition of a suspended sentence for some offences, combined with a term of imprisonment on others, with a period of parole [did not] adequately represent(s) an appropriate punishment".  Such a sentence would have been more effective in securing the period of actual custody the primary judge considered appropriate than was the sentence the primary judge imposed.  His Honour, in considering whether to impose a sentencing regime which included suspended sentences, should have had regard to that consideration as well as matters including whether the suspending of some of the sentences may, or would, have interfered with or put at risk, appropriate assessment and supervision of the applicant, achievable by fixing a parole eligibility date and not ordering a suspended sentence.  The failure to do so in circumstances in which it was apparent that the applicant stood a substantial risk of not obtaining the benefit of an early recommendation caused the sentencing discretion to miscarry.

[23]  It thus falls to this Court to re-exercise the sentencing discretion.  Unfortunately, the sentencing option proposed by defence counsel, which was unopposed by the prosecution and had much to recommend it, is no longer available due to the time already served under the shorter sentence.

[24]  The psychiatric evidence indicates that, for the applicant's risk of recidivism to be reduced, the applicant should undertake appropriate courses and be subject to supervision.  But there are no means of providing such supervision or of ensuring that the applicant undertakes such courses and is appropriately supervised unless he remains in custody or is subjected to a parole order.  Because of s 160D of the Penalties and Sentences Act 1992 (Qld), this Court must fix a parole eligibility date and, for the reasons discussed earlier, the applicant may be denied the benefit of it.

[25]  This Court, in re-sentencing, may and, indeed should, have regard to the facts known to it at the time of re-sentencing if it is necessary to do so to avoid injustice.[1]  It is appropriate to have regard to the fact that the applicant has already spent more time in custody than the primary judge anticipated and that without adjustment to the longer terms of imprisonment, he may be at risk of serving all or a substantial part of the five year terms of imprisonment in actual custody.  With those matters in mind and having regard to the desirability of the applicant's completing appropriate programs, I would vary the sentences in respect of counts 24, 25, 28 and 29 by reducing them to three years and not disturbing the parole eligibility dates.

[26]  I would therefore order that the application for leave to appeal against sentence be allowed and that the appeal be allowed, but only to the extent that for counts 24, 25, 28 and 29, three year terms of imprisonment be substituted for the five year terms.

[27]  FRASER JA:  I have had the advantage of reading the reasons for judgment of Muir JA.  I agree with those reasons and with the orders proposed by his Honour.

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