SUPREME COURT OF QUEENSLAND

[1]  FRASER JA:  I agree with White JA’s reasons for the orders made on 21 June 2011.

[2]  WHITE JA:  On 21 June 2011 I joined in the following orders:

“1.Grant the application for leave to appeal.

2.Allow the appeal.

3.Vary each of the sentences imposed in the District Court by:

(a)Substituting a sentence of 9 months imprisonment in lieu of 15 months imprisonment;

(b)Ordering that the sentence be suspended forthwith in lieu of the suspension after a period of 5 months imprisonment; and

(c)Substituting 18 months for the period of 3 years as the period within which the applicant must not commit another offence punishable by imprisonment to avoid being dealt with for the suspended term of imprisonment.”

These are my reasons for doing so.

[3] On 27 April 2011 the applicant pleaded guilty to 18 counts[1] of indecent treatment of a child under 16 on one indictment (“the 19 count indictment”) and three counts of indecent treatment of a child under 16 on a second indictment (“the three count indictment”).  The dates of the offending on the 19 count indictment are between 1 January 2007 and 26 August 2009, although the preponderance of the impugned conduct occurred in May/June 2009, and on 5 and 6 June 2009 on the three count indictment.  The nine complainants (all girls) were aged between eight and 12. 

[4] Sentence was adjourned to enable a report to be obtained from the psychologist who had been treating the applicant. 

[5] On 13 May 2011 the applicant was sentenced by a different District Court judge to 15 months imprisonment suspended after five months with an operational period of three years in respect of each of the counts, all to be served concurrently.  He was, accordingly, to be released on 13 October 2011.

[6] The applicant sought leave to appeal against the sentences imposed on the grounds that they are manifestly excessive; that the sentencing judge gave excessive weight to the number of offences and complainants and insufficient weight to the nature of the offending and other matters of mitigation.  The applicant was born on 9 September 1962 and was aged between 44 and 46 at the time of the offences and 48 at the time of sentence.  He had no previous convictions.  He was in good employment and supported his partner, their child and her two children.

[7] The sentence proceeded on the basis of an agreed schedule of facts.  The applicant lived with his partner and children across the road from the complainant in counts one, two and five on the 19 count indictment.  She was then aged 11 and would regularly visit the applicant’s home as she had a close relationship with the applicant’s partner.  There was a baby in the house whom she enjoyed visiting.  The applicant’s family also had a swimming pool which was an added attraction.  Sometimes the complainant would take her friends with her to visit and they were the other complainants on that indictment.

[8] In June 2009 the complainant in count one on the three count indictment and her family moved into the applicant’s home.  The complainant in the other two counts was her friend. 

[9] The offences involved the applicant allowing his penis to be seen by the complainants because of the nature of the clothing he chose to wear, and how he wore it.  On one occasion he wore only a dressing gown and on another occasion he wore only a towel.  On all other occasions he wore short, loose-legged shorts with no underwear.  He facilitated the exposure by positioning himself in particular ways so that his penis was exposed.  At no time did he handle his penis to position it nor was there any suggestion of masturbation or other conduct.  There was no physical contact between the applicant and the complainants associated with the exposure.  In respect of one of the counts, count five on the 19 count indictment, the complainant, according to the statement of facts, “could see the accused’s penis and said that it was ‘stiff or something’” but nothing was made of this at sentence.[2]  Apart from this ambiguous statement there was no suggestion that the complainants saw the applicant’s penis in an erect state.  Some of the counts related to the same event but seen by more than one complainant.  On two occasions a complainant saw the applicant’s penis hanging out through the open button of his board shorts under water when she dived in the swimming pool.  His penis was back inside his shorts when he left the pool. 

[10]  The girl, the subject of counts one, two and five on the 19 count indictment, was taken to the police on 15 June 2009 after she had spoken to her mother about what she had seen.  Police contacted some of the other girls and, as a result, nine ultimately made disclosures.  In a pretext call by the complainant’s mother the applicant admitted he had a problem and was attending to it.  The police investigations took some time and the applicant was not charged immediately after complaints were made. 

[11]  Prior to any complaint being made about the applicant the applicant had consulted his general practitioner concerned about his deviant sexual conduct in exposing himself.  Prior to doing so he had had four sessions with a psychologist before he was referred by his general practitioner on 9 June 2009 to Dr Lars Madsen, a clinical and forensic psychologist with expertise in treating adult sex offenders with whom he undertook 19 sessions of treatment and one session for the purposes of preparing the report for the benefit of the sentencing court. 

[12]  The applicant was well advanced in self-motivated rehabilitation before he became aware, on 3 February 2010, that complaints had been made and that he was to be charged with these offences. 

[13]  The prosecution tendered victim impact statements from four of the girls who wrote, some two years after these events, that they still experienced intrusive thoughts and distress about what they had seen. 

[14]  Dr Madsen, in a lengthy and careful report, described the applicant as meeting the criteria in DSM-IV-R for the deviant sexual condition of exhibitionism (now in remission) and demonstrated a non-exclusive sexual interest in young female children.  He noted that the strength and intensity of that interest appeared to be at the moderate level.  These tendencies had been present from the applicant’s mid-twenties when he struggled with urges to expose himself in scenarios and circumstances where opportunities for doing so presented themselves.  Dr Madsen explained that an important part of the therapy involved specifically targeting deviant sexual interest with a range of behavioural and cognitive avoidance techniques to avoid and deal with specific risk scenarios.  At the time of sentence, after nearly two years of therapy, Dr Madsen reported that the applicant’s treatment was in the maintenance phase.

[15]  Dr Madsen carried out a detailed risk assessment explaining the underlying nature of those assessments and their application to the applicant.  He identified the applicant’s risk of re-offending as moderate/low but noted that that range over-estimated the risk for sexual violence “at present”:[3]

“[The applicant] has verbalised a good understanding of the concerns related to his sexual offending behaviour.  He was able to identify a range of attitudes and justifications that he had utilised during his offending that facilitated his behaviour (i.e. it’s not hurting anyone).  Throughout my evaluation he did not verbalise any beliefs, attitudes or values that could be viewed as minimising, justifying or rationalising his offending behaviour.”[4]

He noted, further, that the applicant’s social and emotional functioning was sound.

“He has described feasible plans for the future, bearing in mind his present situation, and described a preparedness to continue to gain professional assistance and support.  Finally, it is noteworthy that he has sought independent psychological treatment which he has paid for himself.”[5]

Dr Madsen concluded:[6]

“[The applicant’s] risk of engaging in similar behaviour in the future appears to be moderate low, with his risk increasing with certain factors occurring.  Notably, he has several strengths that may assist him to reduce his ongoing risk of recidivism.  He accepts responsibility for his behaviour, and does have support from his partner.  Furthermore, he appears to be reasonably pro-social and does not display broader underlying temperamental traits that could predispose him to criminal behaviour (i.e. psychopathy).  He has full time work, and appears to be a reliable and conscientious employee.  It is also notable that [the applicant] has sought and paid for psychological treatment independently, and he has verbalised a preparedness to continue to engage in treatment.”

[16]  If the applicant were to receive a custodial sentence Dr Madsen postulated it would be “likely to damage the important protective factors currently present in his life.”[7]  He noted that it was important for the applicant to continue to engage in specific individual therapy addressing the identified treatment targets.

[17]  When the charges were brought, the consequences for the applicant and his family were financially serious.  The public shaming which ensued meant that he had to sell his house and leave the area with consequent financial loss on his estimate because of the prevailing market conditions.  He lost his job which was within several weeks of completion which would have entitled him to employer contributions from a redundancy fund of approximately $15,000.  He was the sole breadwinner for his family. 

[18]  Before his Honour neither counsel was able to provide any comparable sentences.  The prosecutor noted that although there had been a committal hearing the cross-examination was of adults and it appears related to matters that the Crown no longer pursued.  The pleas were accepted as timely. 

[19]  The prosecutor sought a term of actual imprisonment of 12 to 18 months and, although the offending was at the lower end of the range, because of the persistence of the offending and the number of complainants, 18 months was appropriate. 

[20]  Defence counsel contended that because of the strong mitigating factors, particularly that the applicant had sought treatment for his condition well before there was any suggestion of complaint being made; the positive aspects of the two year period of treatment; and that his condition was in remission, an appropriate penalty would be one which permitted the applicant to remain in the community.  If he were to be sentenced to a term of imprisonment, it should be wholly suspended, or, alternatively, he should be sentenced to only a brief period of imprisonment.

The sentencing judge’s approach

[21]  His Honour noted the mitigating features - the applicant’s want of previous criminal history; no “actual touching of the children”, and no acts of masturbation; that the applicant had sought appropriate medical treatment prior to the police becoming involved; and that there was a low to moderate risk of recidivism.  On the other hand, his Honour said he was satisfied from the four victim impact statements that the applicant’s actions had had a significant negative impact on “these young girls”; that the acts were persistent; that they occurred over a period of two and a half years; that children must be protected; and “unless there are special circumstances an adult who commits a sexual offence against a child should go to gaol, meaning actual gaol time”.  His Honour referred to R v Quick; ex parte A-G (Qld)[8], recognising that it was a much more serious case of sexual offending but finding some guidance in a sentence of 18 months, suspended after three months imposed on an Attorney-General’s appeal.

Submissions on appeal

[22]  Mr S Courtney, who appeared for the applicant below as well as on this appeal, contended that his Honour erred in placing too much weight on the number of complainants and insufficient weight on matters personal to the applicant, particularly his successful rehabilitation.  He contended for a sentence of nine months to be suspended as at hearing the date of the application.

[23]  Mr M Copley SC, who appeared for the respondent, did not disagree that if this Court were to accept that the sentencing judge’s discretion miscarried in the manner submitted for by the applicant, that the sentence should be varied as proposed by Mr Courtney. 

Discussion

[24]  Section 9(5) of the Penalties and Sentences Act 1992 provides:

“(5)Also, in sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years –

(a)the principles mentioned in subsection (2)(a) do not apply[9]; and

(b)the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.”

Section 9(6) provides:

“(6)In sentencing an offender to whom subsection (5) applies, the court must have regard primarily to –

(a)the effect of the offence on the child; and

(b)the age of the child; and

(c)the nature of the offence, including, for example, any physical harm or the threat of physical harm to the child or another; and

(d)the need to protect the child, or other children, from the risk of the offender reoffending; and

(e)the need to deter similar behaviour by other offenders  to protect children; and

(f)the prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community; and

(g)the offender’s antecedents, age and character; and

(h)any remorse of lack of remorse of the offender; and

(i)any medical, psychiatric, prison or other relevant report relating to the offender; and

(j)anything else about the safety of children under 16 the sentencing court considers relevant.”

[25]  The statutory requirement that an offence of a sexual nature committed in relation to a child must be punished by an actual term of imprisonment in the absence of exceptional circumstances inserted into the Penalties and Sentences Act in November 2010 had previously found its expression in curial statements such as those of the Chief Justice in Quick.[10]  The debate in the cases regularly concerned facts and circumstances sufficient to constitute “exceptional” circumstances.  Rehabilitation, particularly where successfully completed, has been held to be a circumstance which will “attract mercy rather than adherence to rigid standards of punishment”[11] and, of course, prospects of rehabilitation are one of the matters which s 9(6) requires the sentencing court to have regard.

[26]  I would venture to suggest that it is, generally speaking, very unusual in cases of deviant sexual offending for those offenders to have self-directed insight that they have a problem which requires professional assistance and to seek that assistance prior to the intervention of the authorities.  Perhaps, almost as unusual, there has been no attempt by this applicant to justify, minimise or rationalise the offending behaviour to the psychologist.  The genuineness of the applicant’s remorse must surely be demonstrated by him undertaking, diligently, some 19 sessions of treatment at his own expense when he had only modest financial means and much of that treatment undertaken prior to detection.  The community, acting through the courts, recognises that persons with deviant sexual interests should be encouraged to acknowledge their need for treatment, to seek it and to undertake it and to recognise that initiative in the punishment imposed.  A rehabilitated offender will be a safer prospect than one who is merely imprisoned.  The sentencing principles of deterrence and rehabilitation can sit comfortably together.

[27]  The sentencing judge, in my view, made three errors.  He made mention of persistent offending over two and a half years when the reality was that most of the offending occurred in the concentrated period May/June 2009.  It might be supposed that this increase in activity led the applicant to seek help.  The second error was the failure to appreciate, appropriately, the exceptional nature of the applicant’s initiative in seeking and successfully obtaining treatment prior to being aware that the authorities were involved.  The third error lay in settling on a sentence of 15 months for conduct at a low level of sexual offending.  The facts in Quick did not offer any assistance as that case concerned a school teacher who abused his friendly relationship with a 14 year old former female pupil to drive her to a remote location and sexually assault her by handling and kissing her breasts, photographing her without her consent, and eventually, threatening her with harm if she did not lie to protect him after investigations commenced. 

[28]  Even had 15 months been an appropriate head sentence, suspension after five months did no more than reflect the plea of guilty apparently making little allowance for the applicant’s successful rehabilitation.  Those errors required the application for leave to appeal against sentence to be granted and the applicant to be re-sentenced in the manner reflected in the orders made on 21 June 2011.

[29]  MULLINS J:  I agree with White JA.