R v CBI[2013] QCA 186

SUPREME COURT OF QUEENSLAND

[1] FRASER JA: On 20 February 2013 the applicant was found guilty by a jury and convicted of two offences of unlawfully and indecently dealing with a child under the age of 16 years, with the circumstances of aggravation that the child was under 12 years.  He was sentenced to concurrent terms of imprisonment for 12 months on the first count and 18 months on the second count.  A parole eligibility date was fixed on 20 November 2013, after the applicant will have served nine months of the effective 18 month term of imprisonment.  The applicant has applied for leave to appeal against sentence on the ground that the sentence was manifestly excessive.

Circumstances of the offences and the applicant’s personal circumstances

[2] The complainant was eight years old when the applicant committed the offences and 11 years old at the time of the trial.  Her mother was in a relationship with the applicant’s son; the complainant referred to the applicant as “Pop” or “Poppy”.  In the 2010 Christmas holidays the complainant and her sister stayed for a couple of nights at the farm occupied by the applicant and his wife.  In March 2011 the complainant told her mother of the applicant’s offending conduct.

[3] On the first occasion, the complainant visited the applicant’s bedroom and lay on top of his bed.  The applicant manipulated the complainant to go under the bed covers, lay on top of her, and, in the course of tickling her, “scrunched” her in her clothes over her genital area.  Counsel for the applicant and the respondent agreed that, taking into account the complainant’s hand gestures, her evidence conveyed that the applicant touched the complainant whilst he was flexing his hand.  The complainant found this partly painful but she was also laughing at times.  The applicant stopped when the complainant’s sister came into the room and attempted to pull the applicant off the complainant.  The second offence was probably committed later in the same week.  The applicant’s wife had taken the complainant’s sister shopping, leaving the applicant alone with the complainant.  He took her from the house to a utility vehicle, laid her down in the vehicle and pulled her underwear down.  He then touched her in the genital area in the same manner as in the first offence, this time on her skin rather than on her clothes.

[4] The applicant was 66 and 67 years old when he offended and 69 years old when he was sentenced, with four adult children.  He had worked on the farm for 36 years and had no criminal history.

Sentencing remarks

[5] The prosecution referred the sentencing judge to R v Moffat [2003] QCA 95 and R v Quick [2006] QCA 477.  Defence counsel accepted that there were no exceptional circumstances of the kind which were required to avoid a custodial sentence.  Defence counsel argued that imprisonment for 18 months was too high because the applicant was elderly and that the appropriate sentence was 12 months imprisonment to be suspended after the applicant had served six months.

[6] The sentencing judge found that it was likely that the complainant had become withdrawn as a result of the offending.  The sentencing judge also accepted that the applicant’s offending impacted upon the complainant’s mother and oldest brother, who had become angry and hurt at the applicant’s conduct and betrayal of their trust, and that the complainant’s mother’s relationship with the applicant’s son had broken up.  The sentencing judge referred to the aggravating features relied upon by the prosecution that the applicant had shown no remorse, that count 2 was in part described by the complainant as involving “skin on skin”, and that the complainant was only eight years old.  The sentencing judge found that the applicant was in good health for a 69 year old man but that, to some extent, a term of imprisonment would be more difficult for the applicant because of his age.

[7] The sentencing judge characterised the applicant’s offences as “opportunistic” and found that this was relevant to the question whether a parole eligibility date should be fixed or imprisonment should be partly suspended.  He concluded that there was too little information about the likelihood of the applicant re-offending to determine that it was an appropriate case for suspension rather than parole eligibility.

Consideration

[8] In this Court the applicant argued that R v Quick was a significantly worse case of corruptive, manipulative, persistent, and threatening behaviour, yet the head sentence imposed in that case was the same as here, 18 months imprisonment, and upon appeal that imprisonment was ordered to be suspended after the offender had served three months.  The applicant submitted that R v Moffat and R v M [2003] QCA 556 demonstrated that the appropriate sentence in this case was imprisonment for six months for count 1, imprisonment for between 12 and 15 months on count 2, and an order that the imprisonment be suspended after the applicant had served six months in custody for an operational period of two years.  The applicant argued that suspension rather than parole eligibility was appropriate because, having regard to the applicant’s age, absence of previous convictions, and long work history on his farm, there was no reason to suspect that he would offend again; in those circumstances it was appropriate that the applicant not be burdened by the uncertainty inherent in a parole eligibility date.  The preferable result was submitted to involve certainty of release with the threat of the suspended imprisonment hanging over the applicant.

[9] Section 9(5)(a) of the Penalties and Sentences Act 1992 (Qld) provides that the principles mentioned in s 9(2)(a) (that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable) do not apply in sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years.  Section 9(6) lists matters to which the court “must have regard primarily” in sentencing an offender to whom ss (5) applies:

“(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 or 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.”

[10] A provision in the form of s 9(5)(a) was added to the Penalties and Sentences Act 1992 as s 9(5) by the Sexual Offences (Protection of Children) Amendment Act 2003.[1]  Section 9(6) was introduced by the same Act.[2]  Section 9(5)(b) provides that “in sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years…the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.”  That provision was introduced by s 5 of the Penalties and Sentences (Sentencing Advisory Council) Amendment Act 2010, which commenced on 26 November 2010.[3]

[11] R v Quick was not a comparable sentencing decision, but the respondent correctly submitted that it was cited by the prosecutor only for the observations that those who indecently deal with children should be sent to jail other than in exceptional circumstances and that the combination of factors in that case (an early plea, no prior convictions, remorse, and the unlikelihood of further offending) did not constitute exceptional circumstances.  Since the topic is now regulated by s 9(5)(b) of the Penalties and Sentences Act 1992 (Qld),[4] it is that provision which must be applied.[5]  The applicant did not submit that there were “exceptional circumstances” within the meaning of s 9(5)(b) such as to justify a non-custodial sentence.

[12] In Moffat, the sentence of imprisonment of 12 months was adjusted on appeal only by the addition of an order suspending the sentence for an operational period of two years after the offender had served six months imprisonment.  In that case the offender induced the complainant to go inside his caravan.  He indecently touched her including on clothing on top of her vagina.  He lifted up her skirt and pulled her pants down but the complainant managed to stop him from proceeding further.  The offender then walked with the complainant back to her house.  The court considered that there was no reason that the applicant, who was 54 years of age at sentence and had no previous convictions and a good work record, would re-offend.  The complainant was shocked and upset but there was no evidence of any other adverse consequence.  The offender was sentenced on the basis that he only touched the complainant’s clothing outside her vagina, he did not persevere with what may have been an attempt to do more, and the offence was impulsive rather than planned.  Although the sentencing judge regarded the applicant’s offences as “opportunistic”, this is a more serious case than Moffat, particularly because the applicant committed two offences and in the second offence he took the complainant from the house to his vehicle and indecently touched her after removing her clothes.

[13] In M, an application for leave to appeal against the effective sentence of imprisonment of 18 months suspended after four months for an operational period of three years was refused on the ground that the sentence was not manifestly excessive.  That offender pleaded guilty to three counts of indecently treating a child with the circumstance of aggravation that the child was under the age of 12.  On the first occasion the offender fondled a 10 year old boy’s genitals and committed an act of fellatio.  A year later he indecently touched an eight year old girl.  A few months later he again indecently touched that girl, who was then nine years of age, on the outside of her clothing.  There was no evidence that the offences had any lasting adverse effects on the children, although experience suggested that there might be some such affect in later years.  The offender had no previous convictions and a history of steady employment.  Whilst the offending in M was worse overall than in this case, that offender pleaded guilty very early, he co-operated fully with the authorities, and neither child was required to give evidence.  In any event, the decision in M that the sentence was not manifestly excessive does not imply that a more severe sentence could not have been imposed.

[14] Also bearing in mind that the maximum penalty in Moffat and M was 14 years imprisonment whereas it was 20 years imprisonment in this case, those cases are not inconsistent with the sentence imposed upon the applicant.

[15] The respondent referred to R v D [2002] QCA 445, GAF v QPS [2008] QCA 190, and R v B [2003] QCA 105.  In D, a sentence of six months imprisonment imposed after a trial was held to be within the sentencing discretion.  That offender was the uncle of the complainant child who was about eight years old.  He indecently touched her inside her clothes.  He had a relatively minor record of drug offences and had been placed on probation for 18 months for possession of a weapon whilst not being the holder of a licence.  No remorse was demonstrated.  Notwithstanding the applicant’s more favourable personal circumstances, D is not inconsistent with the sentence imposed upon the applicant, because he committed offences on two separate occasions, his second offence was more serious than the single offence in D, and the maximum penalty for each of the applicant’s offences was double the maximum penalty of 10 years imprisonment applicable in D.

[16] In GAF v QPS a sentence of 15 months imprisonment suspended after four months for an operational period of three years was found to be high but not manifestly excessive.  That offender took his 14 year old niece out of her school to go shopping and for lunch, but he then took her to a motel room.  He rubbed the child’s legs, put his hand under her shorts, and repeatedly made indecent suggestions to her.  He had no criminal history, was married with children, pleaded guilty, and was embarrassed and remorseful.  That offending involved a greater degree of pre-meditation than the applicant’s, but in other respects the applicant’s offending called for a more severe sentence.  The complainant in this case was much younger than in GAF v QPS, it is again significant that the applicant committed offences on two separate occasions with an escalation in seriousness, the applicant could not claim the mitigating benefit of a plea of guilty, and in GAF v QPS the maximum penalty was 14 years imprisonment.

[17] The applicant relied upon B, in which a sentence of 18 months imprisonment after a trial was found to be manifestly excessive and the offender was re-sentenced to 12 months imprisonment.  The child, the offender’s stepdaughter, was in grade 4 at the time of the first offence and grade 5 or 6 at the time of the second offence.  On the first occasion, the child woke up when the offender touched her on or near her vagina whilst she was sleeping.  He committed a similar offence on the second occasion and also then offered to perform a more serious indecent sexual act.  The offender had previous convictions for wilful destruction of property and assault occasioning bodily harm, for which he had been given non-custodial sentences.

[18] The applicant’s conduct in his second offence of taking the complainant from the house in which she was residing to his vehicle and there undressing her was an aggravating feature of his offence, but the second offence in B included different aggravating features.  There is little to distinguish the cases, save that the applicant did not have any criminal history, a circumstance which favours relative leniency in his case.  However the offender in B was sentenced before the maximum penalty for this offence (against s 210(1)(a) of the Criminal Code of unlawfully and indecently dealing with a child under the age of 16 years with the circumstances of aggravation in s 210(3) that the child was under 12 years) was increased in 2003 from 14 years imprisonment to 20 years imprisonment by the Sexual Offences (Protection of Children) Amendment Act 2003.[6]  The same Act introduced the provision now found in s 9(5)(a) and s 9(6) of the Penalties and Sentences Act 1992.[7]  The appeal in B was heard before the commencement of the amending Act and the comparable sentencing decisions to which the court referred were decided between 1995 and 2000.  Subsequently, in 2010, the Penalties and Sentences Act 1992 was further amended by the introduction of  the provision in 9(5)(b) that “in sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years…the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.”[8]

[19] Those changes in the sentencing regime for this offence, especially the substantial increase in the maximum penalty, are significant.  It is to be expected that they would produce a general increase in the severity of sentences, rendering the earlier cases of little utility as comparable sentencing decisions.[9]  That is so even though, as the applicant submitted, the increase in the maximum penalty should not necessarily be reflected in proportionate increases in sentences.  This follows from the nature of the sentencing process; in Markarian v The Queen,[10] Kirby J said:

“I agree that there is no single correct sentence (unless it is lawfully fixed by Parliament). I also agree that sentencing is not a mechanical, numerical, arithmetical or rigid activity in which one starts from the maximum fixed by Parliament and works down in mathematical steps [AB (1999) 198 CLR 111 at 121-122 [16]; Wong (2001) 207 CLR 584 at 611 [74]-[75], 612 [77]; R v Whyte (2002) 55 NSWLR 252 at 278 [160]-[166]]. The process is not so scientific. Because there are a multitude of factors to be taken into account, many of them pulling successively in opposite directions, the evaluation, in terms of time of imprisonment, quantity of fine or other sanction, is necessarily imprecise [Weininger (2003) 212 CLR 629 at 645 [50]]. Human judgment is inevitably invoked. In sentencing there is sometimes a legitimate role for differences of judicial view. These may occasionally favour the extension of leniency, as Osenkowski [(1982) 30 SASR 212 at 212-213 per King CJ] shows. Necessarily, there must also be room for the views of a judicial officer who takes a more punitive view of all of the relevant considerations in the case. So long as all relevant considerations are given due attention, the discretionary character of sentencing will inhibit appellate interference.”[11]

[20] After the hearing of the application, the Court invited submissions from the parties about the decision in R v KT; ex parte A-G (Qld) [2007] QCA 340.  That case was decided after the maximum penalty was increased to 20 years imprisonment.  A 58 year old man, who was a friend of the complainant’s family and staying at their house for a few days, in the course of which he slept in the complainant’s bedroom, touched the eight year old complainant in his genital or anal area and, on the following night, touched the complainant’s penis and anal area.  The offender desisted when the complainant made it clear that his advances were unwelcome.  The offender was convicted after a trial.  He had no prior criminal history and a good employment history. His offending, like that of the applicant, was described as “opportunistic”. The Chief Justice, with whose reasons Keane JA and Dutney J agreed, referred to the offending as involving a “betrayal of trust”. The Chief Justice doubted that the sentencing judge’s assumption that the complainant would likely not suffer significant damage was an available assumption in such a case.  After referring to sentencing decisions including Moffat, the Chief Justice concluded that the effective nine months imprisonment suspended after two months for an operational period of two years imposed by the sentencing judge was manifestly inadequate.  The appeal was allowed and the offender was resentenced to imprisonment for 12 months suspended after six months for an operational period of two years.

[21] The applicant submitted that R v KT; ex parte A-G (Qld) was a very similar case and supported the contentions that his sentence was manifestly excessive and that it was an appropriate case for partial suspension of the imprisonment.  I accept that there are many similarities between the circumstances of the offences and the personal circumstances of the offenders, but there also material differences.  The applicant’s breach of trust was worse because he was in the position of a grandfather to the complainant.  Furthermore, the applicant did not refrain of his own volition from his offending conduct when it must have been clear to him that his conduct was unwelcome, as the offender did in KT.  For reasons already given, the applicant’s second offence also had some serious features which were not present in KT.  It should also be noted that when KT was decided it was a common practice for the court in an Attorney-General’s appeal to resentence at the bottom of the range of permissible sentences,[12] although there is no indication of such an approach in the Chief Justice’s reasons.

[22] The sentence imposed on appeal in KT persuades me that the applicant’s sentence must be regarded as a severe one for the particular offences he committed.  However a contention that a sentence is manifestly excessive is not established merely by showing that the sentence is markedly different from sentences imposed in similar cases; the difference must be such as to demonstrate that there must have been a misapplication of principle or that the sentence is “unreasonable or plainly unjust”: Hili v The Queen (2010) 242 CLR 520 at [58], [59].  Having regard to the differences between the circumstances of the applicant’s offences and those in KT and the requirement to take into account the current maximum penalty for the offences, I am not persuaded that the applicant’s sentence was outside the sentencing discretion.  In so concluding, I have taken into account the age and other personal circumstances of the applicant.  In all of the sentencing decisions which I have discussed the offenders, whilst mature adults, were younger (mostly much younger) than the applicant.  The applicant’s age is a relevant consideration (see s 9(6)(g) of the Penalties and Sentences Act 1992), but the sentencing judge found that he was healthy and I do not accept that his age justified significant mitigation of the sentence.

[23] As to the nature of the order concerning any early release from custody, the partial suspension in GAF v QPS was presumably informed by the particular circumstances of that case, particularly the circumstances that the offender committed only one offence, he pleaded guilty and he was found to be embarrassed and remorseful.  The provision for partial suspension in KT reflected a conclusion that there was “no material likelihood of the respondent’s re-offending”, a conclusion which itself may have been informed by that offender’s conduct in voluntarily refraining from offending.  In this case the applicant, who was regarded as a grandfather, committed sexual offences against the complainant on two separate occasions, he only refrained from further offending in the first offence when interrupted by the complainant’s sister, the second offence involved some escalation in seriousness, the applicant did not plead guilty, and there was no significant evidence in favour of a finding that the applicant had rehabilitated himself.  Those circumstances amply justified the sentencing judge’s conclusion that there was too little information about the likelihood of the applicant re-offending to determine that it was an appropriate case for suspension.

Proposed order

[24] I would refuse the application for leave to appeal against sentence.

[25] GOTTERSON JA: I agree with the order proposed by Fraser JA and with the reasons given by his Honour.

[26] MULLINS J: I agree with Fraser JA.