R v CBG[2013] QCA 44

SUPREME COURT OF QUEENSLAND

[1] WHITE JA:  I have read the reasons for judgment of Atkinson J.  Her Honour has set out the relevant provisions of the Penalties and Sentences Act 1992 (Qld) which govern this offending.  Her Honour has referred to passages from authority binding on this court about the manner in which a court must approach sentencing an offender, particularly where protection of members of the public is a dominant factor and has carefully analysed the comparable authorities. 

[2] It is well recognised that sentencing is not an exact science[1] and that:

“[a]n approach which seeks to grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process.”[2]

Nonetheless, broadly comparable offending conduct informed by the particular circumstances of the offender and the victim ought to attract similar sentences.  To impose a sentence which lies well outside sentences which have been imposed for similar offending, either above or below, offends against the important principles of certainty and of equality before the law.

[3] As her Honour’s analysis demonstrates, the sentence of six years imprisonment suggests error because it departs so appreciably from previous sentences.  On examination it appears that the applicant’s prior offending has overwhelmed the appropriate level of sentence which the circumstances dictated.  This has caused the primary judge to impose a penalty which was disproportionate to the gravity of the offending.[3]

[4] I agree with the sentence and orders proposed by her Honour.

[5] GOTTERSON JA: I agree with the orders proposed by Atkinson J and with the reasons given by her Honour.

[6] ATKINSON J: The applicant has applied for leave to appeal against a sentence imposed upon him on 14 September 2012 by the District Court at Ipswich.  The applicant was sentenced on two counts of indecent treatment of a child under 16, who was under 12 (Criminal Code s 210(1)(a), (3)), to six years imprisonment with a parole eligibility date after he had served two years, fixed at 17 February 2014.  A period of 210 days of pre-sentence custody was declared as time served under the sentence.

[7] The applicant was arraigned and pleaded guilty on 6 September 2012 before a different judge and the sentence was adjourned to enable a report to be obtained from Dr Wendell Rosevear, the medical practitioner who was treating him.

[8] The circumstances of the two offences were that the applicant lived next door to the nine year old complainant and his family.  The complainant's family had lived there for five months and had befriended the applicant.  The applicant had openly informed the complainant's mother that he was a reportable offender as a result of having been convicted of sexual offences against children however he assured the complainant's mother that he had changed. 

[9] On 16 February 2012 the applicant was at the family home of the complainant socialising with the complainant's mother and a friend of hers.  The applicant was drinking spirits.  The complainant and his siblings were also at the house.  The complainant was put to bed at about 8.45 pm.  At about 10.45 pm the applicant told the complainant's mother and her friend that he was going inside to go to the toilet and to get another drink.  He offered to get them a drink for them as well.

[10] The applicant went inside the house and whilst in there he entered the complainant child's bedroom on two occasions about two minutes apart.  On each occasion he knelt down beside the complainant child's bed, put his hand down the complainant child's pants and rubbed the child's penis with his hand.  The child was awoken by the applicant's actions and heard the applicant expressing pleasure at what was occurring.

[11] When the applicant did not return from inside the house after about five minutes the complainant's mother went inside to see what was happening.  She could not see the applicant and noticed that the toilet light was off.  She also noticed that the applicant's drink and the drink he got for her were on the kitchen bench.  She then heard the applicant's voice coming from the complainant's bedroom saying, "It's OK mate, just lay back down and go to sleep."  She then saw him come out of the complainant's bedroom and she noticed through his shorts that the applicant's penis was partially erect.

[12] The complainant's mother told her friend and the applicant that it was time for them to leave and they did. 

[13] On the following morning the complainant's mother asked the complainant if anyone had ever touched him and he told her that the applicant had touched him the night before "on his willy"; that the applicant had "rubbed his willy and said 'Ahh beautiful'".  The complainant child took part in a s 93A interview with the police on the following day.  The complainant's mother participated in a pretext telephone call with the accused where she asked him if he had touched the complainant's willy and he said that he had but that was the first time he had done it.  The applicant then made admissions to the police.  His admissions to the police did however involve some attempt to exculpate himself.  This was nevertheless an early plea of guilty.

[14] The learned sentencing judge also had before him a victim impact statement by the child's mother as to the devastating effect of the offences on the child and his family.

[15] The learned sentencing judge also had before him three experts' reports, two of which related to earlier offending.

[16] The applicant had been convicted on 2 August 1996 on five counts of indecent dealing with a child under 16 years, one count of indecent dealing with a child under 12 years, two counts of wilfully exposing a child under the age of 16 years to an indecent video tape, one count of wilfully exposing a child under the age of 12 years to an indecent video tape and one count of unlawful assault.  He received various terms of imprisonment, the maximum being three years with a recommendation that he be considered for parole after serving 15 months.  It was recommended that he take part in the sexual offenders' programme whilst in custody.  The offending for which he was imprisoned in 1996 was committed in 1995 when the applicant was 17 to 18 years of age.  He was born on 22 January 1977.  The four boys involved were aged between 10 and 13 years.

[17] The facts of that offending were that the boys lived in the same local area as the applicant.  They associated with the applicant because they were able to acquire marijuana from him.  The applicant used the opportunity which arose from the boys coming to his house or public places for marijuana to sexually molest them and to show them pornographic films.  He also molested a boy who was amongst a group camping with him overnight in a recreation ground.  The molestation was often accompanied by aggressive physical conduct.

[18] The applicant was interviewed by Dr Alan Freed, a psychiatrist, on 17 June 1996 with regard to those charges to which he intended to plead guilty which were dealt with in the Ipswich District Court on 2 August 1996.  The applicant gave a history of being molested when he was 11 or 12 years of age by a 60 year old man who had taught him how to ride a motorbike.  The man invited him over and offered him alcohol.  The applicant, who was then a child, got drunk and when he woke up the offender had his hand on his penis.  Dr Freed said that the applicant had been profoundly affected by his childhood molestation episode which had left him with two consequences.  The first was a major phobia about seeing his molester and being recognised by his molester and a fear of sexuality in general and secondly a concern about developing an identity of, and behaving as, a molester.  Dr Freed was of the opinion that the applicant would be harmed by a prison environment, that he was not an antisocial adult and that he should undergo psychotherapy and behaviour therapy to facilitate and confirm his adult-to-adult sexual functioning and to lessen his phobia of the suburb where his molester lived.

[19] On 9 October 1996 the applicant was convicted of possessing dangerous drugs, possessing a thing used in connection with smoking a dangerous drug and supplying a dangerous drug to another.  He was convicted in the Ipswich Magistrates Court and various fines were imposed upon him.

[20] On 3 November 2000 the applicant was convicted in the Southport Magistrates Court of wilful damage.  A conviction was recorded and he was ordered to undergo 18 months probation.  On 22 November 2004 he was convicted in the Ipswich Magistrates Court of breaching a bail undertaking and fined. 

[21] On 24 August 2005, he was convicted of two counts of indecent treatment of children under 16, one count of indecent treatment of a child under 16 (indecent film etc) and one count of administering drugs etc for the purpose of a sexual act.  He was also convicted of three counts of indecent treatment of a child under 16 being a child under 12 years.  The longest sentence he received was a sentence of imprisonment of four years suspended for five years after serving one year.  In addition he was imprisoned on other counts for 12 months and on release from custody ordered to undergo probation for three years with special conditions that he undergo medical, psychiatric and psychological treatment and attend drug and alcohol counselling.

[22] Those offences involved two complainants.  One boy was aged between seven and nine years when the applicant took him to a scout hall and performed oral sex on him and touched his penis; the second boy was aged 12 when the applicant took him to a skate park where he performed oral sex on him in a toilet block.  He also showed the boy a pornographic film and indecently dealt with him in his home.

[23] The applicant had been examined for the purpose of the sentencing hearing by a psychiatrist, Dr Aleksandra Isailovic, who prepared a report dated 5 April 2004.  He was then described by her as a 27 year old single, intellectually disabled, gay man who was unemployed, supported on the disability support pension and who usually lived at his parents' house at Ipswich.  She was of the opinion the applicant's psychosexual problems would qualify as paedophilia characterised by a deviant fantasy involving homosexual relationships with children.  She was of the opinion that paedophilia combined with his low intellect and previous history of offending made him a life-long reoffending risk, as did his loneliness and inability to relate to men of his own age, combined with his sexual frustration which arose from prolonged sexual abstinence.  He had however quite a few protective factors which counterbalanced his offending risk.  His paedophilia was not complicated by a personality disorder or psychopathy.  He had never resorted to any form of violent sexual activity such as rape.  He had a supportive family who were willing to take part in monitoring and reducing his offending risk and he had managed to have a prolonged period of non-offending of eight years.

[24] On 24 October 2008 the applicant was convicted in the Southport District Court of two counts of observations or recordings in breach of privacy.  The circumstances of this offending were that in a public convenience the applicant looked underneath a cubicle door on two occasions where the 16 year old complainant was showering.  Those offences were committed in breach of the suspended sentence imposed on 24 August 2005.  On the observations or recordings in breach of privacy he was sentenced to 283 days imprisonment.  On the breach of suspended sentence the breach was proven and the sentence reopened.  He was ordered to serve 12 months of the period of imprisonment which had been suspended, he was declared as having spent 283 days in custody under that sentence and it was ordered that he be released on parole on the day of sentence, that is 24 October 2008.

[25] The report by Dr Wendell Rosevear obtained for the purpose of this sentence is dated 6 September 2012.  He said that he had counselled the applicant intermittently between 13 July 2004 and 20 November 2011 and knew him very well.  Dr Rosevear said that the applicant said he had informed the neighbours about his past as a way of trying to use honesty to generate understanding and safety about risk, boundaries and to try to prevent recurrence of abuse.  The applicant had been drinking alcohol at the time of the events.  Dr Rosevear said the applicant has an alcohol and drug problem which affected his ability to see any limits or boundaries or to remember his past mistakes to learn from them; he had expressed the intention never to abuse a child again but under the influence of alcohol and drugs those good intentions dissolved.  Dr Rosevear said that he had invited him to use an alcohol and drug recovery group in the past but he had not used it.  Dr Rosevear's opinion was that the applicant could never afford to have another drink of alcohol or use drugs if he wanted to stay out of trouble and act in safe ways not to abuse children.

[26] Dr Rosevear gave the following useful insight into the applicant's history:

"[The applicant] said that he had learning difficulties at school and had been assessed as having Attention Deficit Disorder which was not helped by medication.  His father said he had a bad reaction to Measles as an 18 month old baby and 'was always behind in his abilities and development.'  He said that he did not mature physically until about 18 or 19.

[He] identifies that at age 12 he was sexually abused by a male Council Workman in his sixties who gave him alcohol.  He didn't disclose it until age 19.  He has been to Court about this case but failed to get a conviction against the man he said abused him.

When he was 14 to 15 years old he engaged in experimental sexual activities with his same age peers from school and Junior Squash.  It involved games like spin the bottle and strip poker.  Someone told others at school and he was labelled as 'gay' and he says he was bashed on a number of occasions.  He became depressed and started to use drugs and isolate.  He says school told him he was a 'no hoper' and that he wasn't welcome after Year 10.

He couldn't make any friends and did not know any gay people in his area.  He often locked himself in his room especially after he says he was bashed on three occasions in two years.

When he was in jail he identified that he was often forced to give sexual favours for protection.  He says on one occasion a man threatened to rape him if he didn't give him oral sex.  He escaped from this situation but became depressed and suicidal.  He was attracted to one man but that man worked as a sex worker in jail and he didn't want a commercial interaction as he wanted a friendship, so no sex occurred.

He did the Sex Offenders Treatment Programme in prison but didn't feel comfortable to be honest as there were twelve people in his group and he didn't trust them.  His learning difficulties mean that the Programme can only be expected to be of limited benefit to him.  I say this as it is based on Cognitive Behavioural therapy principles and requires a certain standard of learning capacity.

It has been hard for him to find safe places to be his honest self.  I have made suggestions of ways to meet equal age peers for mutual friendship and interaction.  He lacks the confidence to step out and explore new opportunities to make friends near his age.  He seems to show relief in being honest in the counselling sessions.

On 5/9/09 his mother was killed in a Motor Vehicle Accident and it traumatized him severely.  He was very close to his mother and she was proactive in helping him make friends, play squash and have activities to fulfill [sic] his life.  He grieved badly and was very angry.  He sought relief in alcohol and drugs which didn't really help."

[27] The prosecution submitted to the learned sentencing judge that given the persistence of his sexual offending against children, protection of the community was the most important factor to be taken into account in the sentence to be imposed.

[28] The defence submitted that the learned sentencing judge should take into account in particular the applicant's intellectual impairment and his use of alcohol and drugs, his supportive family, his plea of guilty and remorse.

[29] The learned sentencing judge took into account the circumstances of the offending, the early plea of guilty, the applicant's age (35 years at the time of the offences), his criminal history of sexual offending against children, the victim impact statement, his use of cannabis during the day and alcohol on the night in question, his low intellect, his remorse and the report by Dr Rosevear.  He accepted the submission that protection of the community was the most important consideration on sentencing in this case.  He concluded his sentencing remarks as follows:

"Our community needs to be protected from predatory sexual offenders such as you.  The maximum penalty for this offence is 20 years imprisonment.  None of the authorities cited would justify my imposing a penalty of more than six years imprisonment.  Many might see that as grossly inadequate, but as a sentencing Judge on the District Court I am of course bound by the authority of the Court of Appeal in any sentence that I impose.  Were I to impose a sentence that was wildly out of proportion with the way the previous cases have been dealt with in the Court of Appeal, my sentence would be cut back by the Court of Appeal.  So as a sentencing Judge my sentence must comply with previous authorities of the Court of Appeal, having regard to all of the circumstances of the particular case."

Applicant's submissions

[30] The applicant submitted that the purposes for which a sentence may be imposed are as set out in s 9 of Penalties and Sentences Act 1992 (Qld) ("PSA").  A cardinal principle of sentencing in s 9(1)(a) is that a sentence should only result in punishment that is just in all the circumstances.  Relevantly, the applicant submitted, a sentence should be proportionate to the gravity of the offence and should not be increased beyond what is proportionate to the crime merely in order to extend the period of protection of society from the risk of recidivism on the part of the offender.  Whilst the antecedent criminal history is relevant in determining whether retribution, deterrence or protection of society might indicate that a more severe penalty is warranted, it could not be used to impose a fresh penalty for past offences.

[31] The applicant's authority for this clearly correct proposition is R v Aston (No 2)[4] where the Court of Criminal Appeal adopted the sentencing approach referred to by the High Court in Veen v The Queen [No 2][5] and held:

"The majority judgment in Veen [No 2] makes clear that the principle of proportionality (that the sentence should be proportionate to the gravity of the offence) applies in Australia.  Additionally a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender or to act as a deterrent to others who might contemplate committing the same offence (164 CLR at 472).  However, it is permissible to have regard to the protection of society as one of the factors amongst others in the exercise of the sentencing discretion."

[32] Cooper J, who wrote the leading judgment in R v Aston (No 2), referred with approval to what had been said in Veen [No 2] about the use which could be made of an offender's criminal history at 477-478:

"… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.  To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642 at 650.  The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence continuing attitude of disobedience of the law.  In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.  It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.  Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency.  That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties."

[33] The applicant also referred to s 9(8) of the PSA which states that in sentencing an offender the court must not have regard to whether or not the offender may become the subject of a dangerous prisoners application or order.  Despite subsection (8), under subsection (9) the sentence imposed must be proportionate to the gravity of the current offences.  The applicant conceded that the offending was aggravated by the prior criminal history for like offences which placed special focus in the sentencing process on the need to protect children from a risk of reoffending: see s 9(6) of the PSA and R v Brackenrig [2010] QCA 41 at [20] per McMurdo P.

[34] The applicant submitted that the sentencing judge ignored the objective circumstances of the offending itself.  The history of applicant's prior offending could not, it was submitted, be allowed to overwhelm the circumstances dictating the level of appropriate penalty.

[35] The applicant submitted that the offending in this case involved conduct at the lower end of the scale of seriousness.  The objective circumstances might warrant a sentence of between 12 months to three years imprisonment and therefore the sentence imposed had been significantly increased having regard to his history of offending.

[36] The applicant submitted that the sentencing judge was so influenced by the prior criminal history of the applicant as to have imposed a sentence which was disproportionate to the gravity of the offences.

[37] In order to submit for a sentence of two to three years imprisonment with a parole eligibility date fixed at one third of the sentence the applicant referred the court to Rv Brackenrig; R v Wharton; ex parte A-G (Qld) [2009] QCA 396; R v SAQ [2002] QCA 221 and R v Schirmer [1995] QCA 242.

Respondent's submissions

[38] The respondent submitted that the need to protect the community from the offender assumed the most significance in the sentencing process.  The mandatory primary considerations for the court in determining a sentence for sexual offences committed against a child are prescribed in s 9(6) of the PSA.  Specifically the learned sentencing judge was required to have primary regard to the need to protect other children from the offender.

[39] The sentencing judge was also bound to consider the applicant's criminal history.  The respondent referred to another passage from Veen v The Queen [No 2][6] where the majority held:

"It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence.  The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible."

[40] The respondent also referred to the decision of the High Court in Muldrock v The Queen[7] where the court held:

"It is the function of the court sentencing an offender for a criminal offence to take into account the purposes of criminal punishment in determining the appropriate sentence.  A purpose of punishment is the protection of the community from that offender.  A court may not refrain from imposing a sentence that, within the limits of proportionality, serves to protect the community in a case that calls for it because at some future time the offender may be made the subject of an order under the Sex Offenders Act." (citations omitted)

[41] The respondent submitted that the applicant is a recidivist offender and the sentencing judge was entitled to conclude that he would offend again.  The risk he posed to children had been clearly established and in those circumstances the sentencing judge was entitled to attach great weight to the need to protect the community in integrating all factors relevant to the sentencing process.

[42] The respondent conceded that it is impermissible to give such weight to the applicant's criminal history as to result in a fresh penalty for past offences but submitted that the sentence imposed was not such a punishment but rather it properly recognised that the applicant was a recidivist offender from whom the community needed to be protected.  The respondent referred to the fact that the maximum penalty for each offence of indecent treatment of a child under 16 years who is under 12 years is 20 years imprisonment.

[43] In support of the sentence of six years imprisonment with a recommendation for parole after two years the respondent referred to R v Foy ex parte Attorney-General [2001] QCA 209; R v R [2000] QCA 27 and R v SAQ [2002] QCA 221.  In each of those decisions the maximum penalty was 14 years imprisonment.

[44] The maximum penalty for a breach of s 210(3) of the Criminal Code was increased from 10 years to 14 years imprisonment by the Criminal Law Amendment Act 1997.  It was increased from 14 years to 20 years by the Sexual Offences (Protection of Children) Amendment Act 2003.

Statutory sentencing principles

[45] Sentencing of adults in Queensland is governed by the provisions of the PSA and applicable common law principles.

[46] Section 9(1) of the PSA sets out the only purposes for which sentences may be imposed on an offender.  They are:

"(a)to punish the offender to an extent or in a way that is just in all the circumstances; or

(b)to provide conditions in the court's order that the court considers will help the offender to be rehabilitated; or

(c)to deter the offender or other persons from committing the same or a similar offence; or

(d)to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or

(e)to protect the Queensland community from the offender; or

(f)a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e)."

[47] As the applicant committed an offence of a sexual nature in relation to a child under 16 years, the court is required to have regard primarily to the following criteria set out in s 9(6) of the PSA:[8]

"(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 of the sentencing court considers relevant."

[48] Part 2 of the PSA sets out other criteria to which the sentencing court must also have regard.  Relevant to this case are the following:

● the maximum penalty prescribed for the offences (s 9(2)(b));

● the nature of the offence and how serious the offence was, including any physical, mental or emotional harm done to a victim, including harm mentioned in a victim impact statement, in this case written by the child's mother, and the effect of the offence on a child under 16 years (PSA s 9(2)(c); Victims of Crime Assistance Act 2009 s 15(5)(b); see also PSA s 9(6)(a));

● the extent to which the applicant is to blame for the offence (PSA s 9(2)(d));

● any damage, injury or loss caused by the applicant (PSA s 9(2)(e), s 11);

● the applicant's character, age and intellectual capacity (PSA s 9(2)(f));

● the presence of any aggravating or mitigating factor concerning the applicant (PSA s 9(2)(g));

● the prevalence of the offence (PSA s 9(2)(h));

● how much assistance the applicant gave to law enforcement agencies in the investigation of the offence (PSA s 9(2)(i));

● time spent in custody by the applicant for the offence before being sentenced (PSA s 9(2)(j); s 159A);

● the applicant must serve an actual term of imprisonment (ie wholly or partly in a corrective services facility), unless there are exceptional circumstances (PSA s 9(5)(b), (10));

● in determining the appropriate sentence for the applicant who has previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers it can reasonably be treated as such having regard to the nature of the previous convictions and their relevance to the current offence and the time that has elapsed since those convictions (PSA s 9(8), s 11(a));

● that despite subsection 9(8), the sentence imposed must not be disproportionate to the gravity of the current offence (PSA s 9(9));

● the plea of guilty must be taken into account and may reduce the sentence that it would have imposed if the offender had not pleaded guilty (PSA s 13).  This is a significant factor in offences of this sort.  As Wilson J observed in R v SAQ:[9]

"In this case, the effect of the guilty plea was not only to express remorse and to save the community expense.  Perhaps more significantly it was to save the young complainant child the ordeal of giving evidence.  These are powerful factors."

● any other relevant circumstances (PSA s 9(2)(r)).

[49] The sentencing judge in this case took account of most of the relevant criteria.  The question on appeal was whether in taking account of the applicant's previous convictions, the sentence imposed was disproportionate to the gravity of the offences which were the subject of the convictions on this plea of guilty.  This prohibition reflects the common law which does not sanction preventive detention.  As the High Court held in a unanimous judgment in Chester v The Queen:[10]

"… it is now firmly established that our common law does not sanction preventive detention.  The fundamental principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism of the offender: Veen v. The Queen [No. 1]; Walden v. Hensler; Veen v. The Queen [No. 2]."  (citations omitted)

[50] Keeping in mind the change in maximum penalties, it is also appropriate to look at sentences imposed on other offenders to determine whether this sentence was disproportionate to the gravity of the offences and so manifestly excessive.  I shall deal with them in chronological order.

[51] In R v Schirmer[11] a sentence of three years imprisonment on each of two counts of indecently dealing with a girl who was nine years old was set aside and a sentence of two years imprisonment imposed on appeal.  The circumstances of the offending were that the applicant employed the complainant's father to clean carpets at his business.  He approached the complainant when she was sitting in her father's van playing with dolls and put his hand up inside her pants and touched about the vagina.  Shortly thereafter he persuaded the complainant to go to his office in the building where her father was cleaning carpets.  He sat on the only chair in the room and invited her to sit on his knee.  When she did this he again put his hand up inside her panties and again touched her on the outside of the vagina.  The matter went to trial and the applicant was found guilty.  He had previously been convicted of an indecent dealing with a child who was under the age of 12 years.  On appeal Ambrose J who wrote the leading judgment of the court said of these offences:

"It was contended, in my view correctly, that the acts constituting the offences were to be found at the lower end of the range of seriousness, touching her only on the outside of the vagina.  There was no gross behaviour sometimes accompanying such offences relating to perhaps oral sex or ejaculation or rubbing parts of the applicant against body parts of the complainant.

It was pointed out that the events were isolated and unpremeditated and they occurred within a relatively short period of time.  There was no evidence of any threats of violence, no evidence of harm to the child, and the applicant was not in any position of trust."

[52] His Honour referred to other sentences dealt with by the Court of Appeal and concluded that the sentence of three years imprisonment imposed on the applicant even allowing for his previous conviction, was manifestly excessive.  A period of two years imprisonment was imposed in its place.

[53] The present case bore some similarities to that case.  The acts constituting the offences were at the lower end of the range of seriousness.  The events were isolated and unpremeditated and occurred within a relatively short period of time.  There was no evidence of any threats of violence, no evidence of physical injury to the child and the applicant was not in a position of trust.  Schirmer had a previous conviction.  This applicant, however, has a more extensive history of offending and the maximum penalty has increased.

[54] R v R[12] was an appeal against conviction and sentence.  The appellant was convicted after a trial on two counts of indecent dealing with a child under 16 with a circumstance of aggravation.  The circumstances of those offences must be seen against the background that the appellant who was the complainant's father had previously been convicted in respect of indecent dealing with the complainant when she was about six or seven years old.  He had been sentenced to two and a half years imprisonment.  After his release from custody he had at first supervised and later unsupervised access to the complainant.

[55] On one occasion when she was 10 or 11 years old the complainant and her mother travelled from their home to visit her maternal grandmother.  As the complainant had not seen her father for a while he visited her there.  The complainant and the appellant went to the appellant's work shed and on the way he showed her a vibrator.  At the shed, he put some cushions from the lounge on the floor and took off the complainant's pants.  Telling her they did not have much time, he got some butter and rubbed it on her vagina and rubbed his fingers around on her vagina.  He then handed her the vibrator and said to rub it around and put it inside as far as she wanted to.  He made her play with his penis and testicles and suck them.  He then rubbed his penis around her vagina and it slipped in.  She said that it hurt.  He was acquitted of incest on that count but convicted on the alternate count of indecent dealing.

[56] The appellant was sentenced to five years imprisonment.  The offences the subject of the appeal were committed whilst he was either on parole or just after completing parole for remarkably similar offences.  He showed no remorse and did not have the benefit of an early plea of guilty.  He was 47 years old and the complainant was only 10 or 11 at the time.  He was her father.  The offences constituted a repeated and gross breach of trust.  The court held that the sentence imposed was not manifestly excessive.

[57] The applicant in R v R was, unlike the applicant in this case, in a position of trust.  He had previously offended against the same child.  The offending was more serious and appeared to have some element of premediation.  He did not plead guilty and showed no remorse.  The maximum penalty has, however, increased since that time.

[58] R v Foy[13] shows the difficulty faced by a sentencing judge in dealing with a persistent offender.  Foy was convicted in the District Court in 2001 after his plea of guilty to 12 counts of indecent treatment of a child under 12 and one count of indecent treatment of a child under 16.  Four of the counts involved offences that were committed on 13 October 1999 and the other nine counts involved offences which occurred six days later on 19 October 1999.  The first four counts occurred in a park at Morningside and involved Foy kissing an 11 year old, putting his hand down the shorts of the 10 year old and touching her on the vagina, masturbating in front of the 10 year old and licking her between the legs.

[59] The second series of offences occurred at a park at Deception Bay.  The offences occurred in a public toilet at that park when Foy masturbated in front of a six year old boy and put that boy's hand on his penis and rubbed it up and down.  He masturbated in front of a seven year old boy and in front of an eight year old boy.  He pulled another six year old boy into the toilet cubicle, grabbed his hand and put it on his penis.  A ten year old girl standing outside the toilets saw Foy walking around holding his penis.  Another 11 year old saw the respondent open the toilet door and play with his penis.  All of the boys left the public toilets but the six year old ran back in.  The 11 year old ran in to get him and saw the six year old's hands on the respondent's penis.  Foy then grabbed the 11 year old by the arms and put him on his lap and said "You can either stick it in your mouth or up or your bum".  The 12 year old went into the toilets to get the 11 year old and the six year old and saw Foy sitting in the door way holding his penis and wiggling it at the boys.

[60] The longest period of imprisonment that Foy was ordered to serve was three and a half years imprisonment, with other concurrent terms.  Foy indicated his intention to plead guilty only in the week before the cases were due for hearing.  He had a serious and persistent criminal history going as far back as 1980 in Victoria.

[61] Between 1980 and 1994, in Victoria, Foy was convicted on 33 counts of burglary, 13 counts of criminal damage, 19 counts of theft, 11 counts of theft of a motor vehicle and one count of attempted theft of a motor vehicle, three counts of attempted burglary and many other offences including firearm offences, many driving offences, offences involving the lighting of fires, resisting arrest, drunkenness, unlawful assault, tampering with motor vehicles and with breach of community based orders, parole, bail and probation. 

[62] His first conviction for a sexual offence occurred on 24 September 1986 when he was convicted of wilful and obscene exposure.  On 8 November 1989 he was convicted on four counts of indecent assault.  In October 1993 he was convicted on four counts of indecent acts with or in the presence of a child under the age of 16 and four counts of wilful and obscene exposure in public.  On 29 August 1994 he was convicted on four counts of indecent acts with or in the presence of a child under the age of 16 and four counts of wilful and obscene exposure in public.  In April 1995 he was convicted in Cairns for wilfully doing an indecent act and in February 1997 he was convicted in Wynnum on one count of wilful exposure.  He was sentenced to four months imprisonment suspended wholly for three years.  However he was convicted during the period of suspension on 26 June 1997 on three further counts of wilful exposure.

[63] In November 1997 he was convicted on six counts of wilfully exposing a child under the age of 12 years to an indecent act, two counts of wilfully exposing a child under the age of 16 to an indecent act and one count of indecent dealing with a child under 12 years and one count of permitting himself to be indecently dealt with by a child under the age of 12 years.  He was sentenced to various terms of imprisonment and on the indecent dealing charges he was sentenced to two years imprisonment with a recommendation he be considered for release on parole after serving seven months.  He was ordered to serve the whole of the suspended period of imprisonment concurrently.

[64] In June 1999 Foy was convicted of wilful exposure and sentenced, on appeal, to four months imprisonment.

[65] The offences he committed the subject of the appeal were very similar to those for which he had previously been convicted in November 1997.  They were committed in public recreational areas and involved similar sexual offences against children of a similar age to those involved in the offences before the court.  The offences occurred not long after he was released from prison.  Unfortunately like many offenders who commit these offences he had been sexually assaulted himself when younger.

[66] It was noted that while individually each of the offences appeared to be at the lower end of the scale of offending, two further factors appeared from these offences.  The first was the number of children involved and the second was the persistence of his sexual offending behaviour against children.  His criminal history in relation to offending against children had escalated and had occurred in public.  The Court of Appeal held that punishment, public denunciation of his behaviour and protection of the community were the most important factors to be considered in fixing his sentence.  Also relevant was the fact that it was not an early indication of a plea of guilty.  A sentence of four and a half years imprisonment was substituted for the sentence of three and a half years imprisonment which was imposed for some of the counts of indecent treatment of a child under 12.

[67] Foy can be distinguished from the applicant in this case.  The offences for which Foy were sentenced were much more numerous and occurred on two quite separate occasions.  His seeking out children in public parks had an element of deliberation about it.  His criminal history was worse than that of this applicant.  He did not have the advantage of an early plea of guilty and expressed no remorse.  Foy's offending had escalated whereas the offending by the applicant in this case was not as serious as his earlier offending and he had been candid with the complainant's mother about his status as a reportable sex offender.

[68] R v SAQ[14] also involved a persistent offender.  In that case the applicant pleaded guilty to one count of indecent treatment of a child under 16 with the circumstance of aggravation that the child was under 12.  The offence was committed on 29 December 2000.  The child was a seven year old girl.  A sentence of three years imprisonment with no recommendation for early eligibility for parole was upheld in the Court of Appeal.

[69] The applicant was a 41 year old man at the time of the offending and the child's uncle by marriage.  The child's mother dropped the complainant child and her brother off at their aunty's place to spend time with their cousins.  The applicant came to the house to visit his children.  The complainant's mother was aware that the applicant had previously been sent to prison for child molestation however she understood that her children and the applicant's would be supervised at all times that they were in the company of the applicant.  The offence occurred when the applicant placed his hands inside the complainant's shorts and underwear and touched her on the vagina on five separate occasions within a relatively short space of time.

[70] The applicant had a history of similar offences.  On 8 April 1989 he committed the offence of aggravated assault of a sexual nature upon a child of 10 by touching her vagina.  Then on 27 September 1992, he committed two offences of indecent dealing with a child under 12, namely a girl aged nine whose vagina he touched.  His sentence on appeal was two years imprisonment.

[71] The court observed that the conduct involved which led to the sentence for which leave to appeal was sought was conduct within the lower end of the range for this type of offending.  The same is true of the instant case.  As to the previous offending, Wilson J observed at p 4:

"That the applicant had a relevant criminal history did not aggravate the criminality, but it was a reason for not extending leniency."

[72] The sentence of three years imprisonment with no recommendation for eligibility for parole was upheld but was described as "at the top of the range"[15], "a little below the top of the range"[16] and as "high [but] not outside the range".[17]

[73] R v SBM[18] concerned an application for leave to appeal against an effective sentence of six years imprisonment imposed in the District Court.  The application was not successful.  On 21 November 2008, the applicant was convicted and sentenced in relation to nine counts of indecent treatment of a child under the age of 12 years, one count of indecent treatment of a child under 14, six counts of indecent treatment of a child under 16, one count of attempted indecent treatment of a child under 16, six counts of possessing child abuse photographs and two counts of possessing child exploitation material.  The charges were contained in five separate indictments.  All of the indecent treatment charges were aggravated by the relationship between the applicant and the victim.  The victims were three children who were chronologically the applicant's step-daughter, his daughter, and his step-son.  There were a number of distinctive features of the case.  The period of indecent dealing was spread over about 14 years and involved three discrete victims in relation to which the offences did not overlap.  The offences were serious, including digital penetration of the girls and fondling the boy's penis and allowing the boy to fondle his penis while he was naked. 

[74] In relation to the applicant's step-daughter the offending behaviour occurred between 1987 and 1991 when the child was aged from nine or 10 through to 13 or 14 years old.  The offences against the applicant's daughter were committed between 1993 and 1998 when the child was aged between 10 or 11 until she was aged 15.  The offences in relation to his step-son were committed between 2000 and 2001 when the child was aged eight or nine.  The offences in relation to the possession of photographs were committed in 2003 and the offences of possessing child exploitation material were committed in 2007.

[75] The learned sentencing judge imposed sentences of three and four years imprisonment for the two offences against the first victim, two and five years for the eight offences against the second victim, and three and four years for the two offences against the third victim.  All these sentences were to be served concurrently.  In relation to the child abuse photographs the applicant was sentenced to a concurrent term of six months imprisonment.  For the child exploitation material offences the applicant was sentenced to 12 months imprisonment to be served cumulatively on the other sentences.  The end result was an effective sentence of six years imprisonment.  No parole eligibility date was fixed.  Under the Corrective Services Act the applicant would become eligible for parole after serving three years of the total sentence involved.

[76] After the indecent dealing offences were uncovered in 2003 the police located the child abuse photographs.  The applicant was charged but fled the jurisdiction, changed his name by Deed Poll and went to the Northern Territory.  In Darwin he was charged with possessing child abuse material, convicted and sentenced to seven months imprisonment suspended for two and a half years.  That was the only entry on his criminal history. 

[77] A warrant issued for his arrest when he failed to appear in the District Court in Queensland in 2004.  That warrant was executed in December 2007 at which time the police located the child exploitation material.  This combination of being charged, fleeing the jurisdiction, committing similar offences to the last group with which he was charged, being sentenced, and returning to commit further similar offences explains the imposition of a cumulative penalty for the 2007 offences.  Although the applicant in that case did not have a long criminal history, the history of offending which was dealt with by the sentencing judge showed that he had been consistently committing these very serious offences from 1987 and had continued to commit similar offences despite being charged with these offences.

[78] That an effective sentence of six years imprisonment was appropriate in such a case where the enormity of the offending was so much greater than the specific offences for which the applicant was here sentenced shows a marked disparity in the nature of the offending for which a sentence of six years imprisonment was imposed.

[79] R v Wharton; ex parte A-G (Qld)[19] was an Attorney-General's appeal against sentence.  The respondent, Wharton, had been convicted on 3 September 2009 on his own plea of guilty of three counts of indecent dealing with a child, two counts of exposing a child to an indecent act, three counts of permitting himself to be indecently dealt with by a child and three summary counts of permitting his premises to be used for the purposes of possessing a dangerous drug and utensil.  On each of the indecent treatment counts, he was sentenced to two years imprisonment to be suspended after 114 days with an operational period of three years.  The sentences were concurrent and the 114 days pre-sentence custody were declared time served under the sentence.  In respect of the summary offences, Wharton was convicted but no further penalty was imposed.

[80] The offences for which he received those sentences occurred between 2003 and 2008 when he took a number of boys on camping trips.  From about 2004, he started supplying alcohol to the boys while on the camping trips.  In 2005 he started a "dare book", listing prizes (including money) which would be awarded to those who completed activities in the book.  In late 2005 or early 2006 those activities were expanded to include ones of a sexual nature.  Wharton also supplied the boys with cannabis and other stimulant medication.

[81] Some of the offences involved rubbing the boys inside and outside their clothing on their genitals or the adjacent area.  Other counts involved Wharton being naked and on one occasion requesting one of the boys to inject an erectile dysfunction drug into the respondent's penis.  He then masturbated in front of that boy and another boy.  On three other occasions Wharton persuaded a boy to inject erectile dysfunction medication into his penis in return for the payment of money.  Those last three occasions occurred when he was on bail for the earlier indecent treatment offences.

[82] Wharton had a criminal history for sexual offending.  On 13 November 2008 he had pleaded guilty to one count of indecent treatment of a boy which occurred between 1988 and 1989 and two counts of indecent treatment of a child who was under his care committed in August 1989.  Wharton was 48 to 49 years old when those incidents occurred and 67 years old when sentenced.  All of the offending involved one complainant who was 14 years old when the offending first occurred.  The respondent had the complainant do exercises in front of him while removing items of clothing.  The more clothes the complainant removed, the more Wharton would pay him.  Wharton then massaged the boy and fondled his genitals.  The second incident occurred when the complainant was about 15 years old.  Wharton plied the complainant and another boy with liquor.  When the complainant was drunk Wharton took him to bed and rubbed his face on the boy's penis, then lubricated the area around the boy's anus before rubbing his penis on the boy's legs and ejaculating.  On the most serious of the offences he was sentenced to three years imprisonment suspended after six months with an operational period of three years.

[83] On appeal, the court referred to a number of other cases in the Court of Appeal including the case of R v SBM.  Daubney J, who wrote the judgment with which the other judges agreed, held that an effective head sentence of two years imprisonment for the particular offending was not manifestly inadequate, however suspending it after only 114 days of imprisonment was.  Instead the sentences were ordered to be suspended after the respondent had served eight months imprisonment with an operational period of three years.

[84] In R v Brackenrig[20] the applicant applied for leave to appeal against a sentence of two years imprisonment imposed on one count of indecent treatment of a child under 12, 12 months imprisonment on a count of possessing child exploitation material and 12 months imprisonment on a Commonwealth offence of using a carriage service to access child pornography material.  It was ordered that he be eligible for parole after serving eight months of the sentence on counts 1 and 2.  On count 3 his 12 months imprisonment had a release date after four months upon entering into a recognizance of $1,000 conditioned that he be of good behaviour for a period of four years.

[85] The offence of indecent treatment occurred when the complainant child was seven years old.  She lived next door to the applicant.  When she was alone at the applicant's house he pulled her nightie up around her waist and her underpants down to her thighs.  The child said that he began to play with her "front part".  She told him to stop and he started doing it again.  When the police conducted a search of his computer it was found to contain 339 child exploitation images.  They showed pre-pubescent girls posing naked and semi-naked, some showed penile and digital penetration of the girls and others showed the girls giving men oral sex.  The complainant's mother was in a particularly vulnerable position as she had confided in the applicant about her past problems of domestic violence and how her eldest daughter had been molested 12 years earlier by a family member.

[86] The applicant was 52 and 53 years old at the time of offending.  He had been convicted in 1989 for minor offences of dishonesty.  In 1996 he had been convicted on five counts of indecently dealing with a child under 12 years and one count of indecently dealing with a child under 12 years with a circumstance of aggravation.  He had been sentenced to six months imprisonment wholly suspended for a period of two years.  He was later convicted for another minor offence of dishonesty and a breach of bail.

[87] The circumstances of the offences for which he was convicted in 1996 involved the six and seven year old daughters of his de facto partner.  The offences involved him taking off the children's underpants, cuddling them and touching them sexually.  On two occasions he put his hands down the front of one of the child's underpants and touched her on the vagina or the crotch area.

[88] The Court of Appeal held that the acts constituting the offending were at the lower end of the range of seriousness for this offence but the offending was nevertheless serious.  It was cynically opportunistic.  The applicant well understood the child's vulnerable family situation and exploited it.  In finding that the sentences imposed were not manifestly excessive McMurdo P held[21] with regard to his previous offending and the purposes of sentencing:

"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 effective head sentence for the totality of the applicant's offending (two years imprisonment) was within range: cf R v Schirmer and R v SAQ.  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." (citations omitted)

Conclusion

[89] It is apparent when one considers the relevant statutory criteria, the common law and the analysis of cases of similar offending in the Court of Appeal that the sentence imposed was manifestly excessive.  Even having regard to the aggravating factor of the applicant's previous convictions, the sentencing judge imposed a sentence which was disproportionate to the gravity of the offences for which he was being sentenced.

[90] The criteria set out in s 9(6) of the PSA, to which the court must give primary consideration are: the effect on the child, particularly that expressed in the victim impact statement by the child's mother; the age of the child, being nine years old; no physical harm was caused or threat of physical harm used; the nature of the offence was touching of the child's penis on two separate occasions very close in time, by a neighbour without any apparent premeditation; there is a need to protect other children from the risk of the applicant reoffending; there is also a need to deter similar behaviour by other offenders to protect children; compliance with the abstinence programme recommended by Dr Rosevear would assist in his rehabilitation, particularly given his honesty about his offending past; he had a criminal history which showed that his offending behaviour was persistent but not escalating; he had showed remorse; and there were medical reports which gave a good insight into his personality, history and reasons for his offending behaviour.

[91] In addition, it is relevant to consider the maximum penalty of 20 years imprisonment and that this was at the lower end of the range of seriousness for this offence and did not have the exacerbating factors of being committed against more than one child or in abuse of a position of trust; he admitted his offences when questioned and pleaded guilty at the earliest opportunity.  He had spent 210 days in pre-sentence custody and did not have exceptional circumstances that warranted him not serving an actual term of imprisonment.  His previous convictions for like offending were an aggravating factor although that could not be used to impose a sentence disproportionate to the gravity of the offences for which he was being sentenced.

[92] Taking all the factors referred to in these reasons into account and sentences dealt with in this court for similar offending, it would appear that the appropriate sentence to be imposed on each count was three years imprisonment to be served concurrently.  His early plea of guilty should be recognised by providing for a parole eligibility date after he has served 12 months of that sentence.  As that date has passed his parole eligibility date pursuant to s 160D(3) of the PSA should be the date of publication of this judgment.

Orders

1.The application for leave to appeal against sentence is granted;

2.The appeal is allowed;

3.The sentences are set aside;

4.On each of counts 1 and 2 the applicant is sentenced to three years imprisonment to be served concurrently with a declaration that the 210 days in pre-sentence custody be declared time spent under the sentence; and

5.The applicant's parole eligibility date is 15 March 2013, the date of publication of these orders.