R v Goodall[2013] QCA 72

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  I agree with the reasons of Douglas J and the orders he proposes.

[2] GOTTERSON JA: I agree with the orders proposed by Douglas J and with the reasons given by his Honour.

[3] DOUGLAS J: The applicant was sentenced on his plea of guilty to three counts of using electronic communications to expose a child under 16 years of age to indecent matter.  On 2 November 2012 he was sentenced to two years imprisonment with a parole eligibility date set as 1 July 2013, one-third of the head sentence.  The main focus of the submissions in this application for leave to appeal against his sentence was on the timing of the parole eligibility date and whether a suspended sentence at an earlier date was more appropriate.

Background

[4] There were several unusual features of the case.  The 12 year old boy complainant used an adult dating website to contact the applicant who was a man of 46 and 47 years of age during the period of about three months when the offences occurred.  The complainant’s profile on the website indicated falsely that he was then 18 years old.  He and the applicant added each other to an instant messaging program that permitted communication with each other by live webcams.  They chatted with each other on about five occasions during three of which they stripped naked and masturbated in view of each other.  Those three occasions were the foundation of the charges. 

[5] The applicant also said that the complainant had told him on one occasion that he was 15 and, another time, that he was 14.  The applicant believed that the complainant looked 15 or 16 and that was not put in issue by the prosecution.  The applicant said to police that he knew that what he, the applicant, was doing was not right but did not know that it was an offence.  He and the complainant discussed the possibility of meeting each other but neither intended that they would do that.  The complainant gave a statement to police in which he referred to contacting up to 50 males on dating websites and indicated he had been naked on his webcam with perhaps half of them. 

[6] The complainant’s mother discovered what was happening by chance when she picked up the laptop used by her son.  She and her husband informed police who were able to locate the applicant through his IP address.  When they executed a search warrant at his house he made admissions in respect of the charges. 

[7] The complainant said, in a victim impact statement, that he now feels dirty and guilty from letting the applicant see him when he was only 12 and distant from his parents, with his childhood taken from him.  The effect on his family has been profound, his parents’ and brother’s focus being particularly on the complainant’s “stolen … childhood.”  The parents believe they failed in their duty to protect their child from harm. 

[8] The applicant had no previous convictions, has expressed remorse for what he did and changed his behaviour when contacting people online by avoiding sexual conversation and trying to ensure that the people with whom he communicates are adult.  He entered a timely plea of guilty and cooperated with police by giving a full account of what he had done.  He also had a good work history.

[9] The unusual features of the case to which I referred earlier included, in particular, that the complainant was a real child rather than a police officer impersonating a child and that the applicant did not engage in predatory behaviour towards the complainant but was sought out by him, at least initially.  He did, however, make suggestions to the complainant about what conduct to engage in.  He was also much older than the complainant and should have known not to behave in the manner he did, adding to the corruption of his innocence.  Had he behaved appropriately as an adult one would have expected him at least to ignore the complainant when he realised his youth. 

[10] The learned sentencing judge decided that there were no exceptional circumstances to take the case outside the provisions of s 9(5) of the Penalties and Sentences Act 1992 (Qld).  That subsection 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.  The applicant accepted that his Honour was correct to find that the case was not exceptional for the purposes of that subsection.

Discussion

[11] The comparable decisions to which we were taken were cases where the complainants were police officers pretending to be naïve children and where the charges were normally ones of procuring a person believed to be under 16 years to engage in a sexual act.  In three of the cases the penalties imposed on youthful defendants were 18 months imprisonment suspended after three months with an operational period of between two and four years.[1]  In R v Burdon; ex parte Attorney-General (Qld),[2] an 18 month sentence wholly suspended with an operational period of two years and an order to perform 240 hours community service was not disturbed on an Attorney-General’s appeal.  There the 50 year old defendant had been publicly shamed in his local community where he was well-known and had performed all of his community service by the time of the appeal. 

[12] In R v McGrath,[3] another youthful offender had engaged in significant efforts at rehabilitation and the Court of Appeal framed a sentence to ensure that process continued by suspending the sentence of imprisonment imposed by the learned sentencing judge and placing the applicant on 12 months probation with a special condition that he submit to such psychiatric or psychological treatment as may be directed by a community corrections officer.

[13] Finally, in R v Bedeau,[4] the applicant’s 18 month sentence after a trial was suspended after six months as a result of the decision of this Court after it took into account aspects of the applicant’s personal circumstances, including his lack of a relevant criminal history and the financial dependence of his ill mother on him where he was also her carer.

[14] One feature of these decisions is that the term of actual imprisonment to be served is commonly less than the one-third often applied where a defendant has pleaded guilty.  An explanation may lie in the circumstance that few, if any, of the offenders had a relevant criminal history.  That is also the case here.  It may also reflect the fact that the offences have been committed in circumstances where no child has actually been involved, something that has been treated as a relevant consideration to penalty.[5]

[15] Here, as the applicant’s counsel recognised, the fact that the complainant was really a child and not a police officer pretending to be one made the offending more serious.  Nor did Mr McInnes for the applicant seek to argue that, because the complainant was already exploring his sexuality online with others, that detracted from the applicant’s criminality.  He did submit, validly in my view, however, that the applicant could not be held solely responsible for the emotional harm suffered by the complainant and that it was less likely that he would have perceived he was sexualising the complainant than in the cases where police impersonated naïve children. 

Consideration

[16] The fact that the complainant was a 12 year old who suffered from his exposure to the applicant’s behaviour takes this case outside the other decisions to which we were referred and justifies the two year sentence imposed by the learned sentencing judge.  There is a significant difference between the effects on a real child of behaviour of this nature and the effects on a police officer pretending to be a child.  Considerations of general deterrence are important in fixing such a sentence. 

[17] The fixing of a parole eligibility date at the one-third point, however, lacked proportionality with the tendency apparent in the other cases to which I have referred where the sentences were suspended at an earlier stage than might normally be the case on a plea of guilty.  The greater seriousness of the offending evident in the fact that a real child was involved may justify that approach to some extent, as may the applicant’s greater age than most of the offenders in the comparable decisions, but the absence of any significant evidence that the applicant procured the complainant to behave as he did or acted in a predatory fashion are countervailing considerations.  Accordingly, the failure to set an earlier parole eligibility date does lack a degree of proportionality with the comparable sentences with the result that, in my view, the sentence is manifestly excessive in that respect.

[18] In that situation, it is open to this Court to re‑sentence the applicant.  It was significant that we were not able to be assured on the hearing of the application that the applicant would be in a position to receive any psychological or psychiatric treatment while in prison during the balance of his term in actual custody.  The availability of the relevant programs varies from prison to prison.  The timing of the programs through the year also varies.  It is desirable that he should receive some supervision to assist him to refrain from further similar conduct.  One way to be surer that he will receive such assistance is to alter the sentences to suspend them after six months for an operational period of three years in respect of counts 1 and 2 and, in respect of count 3, to impose a sentence of six months imprisonment coupled with one year of probation as is permitted by s 92(1)(b) of the Penalties and Sentences Act.

[19] In my view, suspension of the sentence after six months adequately reflects the seriousness of the conduct of the applicant towards the complainant and is an appropriate personal and general deterrent in conjunction with the two year head sentence.  The probation order will also provide further protection for the community and assist the applicant to address his offending behaviour.

Order

[20] Accordingly, in the expectation that the applicant will agree to a probation order, I would grant the application for leave to appeal, allow the appeal, set aside the orders of the learned sentencing judge and order as follows:

(a) In respect of counts 1 and 2, sentence the applicant to two years imprisonment and order that the term of imprisonment be suspended after serving a period of six months.  The operational period under the order will be three years and the applicant must not commit another offence punishable by imprisonment within the operational period if he is to avoid being dealt with for the suspended term of imprisonment;

(b) In respect of count 3, sentence the applicant to six months imprisonment at the end of which he is to be released under the supervision of a corrective services officer for a period of one year.  When released he must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992.  He must also comply with the special condition that he submit to such psychiatric or psychological treatment as may be directed by an authorised corrective services officer.