R v McCann[2016] QCA 216

SUPREME COURT OF QUEENSLAND

[1] GOTTERSON JA:  The applicant, Matthew Benjamin McCann, pleaded guilty to a count of unlawful sodomy of a person under 18 years of age.[1]  The count alleged that the offending against the female complainant occurred at Springfield Lakes on 14 February 2015.  The plea was entered at the District Court at Ipswich on 9 October 2015.

[2] The applicant was sentenced on 14 March 2016.  It was ordered that a conviction be recorded.  He was placed on probation for three years.  It is a special condition of his probation that he satisfactorily complete a sexual offenders program as directed by his Corrective Services officer.  The applicant was not ordered to serve a term of imprisonment.

[3] On 12 April 2016, the applicant filed an application for leave to appeal against his sentence.[2]  The application is expressly limited to the recording of a conviction.

Circumstances of the offending

[4] A Schedule of Facts tendered at sentence[3] discloses that the applicant, then 20 years old, met the complainant, then 15 years old, on Friday, 13 February 2015.  She and a female friend had absconded from a care facility.  They went by train to Springfield and met up with the friend’s boyfriend who was also a friend of the applicant.  The applicant and the complainant had not met before.

[5] The group of four spent time at the shops.  The applicant and the complainant were mutually attracted to each other.  After a while, he asked her if she would date him.  She said yes and he kissed her for about three minutes.  When he asked her how old she was, she told him she was 15 and he told her that he was 20.

[6] Later that day, the group went to a park with a cask of wine.  Then, at about 11.30 pm, they went to a house at Springfield Lakes where the applicant resided with his female carer.  The other couple went to the garage.  In due course, the carer suggested that the applicant and the complainant sleep in the same bed.  They got into bed and the complainant said to the applicant, “touch me tonight and I will leave.”  The next morning, the carer noticed the applicant’s and the complainant’s underclothing around the room in which they had slept.  She chastised the applicant and told him that he was not to have sex with the complainant and that he was not to sleep in the same bed with her.

[7] The group of four spent the Saturday at the shops.  They returned to the house at about 10.30 pm.  Again, the other couple went to the garage.  The complainant and the applicant stayed up talking to others at the house for several hours.  Eventually they got into the same bed.

[8] There, they engaged in some consensual sexualised touching.  The applicant said, “I really want in.”  He knew that the complainant was menstruating and was wearing a tampon.  He meant, and she understood him to mean, that he wanted to penetrate her anus with his erect penis.  He said that it had been a while since he had, “done anal”.  The complainant said, “no” to engaging in anal sex.  The applicant insisted and the complainant yielded.  He moved her to an all-fours position where his attempt at penetration failed.  He then placed her on her back and managed to achieve it.  The intercourse lasted for about 15 minutes.  He withdrew, went to the bathroom, then thanked the complainant and went to sleep.

[9] The complainant had not engaged in anal sex before.  It made her feel “dirty, disgusting and slimy”.  It caused her pain.

[10] On the Sunday, the group of four went to a shop at Woodridge.  The complainant was ignoring the applicant who kept asking her what he had done wrong.  The two slept in the same bed that night.  On the following Monday, the group travelled by train to the care facility.  The complainant told the applicant that he should find a girl his own age and who wants to do what he likes.  He said that he could only get girls that were her age.

[11] The next day, the complainant complained of the incident to the applicant’s carer.  In due course, the matter was reported to police.  A medical examination on the following Friday revealed two anal fissures, approximately 1 cm and 0.5 cms long.  The applicant told the carer that he knew what he had done was wrong.  He did not participate in an interview with police.

The applicant’s personal circumstances

[12] The applicant has significant disabilities.  A report tendered at the sentence hearing[4] described him as having tested to a mild to moderate hearing impairment for which a hearing aid was recommended.  Further, as a young boy, he had been diagnosed as having an autistic spectrum disorder (“ASD”).  For this, an individual education plan[5] was formulated.

[13] Dr Shelley Keane, psychologist, interviewed the applicant on 3 February 2016.  Her report dated 15 February 2016[6] was also tendered.  Dr Keane reported that the applicant is of low-average to average intellectual functioning.  He continues to have an ASD without intellectual impairment.  A symptom of the disorder is that his understanding and empathy for others is impaired.  His ability to understand others and take their perspective is very poor.  Overall, he is immature for his age.

[14] At the time of his sentence, the applicant had attended at least four sessions with Dr Jacques Rizk at Logan Clinical Psychology.  The focus of the treatment had been on his emotional problems and anger rather than on the offending itself.[7]

[15] The applicant has a twin brother.  Their parents separated when he was three to five years old.  He and a younger brother lived with a grandmother.  He had intermittent weekend contact with his father.  The relationship with his mother and stepfather was poor.  He endured what Dr Rizk described as a chaotic and turbulent family history.  At primary school, he was bullied.  That continued into high school where he was in the special education class.

[16] At school, the applicant was referred for the Disability Support Pension.  He managed to work as a cellarman at a bowls club for two years before he was sacked.  He later had other short term work as a dockhand.  Dr Keane noted that he apparently has difficulty working cooperatively with other employees and with management.  He was unemployed at the time of the offending.  At the time of sentence he was still unemployed and in receipt of a disability support pension for his ASD.

[17] The applicant did not have a criminal history prior to the subject offending.  He had not otherwise offended prior to sentence.

Sentencing remarks

[18] The learned sentencing judge mentioned the circumstances of the offending and the applicant’s personal circumstances to which I have referred.  Her Honour also had regard for the applicant’s early plea of guilty, that given appropriate therapy the risk of re-offending would be “minimised”, indications of some remorse and regret, and the applicant’s willingness to participate in a sexual offenders program.

[19] After accepting Dr Keane’s opinion that, with his poor social skills, the applicant would be at risk of bullying in prison by others with stronger, more intelligent personalities, her Honour told the applicant that he would not be sent to gaol but would be offered probation.

[20] As to the recording of a conviction, her Honour said:

“… In my view, though, there is a very important need that you do complete a sex offenders program or other appropriate counselling to address your offending behaviour, and given the nature of the offence and the matters raised in Dr Keane’s report, in my view, it is appropriate you be subject to the reportable offender provisions and that a conviction should be recorded.  That is simply to protect the community and to ensure that those provisions do protect the community as, indeed, they’re designed to do.

So I have considered whether I should record a conviction against you. I have considered the arguments that you will be socially disadvantaged and put at risk of reoffending by breaching the reportable offender provisions, but on balance it is more appropriate that society be given that protection.”[8]

Ground of appeal

[21] The applicant proposes one ground of appeal.  It is that the recording of the conviction renders the sentence manifestly excessive.

Applicant’s submissions

[22] In written submissions, counsel for the applicant has contended that his client “will have the greatest difficulties already with such things as finding gainful employment, without the extra unnecessary burden of a recorded conviction”.  Reliance was placed primarily upon the basis that the applicant would be subject to the reportable offender provisions of the Child Protection (Offender Reporting) Act 2004 (Qld).

[23] In oral submissions, counsel suggested an error of principle in the sentence by submitting that her Honour had acted upon a view that the recording of a conviction was necessary in order to subject the applicant to the reportable offender provisions.  Reference was also made to potential harm of a conviction to the applicant’s employment prospects in that it might prejudice his eligibility for Government-sponsored work.

[24] Reliance was also placed upon the sentencing decision of this Court in R v Rogers[9] in which the recording of a conviction was set aside.

Respondent’s submissions

[25] The respondent has submitted that the learned sentencing judge appropriately balanced all of the matters required to be considered by her under s 12(2) of the Penalties and Sentences Act 1992 (Qld) in exercise of the discretion whether to record a conviction or not.  Those matters included the impact of a recorded conviction on the applicant’s social wellbeing and the community’s interest in the protection of children.  Her Honour had also taken into account that the applicant was on a disability support pension and that his employment prospects were limited.

[26] The respondent relied on the sentencing decisions of this Court in R v SAT,[10] R v Mirza; ex-parte Attorney-General (Qld),[11] R v Kelly[12] and R v MCA.[13]  It was submitted that they supported the recording of a conviction in all the circumstances of the applicant’s case, giving due regard to the penetrative aspect of his conduct, his expressed attitude of seeking out girls of the complainant’s age to satisfy his desires, and the dependency of the minimisation of the risk of re-offending upon yet-to-be completed “appropriate therapy”.

Discussion

[27] I mention first that the applicant did not propose an additional ground of appeal based on a patent erroneous application of principle.  To have done so would have been futile, in my view.

[28] The passage from the sentencing remarks to which I have referred indicate quite clearly that her Honour considered that it was the nature of the offence and matters raised by Dr Keane that, in her view, justified a concern for community protection – a concern that she considered that would be appropriately addressed by the application of the reportable offender provisions to the applicant.  Her Honour did not record the conviction mechanistically as a trigger for the application of the provisions in the applicant’s case and without regard for a consideration of the nature of the offence, the matters raised by Dr Keane, and community protection.

[29] I would add that her Honour was correct in having regard to the application of these provisions as a relevant consideration.  In Rogers, Henry J (with whom Holmes, and Fraser JJA agreed) rejected a Crown submission that the fact that a person would become a reportable offender and might suffer adverse consequences to their wellbeing as a result, was an irrelevant consideration in the context of an exercise of the discretion under s 12(2).[14]  His Honour regarded that fact as being a relevant, but not determinative, consideration.[15]  I understand his Honour to mean that the potentiality for adverse consequences to wellbeing is not determinative against recording a conviction in this context.

[30] I now turn to the stated ground of appeal.  To succeed in a challenge to a sentence as being manifestly excessive, a person in the position of the applicant must show that the sentence is “unreasonable or plainly unjust” such that it may be inferred “that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance”.[16]  The same principle was recently affirmed by French CJ, Keane and Nettle JJ in R v Pham:[17]

“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle (citation omitted).”

[31] I have concluded that neither of the two matters to which reference has been made on the applicant’s behalf nor a comparison with the decision in Rogers compel a conclusion of the type of which their Honours in Pham spoke.  I have reached this conclusion for the following reasons.

[32] As to the first matter, the reporting conditions will amount to some imposition upon the applicant but his counsel was unable to point to significant imposition.  As to the second, the applicant does not have employment which is threatened by the recording of the conviction.  To his great misfortune, his disabilities have severely limited his prospects of employment as his work and social security history have shown.  Of course, neither matter required, as a matter of principle, that a conviction not be recorded.  In any event, each matter was considered appropriately by her Honour.

[33] In Rogers, the 20 year old male offender was convicted on his own pleas of two counts of using electronic communication with intent to expose indecent matter to a child under 16 years of age.  He had sent two mobile phone text messages to his girlfriend aged 14 years and six months.  One message contained a still photograph of his penis and the other, a short video of him stroking it.  The complainant did not see the messages.  It was said that the offending did not bespeak a significant future risk of paedophilic conduct.[18]

[34] The offending in the applicant’s case was of an obviously different character.  Plainly the complainant was aware of it.  It was urged on her notwithstanding her initial reluctance.  It was personally invasive and painful to her.  Moreover, the applicant’s remark to the complainant concerning his seeking out girls her age does bespeak some risk of further similar conduct, at least until he has completed appropriate therapy.

[35] Of the cases to which the respondent has referred, SAT and Mirza resulted in no conviction being recorded.  In SAT, the applicant was convicted of indecent dealing with a child under 16 years of age and placed on 12 months’ probation.  A conviction was recorded at first instance.  The complainant made a complaint to police three years after the offence, although the offence had been detected immediately following its commission.  The male offender was 17 years old at the time of the offence, and the female complainant, 15 years.  They had been close friends and their families also enjoyed a close relationship through a church.  The circumstances of the offence were that the offender entered the complainant’s bedroom and tried to wake her.  In the process, he put his hands under her pyjama pants and touched her backside above her underwear.  The offender immediately desisted when the complainant woke up.  He apologised.  The offender was punished by the church, paid for counselling for the complainant and attended mediation with her.  Since the commission of the offence, the offender had achieved successes in ways which demonstrated his good character.  His appeal was allowed on the basis that the sentencing judge “placed a great deal of emphasis on the fact that in his view the [offender’s] level of education and general character were such that his chances of finding employment would not be significantly affected by the recording of a conviction” which “undervalued consideration of all of the circumstances of the commission of this offence, the age of [the offender] at the material time and the [offender’s] overall character.”[19]

[36] In Mirza, the offender was convicted of attempted indecent dealing with a child under the age of 12 years.  He was sentenced to 12 months’ probation with no conviction recorded.  An Attorney-General’s appeal against sentence was dismissed.  The circumstances of the offending were that in a domestic environment, and as part of a game, the 25 year old offender, who was a medical student, tried to put his hands down the pants of the 11 year old male complainant to feel his penis.  The complainant pushed him away.  The offender had no prior convictions.  There was no significant risk of re-offending and the offending had been quite out of character.  A conviction could have put at risk his ability to complete the paediatric segment of his medical degree.

[37] In the two other cases, convictions were recorded.  In this respect, the applicant’s case is not without analogies amongst the comparable cases referred to by the parties.

[38] In Kelly, the offender was convicted of indecent dealing with a child under 12 years and under care.  He was sentenced to three months’ imprisonment suspended forthwith for 12 months.  The circumstances of the offending came to light when the offender voluntarily attended a police station and confessed some time after the offending had occurred.  It involved the offender entering the complainant’s bedroom and touching her on the vagina.  The offender’s wife operated a day and night childcare facility from their home where the complainant was a short term resident.  The offender was in his mid-thirties at the time of the offence and 43 years old at sentence.  He had no prior criminal history.  There was no detrimental impact to the complainant or risk of re-offending.  The offender’s appeal was allowed and a 12 month good behaviour bond was substituted.  A conviction was recorded.  However, the sentence did not result in the applicant being deemed a “reportable offender” under the relevant legislation as it applied at the time.

[39] In MCA, the offender was convicted on his pleas of guilty to two counts of indecent treatment of a child under the age of 12 years.  The offender was placed on 18 months’ probation which included the imposition of special conditions.  Convictions were recorded.  The 17 year old offender lived next door to the complainants.  He used a toy stethoscope to touch the five year old complainant girl’s vagina on the inside of her nappy and the three year old complainant boy’s penis under his pyjama pants.  The offender had a documented history of ADHD and Asperger’s Disorder.  He had behavioural difficulties, social difficulties and was likely to have low average intelligence.  The risk of his re-offending was assessed as low, subject to appropriate counselling, interventions and supervision.  The offender was remorseful and had undertaken counselling both before and after the offences.  His application for leave to appeal against sentence was refused.

[40] In my view, several significant factors serve to distinguish the applicant’s case from those of the offenders in SAT and Mirza.  The applicant’s insistent, invasive conduct was quite unlike, and markedly worse, than that of the offender in SAT who did not attempt any penetration or directly touch the complainant’s skin.  In Mirza, the offender’s conduct was at the level of an attempt without touching of the boy’s penis.  In both of those cases, there was no insistence in the face of reluctance on the part of the complainant and no intimation by the offender from which a risk to other under-age persons might have been apprehended.

[41] By contrast, the conduct of the offenders in Kelly and MCA was more invasive and, in that respect, more comparable with that of the applicant.

[42] The applicant has not demonstrated that his sentence is manifestly excessive.

Disposition

[43] Since the proposed ground of appeal has not been made out, this application for leave must be refused.

Order

[44] I would propose the following order:

1. Application for leave to appeal against sentence refused.

[45] MORRISON JA:  I have read the reasons of Gotterson JA and agree with those reasons and the order his Honour proposes.

[46] DAUBNEY J:  I also agree with Gotterson JA.