R v Theohares[2016] QCA 51

SUPREME COURT OF QUEENSLAND

1. HOLMES CJ:  I agree with the reasons of Philippides JA and the orders she proposes.
2. PHILIPPIDES JA: Background The applicant sought leave to appeal against concurrent sentences of nine months imprisonment, suspended after serving two months and for an operational period of 18 months, imposed on 7 September 2015 on his pleas to two counts of indecent treatment of a child under the age of 16.  On 23 September 2015, the applicant obtained bail pending the outcome of this application.  He had by then served 17 days in custody.
3. The grounds of appeal are:
   1. The sentences were manifestly excessive.
   2. The learned sentence judge erred in finding that the circumstances could not amount to exceptional circumstances within the meaning of s 9(4) of the Penalties and Sentence Act 1992 (Qld) (the Act).^[1]
   3. The learned sentence judge erred in finding that the circumstances did not amount to exceptional circumstances within the meaning of s 9(4) of the Act.^[2]
4. On 19 February 2016, the application was heard by this Court, which made the following orders, with reasons reserved:
   1. The application for leave to appeal is allowed.
   2. The appeal is allowed.
   3. In relation to each count, the sentence imposed at first instance is set aside and in substitution for it this Court imposes a sentence of 6 months imprisonment, suspended forthwith, with an operational period of 9 months.  To put it beyond doubt, the date from which that sentence commences is the 7th of September 2015 and it is declared that the appellant has served 17 days out of that sentence.
5. What follows are my reasons for joining in the orders made.

Circumstances of the offences

6. The applicant was the owner of a fast food takeaway store, located near the complainant’s grandmother’s house.  Prior to the offences the complainant had attended the applicant’s store on two occasions, once with her grandfather and once on her own.  On the first occasion, the applicant asked the complainant how old she was.  When informed that she was 12, the applicant commented that the complainant looked older than she actually was.  On the second occasion, approximately a week prior to the offence when the complainant visited the applicant’s store by herself, the applicant told the complainant “you’ve got such a stern (or firm) body for your age”.  The complainant was standing at the counter during the conversation and the applicant kept grabbing her arm and squeezing it.
7. On 18 December, the complainant’s grandmother sent the complainant to the applicant’s store to buy lunch.  By the time the complainant was placing her order, there was no one else in the store.  The applicant asked the complainant to “come over for a hug” to which she replied, “OK”.  He then reached over the counter and hugged her.  He then invited her behind the counter where he asked her to hug him again.  When the complainant complied on the second occasion, the applicant grabbed the complainant’s buttocks.  He then let go of the complainant and said “I’m so happy to see you again”.  He then hugged the complainant and again cupped her buttocks in his hands.  The applicant asked the complainant if she was hungry.  The complainant replied that she wanted a burger.  The applicant said “sure” and tapped the complainant’s buttock with an open hand.  While making the burger, the applicant continued to tap the complainant on the buttocks.  In total he did it about five times.  (This constituted count 1.)
8. A delivery driver then arrived at the shop and spoke to the applicant.  After the delivery driver left the store, the applicant hugged the complainant again, cupping her right breast, outside of her clothing with both his hands.  He looked at the complainant’s breasts and commented on her shirt.  The applicant ceased his conduct when the delivery driver re‑entered the store.  (This constituted count 2.)
9. The applicant then asked the complainant to exit the area behind the counter.  She did so and immediately went to complain to her mother.  On a number of occasions during the events in question, the applicant told the complainant, “don’t tell anyone because you know people don’t understand, they think I’m weird because you’re 12”.
10. When apprehended by police, later that day, the applicant admitted to hugging the complainant but made no mention of any other touching.  He also made comments suggesting that he did not perceive that he had done anything wrong, although others might consider it wrong.
11. On 12 January 2015, the applicant was charged with one count of indecent treatment of a child under 16.  The matter proceeded on 16 April 2015 by way of a “full hand-up” committal hearing without cross examination, at the conclusion of which, a plea of guilty was placed on the record and the applicant was committed for sentence.^[3]  On 26 August 2015, an indictment charging the applicant with two counts of indecent treatment of a child under 16 was presented.  The applicant appeared and entered pleas of guilty.  The matter was then listed for sentence, which took place on 7 September 2015.

Sentencing remarks

12. In imposing sentence, the sentencing judge stated that the offending involved a serious matter.  He noted that the applicant was genuinely remorseful and that he was not in need of rehabilitation.  His Honour then made the following sentencing remarks:^[4]

“The legislature has gradually increased maximum sentences and further curtailed discretions by reasons of this notion or concept of exceptional circumstances.

I have to point out to you that, if I’m not satisfied that exceptional circumstances have been established, the position is that you must spend some time in custody… and I’ve come to a clear opinion on the point as to whether exceptional circumstances can be said to arise in this particular case.

… I cannot be satisfied, given the paucity of circumstances in this case, that exceptional circumstances have been established.  In that event, given this restriction on the Judge’s sentencing discretion, it follows that you must spend some time in actual custody.  I regret it in your case actually, but it has to follow.  But the sentence will be kept as low as possible and leniency, as much as is possible, will be extended to you in your very distressed circumstances which I’m now witnessing as you stand there in the dock.

Based on the other cases that I’ve looked at, it should be a nine-month sentence.  The rule of thumb, they call it, on a sentence such as that is that the offender must serve three months imprisonment.  I’m going to reduce that to two months imprisonment …

…  In my view, if you have low-level offending and where other factors don’t satisfy exceptional circumstances, a period of time in actual custody which is brief nevertheless is one that cannot be opposed simply because of its brevity and that’s the view that I hold in relation to that.”  (emphasis added)

13. His Honour then outlined the circumstances of the offending and referred to various considerations of relevance.  His Honour observed that, even though the offending was of a comparatively low level, there was a need for general deterrence.  Although there was no victim impact statement, it could be inferred that the complainant had experienced some emotional disturbance.  The applicant’s early pleas had saved the complainant from being required to give evidence.  The applicant had no criminal history.  He was 74 at the time of the offending and 75 at sentence and had health issues.  His Honour referred to the applicant’s work history and impressive references and his family circumstances, which involved the loss of a young daughter which had continued to impact on him.

Relevant provisions of s 9 of the Act

14. Sections 9(4), (5) and (6) of the Act relevantly provide:

“(4)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.

(5)For subsection (4), in deciding whether there are exceptional circumstances, a court may have regard to the closeness in age between the offender and the child.

(6)In sentencing an offender to whom subsection (4) applies, the court must have regard primarily to—

1. the effect of the offence on the child; and
2. the age of the child; and
3. the nature of the offence, including, for example, any physical harm or the threat of physical harm to the child or another; and
4. the need to protect the child, or other children, from the risk of the offender reoffending; and
5. the need to deter similar behaviour by other offenders to protect children; and
6. 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
7. the offender’s antecedents, age and character; and
8. any remorse or lack of remorse of the offender; and
9. any medical, psychiatric, prison or other relevant report relating to the offender; and
10. anything else about the safety of children under 16 the sentencing court considers relevant.”

Was there error in the exercise of the sentencing discretion such that it miscarried?

Error in approaching the sentencing discretion as a two-step process

15. Before turning to the grounds of appeal as outlined in the Notice of Appeal, it is appropriate to deal with a matter which, though not raised as a distinct ground of appeal, was the subject of submissions on the hearing of the application.
16. It concerned whether the sentencing judge erroneously approached the sentencing discretion as if a two stage process was to be undertaken, with the question of whether exceptional circumstances existed to be considered before a determination of the sentence to be imposed.  It is apparent from the sentencing remarks, extracted above, that his Honour adopted the approach of first considering whether exceptional circumstances existed.  Having concluded, to his regret, that they did not, so that a period of actual custody was required to be served, his Honour then indicated that “the sentence will be kept as low as possible”.
17. This approach taken by the sentencing judge was contrary to what was stated in R v Tootell; Ex parte Attorney-General (Qld)^[5] and reiterated in R v BCX^[6] as the correct sentencing process.  It was observed in BCX that:^[7]

“… a finding whether exceptional circumstances exist is but one part of the overall process of ‘instinctive synthesis’ discussed by McHugh J in Markarian v The Queen whereby each of the factors relevant to the sentence are identified and then weighed before a value judgment is made as to a sentence which is, in all of the circumstances of the case, appropriate.”  (citations omitted)

18. Sentencing under s 9(4) of the Act requires an integrated approach which takes into account all of the circumstances of the case, having regard to s 9(5) and the circumstances specified in s 9(6) of the Act.^[8]  The sentencing judge’s approach, in adopting a two stage process, proceeded on an error in principle as to the exercise of the sentencing discretion under s 9(4) of the Act.
19. I turn to the three grounds of error raised by the applicant in his Notice of Appeal.

Manifestly excessive sentence? (Ground 1)

20. The applicant submitted that the sentences imposed were manifestly excessive and contended for a sentence of four to six months’ imprisonment suspended forthwith.  I agree that sentences of nine months’ imprisonment suspended after two months were manifestly excessive.  That is particularly evident when regard is had to R v GAW^[9] and BCX.^[10]
21. The offending in GAW concerned the lifting of a 13 year old complainant’s skirt by her stepfather to see her underpants which had been purchased earlier in the day.  He grabbed or “groped” one of her “arse cheeks” on the outside of her underpants for a short time.  A sentence of 10 months’ imprisonment suspended after five months and operational for three years was set aside on appeal and in lieu thereof a sentence of three months’ imprisonment was imposed (which the offender had already served by the time of the appeal).  As the Crown conceded, there were aggravating features to the offending in GAW which are not present in this case.  GAW breached the position of trust he held as the complainant’s stepfather and the offending occurred while the complainant was in his care in the family home, which the complainant subsequently left to live with her grandmother.  Further, the offender did not have the benefit of having entered a plea.  Nor did he have the benefit of prior good character; he had a prior criminal history (albeit not for sexual offending).  By contrast, in the present case, the applicant entered very early pleas, which obviated the need for the complainant to give evidence.  There was no position of trust breached by the applicant, who had a prior unblemished history.
22. BCX concerned more serious offending than in the present case.  The complainant was the nine year old daughter of the offender’s partner.  The offender entered the bedroom of the complainant at night while she was asleep.  He moved her clothing aside and took some eight photographs of her breasts and genitalia on his mobile phone (which was the subject of a count of making child exploitation material).  Two of the images depicted the applicant’s fingers spreading the complainant’s labia apart (which were the subject of two counts of indecent treatment of a child under the age of 16 with a circumstance of aggravation in that the child was under the age of 12).  The sentences of 18 months’ imprisonment suspended after six months for an operational period of two years imposed on each of the two counts of indecent treatment were varied by suspending them forthwith (the offender having already been in custody for three months and three weeks).  The fact that the offender suffered from mental disorders was a matter of some significance.  The offender shared some similarities with the applicant, in that he was remorseful, had no prior criminal history, there was a full hand up committal and early pleas.  However, the offending in the present case was of a significantly lower level than that in BCX and occurred on the one day.  It did not have the additional circumstance of aggravation that the child was under 12 years of age.

Error as to whether exceptional circumstances were raised and should have been found to have been established (Grounds 2 and 3)

23. The second and third grounds of appeal concern whether the sentencing discretion miscarried because the sentencing judge proceeded on an erroneous basis in determining whether exceptional circumstances within the meaning of s 9(4) of the Act could be made out (ground 2) and whether they should have been found to have been established (ground 3).
24. As to ground 2, it was contended that error was reflected in his Honour’s statement that, “… if you have low level offending and where other factors don’t satisfy exceptional circumstances”, a period of actual custody was required by s 9(4).  The applicant argued that this reasoning was contrary to what was stated in GAW.  In making that submission, the applicant relied on the judgments in GAW as indicating that low level offending may, in the circumstances of a particular case, amount to exceptional circumstances pursuant to s 9(4).  The applicant placed specific reliance on the following passages of the plurality in GAW:^[11]

“[3]… Even so, given the low level of the offending; and that the appellant had no prior or subsequent history of sexual offending; and that this was an isolated incident; it was open to the primary judge to conclude that, under section 9(4) Penalties and Sentences Act 1992 (Qld) there were exceptional circumstances.  These were the low level of the offending, combined with the absence of prior or subsequent sexual offending and that it was a single episode.  It follows that a term of actual imprisonment need not have been imposed.

[4]A sentence in the range of six months imprisonment suspended forthwith with a 12 month operational period would have been appropriate had the appellant been sentenced after his conviction on 20 August 2014.”

25. The applicant also placed specific reliance on the following dicta in my reasons in GAW:^[12]

“[66]It may well be that indecent dealing of an exceptionally low level in the circumstances of another case points to it being able to be categorised as exceptional.  However, I do not consider that the mere circumstance that the touching was of a low order of offending, warrants that conclusion in this case, given the additional combination of circumstances also present.  The offence was committed by a man of mature years, who had previously served a custodial sentence (although not for sexual offending) and could not claim the benefit of past good character.  Moreover, the appellant took advantage of his position of trust towards his stepdaughter, the offending occurred in the family home where the complainant was entitled to feel safe and which, in the aftermath of the offending, the complainant left.”

26. The applicant was correct to rely on the extracted passages in GAW as authority for the proposition that low level offending may, in the circumstances of a case, indicate that exceptional circumstances were established.  That proposition was reiterated in BCX.^[13]  In proceeding on a contrary basis, the sentencing judge fell into error.
27. The applicant also argued that the sentencing judge erred in finding that “given the paucity of circumstances”, exceptional circumstances could not be said to have arisen in this case.  The applicant submitted that there were a myriad of circumstances which compelled a finding of exceptional circumstances.  In that regard, it was contended that the applicant’s lack of prior history, early guilty plea, genuine remorse, age and health issues, combined with the extremely low level of the offending were sufficient to compel a finding of exceptional circumstances.  The applicant was correct in his submissions.  When the very low level of offending is considered in the circumstances referred to, it cannot be said that this was a case where reasonable minds could differ as to the existence of exceptional circumstances; they were clearly established.

Exercise of the sentencing discretion afresh

28. Given there was error which caused the sentencing discretion to miscarry on the bases outlined, this Court must exercise the sentencing discretion afresh.
29. Sexual offending against a child is a serious matter.  The offending in this case was, however, of a very low level and occurred on a single day and within a short time frame.  It is also pertinent to refer to the following relevant considerations.  As the sentencing judge accepted, the applicant was extremely remorseful for his behaviour.  The applicant’s pleas of guilty saved the complainant from being required to give evidence, were entered at the earliest possible time and, indeed as the applicant’s counsel stated, obviated the need for the Crown to confer with the complainant.  Fortunately, the complainant does not appear to have suffered serious consequences as a result of the offending.
30. The applicant has been on bail since 12 January 2015.  His bail conditions initially required him to report seven days a week.  That was reduced to three days a week in March 2015 and further reduced to one day a week after the committal hearing.  The applicant has complied with all conditions of bail with no breaches alleged.  The applicant’s conduct while on bail, his lack of criminal history, his prior good character and good work history and references, indicate excellent prospects of continued rehabilitation and a very low risk of reoffending.  The need for personal deterrence does not feature in this case.
31. In my view, sentences of six months’ imprisonment suspended forthwith and operational for nine months were appropriate to reflect the gravity of the offending, while also recognising that it was very low level offending, by a man of advanced years with health problems, who had no prior history, was genuinely remorseful and had cooperated by proceeding by way of a full hand up committal and entering early pleas.  Those sentences reflect, as already explained, that when the low level of the offending is considered in all the circumstances of the case, exceptional circumstances were established and no actual custodial sentence was called for.
32. PHILIP McMURDO JA:  I agree with Philippides JA.