R v Fahey[2021] QCA 232

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  On 13 April 2021 the applicant pleaded guilty to sexual assault on 11 January 2017 (Count 1: Criminal Code, s 352(1)(a)) and grooming a child under 16 years on various dates between 19 December 2017 and 18 April 2018 with intent to expose the child to an indecent matter (Count 2: Criminal Code, s 218B(2)(b)).  On 11 October 2021 the applicant was sentenced to concurrent terms of six months’ imprisonment on Count 1 and 18 months’ imprisonment on Count 2.  Each term of imprisonment was ordered to be suspended after three months for an operational period of two years.  One day of pre-sentence custody was declared to be time served under the sentences.
2. [2]
   The applicant seeks leave to appeal on the grounds that the sentencing judge failed to take into account the applicant’s rehabilitation and low risk of re-offending, the sentencing judge erred in finding that there were no exceptional circumstances, and the sentence was manifestly excessive in all the circumstances.
3. [3]
   After hearing argument in the application the Court reserved its decision and made the following orders on 18 October 2021:

   1. (1)
      Grant the application for leave to appeal.
   2. (2)
      Allow the appeal.
   3. (3)
      Set aside the sentence and orders for count 1 and instead order that the applicant be convicted and not further punished for count 1.
   4. (4)
      Vary the sentence and orders for count 2 by substituting “1 Year” for “18 Months” as the period of imprisonment, and in the order suspending the term of imprisonment after serving a period of 3 Months imprisonment, substitute “1 Year” for “2 Years”, so that the sentence and orders provide:

“The offender is sentenced to imprisonment for a period of 1 Year.  Order that the term of imprisonment be suspended after serving a period of 3 Months imprisonment; and the offender must not commit another offence punishable by imprisonment within a period of 1 Year if the offender is to avoid being dealt with for the suspended term of imprisonment.

Pursuant to Section 159A of the Penalties and Sentences Act 1992, it is stated that the offender was held in pre-sentence custody for 1 Day between 02/07/2018 – 03/07/2018.  The Court declared that 1 Day of pre-sentence custody be imprisonment already served under the sentence.”

4. [4]
   What follows are my reasons for joining in those orders.
5. [5]
   The applicant was between 51 and 53 years old during the period in which he committed the offences.  The complainant in count 1 (“A”) was 16.  The applicant’s family were friends with A’s family.  The applicant met A when she was 14.  They spoke regularly over social media for some years before the applicant committed the offence.  When A was about 15 the applicant started posting comments on her photos to the effect that she was cute or gorgeous.  On 11 January 2017, when A was 16, she and her sisters were playing a ball game with the applicant.  The applicant grabbed A from behind with one arm placed under her breasts, pulled her onto his lap in the water, and held her against his groin.  A felt the applicant had an erection.  He told her that she was his lucky charm.  A believed the applicant held her against his penis for several minutes before she swam away.
6. [6]
   The complainant in count 2 (“B”) was 11 when she was introduced to the applicant by A’s younger sister, who gave B the applicant’s social media accounts.  B added the applicant on her social media accounts.  B was 12 during the period of four months when the applicant committed count 2 using social media.  Police could recover only some of many messages – sometimes as many as 100 messages a day – exchanged between the applicant and B.  The nature of the messages constituting the grooming offence with respect to which the applicant fell to be sentenced can be illustrated by examples of those that were recovered.
7. [7]
   The applicant sent emojis telling B that she was “sexy, hot, beautiful and pretty”.  He explained what those terms meant.  He told her he wished she was his girlfriend.  He asked “B” for a picture of her in her bra.  When B sent a photo showing her face and a little bit of her bra strap the applicant asked if that was it.  She confirmed that it was only of her face.  The applicant and B frequently sent love heart emojis to each other.  B sent pictures of herself to the applicant.  The applicant called B cute and responded to some of the pictures with love hearts.  He asked B what she was doing.  On one occasion he asked her to conduct a live video of herself over social media.  On other occasions B told the applicant she was going to conduct a live video and the applicant said he would join.  The applicant asked B to contact him over a specified social media application, a feature of which was that messages were not saved.  If B did not respond to the applicant’s messages, the applicant said things like she was clearly too busy for him or she was snubbing him.  In response to messages from B which (by words or initials) communicated “fuck you”, the applicant responded, “you couldn’t handle it” or “if you want”.  In reply to a response by the applicant to similar effect, B sent an emoji that included a finger pointing towards an OK finger sign emoji, to which the applicant responded, “your butt”.  Messages sent by the applicant included “get here now” with an arrow pointing towards his bed, an image depicting a pillow on the applicant’s lap with associated text “you can lay on mine”, and an image of a pillow on the applicant’s lap with the words “My [B] when I sleep”.  In response to a message from B “I suck”, the applicant replied “you should”.  The applicant’s offending ceased in April 2018 after B’s father delivered to police screen shots of an exchange of messages in which B declined the applicant’s request to send him a photo of the cutest knickers she had.
8. [8]
   Victim impact statements spoke of the considerable harm done to the complainants and their families.  The sentencing judge made observations to the following effect.  Although A was assaulted only once, she was particularly fragile and, as the applicant knew, she had previously been hurt by another offender.  A’s parents had thought that the applicant was their friend, the truth was hard to bear, the family unit had been rocked by vicarious trauma and misplaced guilt, and A described a home weighed down by stress, anger and pain.  B felt the untimely loss of her childhood, she was not psychologically equipped to deal with the applicant’s behaviour, and B’s co-operation with the applicant’s grooming of her did not mitigate his crime but instead spoke of the effectiveness of his grooming.
9. [9]
   The applicant voluntarily accompanied police to a police station after police searched his business address on 24 June 2018.  He did not participate in an interview, was arrested and charged, and was held overnight in the watchhouse before being released on bail.
10. [10]
    The matter was first mentioned in Magistrates Court on 3 July 2018.  It was successively adjourned to December 2018.  There was a registry committal for trial on 11 December 2018.  An indictment presented on 27 May 2019 contained four counts.  One count (for which A was the complainant) was in the form of count 1 in the indictment subsequently presented on 13 April 2021.  One count (for which B was the complainant) charged a grooming offence under s 218B(2)(a) of the Criminal Code, for which the charged intent was to facilitate the procurement of the child to engage in a sexual act.  The effect of submissions for the applicant at the sentence hearing and in the present application is that, of the two remaining counts, one count (for which A was the complainant) charged indecent treatment of a child under 16 and the other count (for which A’s younger sister was the complainant) charged the same offence with the circumstance of aggravation that the child was under 12.
11. [11]
    In December 2019 an application by the applicant to sever counts on the 2019 indictment relating to different complainants was rejected and other interlocutory issues were resolved.  (Counsel for the applicant submitted that the applicant brought the severance application upon advice.)
12. [12]
    In May 2020 the prosecutor’s office communicated to the applicant that a plea to a charge in the form of what became count 2 on the 13 April 2021 indictment would be accepted.  Additional interlocutory applications were dealt with towards the end of 2020.  On 4 March 2021 the hearing of pre-recorded evidence of the complainants was listed on 13 April 2021.  On the eve of that hearing, the applicant’s solicitor contacted the prosecutor’s office and confirmed that the applicant would plead guilty to the two counts to which he subsequently pleaded guilty when a new indictment was presented on 13 April 2021.  The matter was adjourned with a view to an application being made for it being listed for sentence.  The applicant’s counsel explained to the sentencing judge that the reason for the delay was that the applicant had come to court for the pre-recording and was not prepared for sentence.  The sentence hearing was ultimately delayed until 11 October to allow time for the applicant to obtain expert reports concerning his offending and risk of future offending.
13. [13]
    The applicant was 56 when sentenced.  He had no prior convictions.  He had been gainfully employed whilst an adult and contributed to society.  Family members and a close friend of the applicant provided references in April 2021 after the applicant had pleaded guilty.  Each of them conveyed that the applicant had disclosed the charges against him and his guilt, spoke highly of the applicant, and expressed opinions to the effect that the applicant was suffering stress, anxiety, or mental health problems when he committed the offences, he was very remorseful and regretful, and he would not re-offend.
14. [14]
    Reports by three psychologists were tendered at the sentencing hearing.  Dr Bowden’s report is dated 8 October 2021.  Dr Bowden considered there was no objective evidence that the applicant was suffering from a diagnosable mental health condition at the time of his offending.  Dr Bowden refers to emotional deprivation of the applicant during his childhood and a very high level of stress and pressure upon him during a long period up to the time he was arrested in 2018.  He considered the applicant had made a legitimate effort to attend to his rehabilitation since being charged with this offending and the applicant demonstrated remorse for the victims of his offending.  Dr Bowden considered the applicant had demonstrated empathy and understanding about how his behaviour could affect B.  He observed, however, that although the applicant was able to demonstrate empathy for A, there was some denial or minimisation about that offending; the applicant essentially denied any sexual motivation or gratification for his wrongful actions, and Ms Addison had noted this was an outstanding criminogenic treatment need.
15. [15]
    Dr Bowden used three methods to assess the applicant’s propensity to re-offend.  Application of one method indicated that the applicant was at a moderate risk, rather than a low or high risk of sexual violence; for such a risk it was suggested a risk management plan, including a mechanism for systemic reassessment of risk, should be developed for the individual.  Under the second assessment method, in which scores reflected five risk ratings, “very low risk” being the lowest rating, the applicant was assessed as having the second lowest risk rating (“below average risk”) for sexual recidivism in adult male sex offenders.  Under the third method of assessment, the applicant was assessed as being in the “low” risk level, which was the second lowest of five levels of risk.  Taking into account all of the information about the applicant’s future risk of reoffending, Dr Bowden considered the applicant’s risk of reoffending was “quite low” but he might require ongoing intervention and benefit from attending a sexual offender program.
16. [16]
    Ms Addison’s report is dated 6 October 2021.  The applicant first consulted her in early August 2021 (which was after Dr Bowden had recommended in July 2021 that the applicant obtain treatment.).  The applicant completed six treatment sessions, with a seventh session scheduled for 7 October 2021.  He presented with symptoms consistent with adjustment difficulties related to his then current legal and personal circumstances.  The applicant had no other mental health issues or diagnoses.  Ms Addison considered the applicant had a longstanding vulnerability with sexual regulation and history of intimacy deficits and relationship difficulties.  Those were key risk factors for committing a sexual offence.  The applicant presented with a high level of commitment to treatment and engaged well.  He had outstanding treatment needs relating to the ongoing management of sexual regulation and attitudes that support sexual offending.  The applicant had a good prognosis.  Ms Addison referred to the applicant’s general social conformity up to the mid-stage of his life, with regular employment, no criminal history, supportive pro-social family members aware of his offending, and motivation to continue treatment.  She anticipated he would require a moderate course of individual treatment to meet the identified needs.  Ms Addison expressed the opinion that the applicant was remorseful.
17. [17]
    Dr Bowden referred more than once in his 8 October 2021 report to the applicant having consulted Ms Marchant from September 2018.  The material supplied by Ms Marchant establishes, as the applicant’s counsel accepted in the hearing in this Court, that the applicant did not consult Ms Marchant until September 2019.  Ms Marchant states in her 6 October 2021 report that the applicant had been consulting her for two years about how he could have his emotional needs met in more positive ways than viewing internet-based pornography and chatting on internet forums.  The nature of what appears to be the same course of consultation is described as an “Employee Assistance Program” in another document signed by Ms Marchant, which refers to the applicant having first accessed that program in September 2019.  Ms Marchant makes it clear in her report that it was not until 30 September 2021 that the applicant disclosed the criminal charges to her.  (Dr Bowden refers in his report to his understanding that this was due to legal advice that the applicant not disclose anything about the offending.)  Ms Marchant considered the applicant had displayed remorse for the harm he had caused to the complainants and their families.
18. [18]
    The applicant supplied letters of apology addressed to A and B together with cheques for $800 as financial assistance for counselling.  A and B did not accept the cheques.
19. [19]
    The first ground of the proposed appeal against sentence is that the sentencing judge failed to take into account the applicant’s rehabilitation and quite low risk of reoffending.  Counsel for the applicant submitted that the suggested errors were apparent in the following extracts from the sentencing remarks:

“Many of the circumstances are recent developments.  The timing and quality suggest a pragmatic approach to minimise your punishment, rather than genuine remorse.  There remains a real risk you would reoffend if the opportunity presents …

…

You engaged a forensic psychologist for the court report and you did a six session sexual offender program.

…

[I interpolate that in this section of the remarks the sentencing judge referred to the applicant’s letter of apology to the victims, to him sending them cheques which they rejected, and to those all being matters that “can be considered, but there is an overall flavour of ticking boxes.”]

…

The risk assessment of Dr Bowden has been pressed.  The opinion is not that you pose no risk.  It is that the risk is below average risk for sex offenders. …

Mr Jones contends that a lot of confidence can be taken from the progress towards rehabilitation.  Of course, the absence of other offending is relevant.  At the same time, the amount of time that has passed since your arrest was the result of your approach to this matter.

You cannot be further punished for exercising your right to explore your options, but positive cooperation is what is relevant.  The main value of your plea was sparing the victims from the cross-examination, although they did have the stress of anticipating that cross-examination for a long time.  The absence of reoffending after a lengthy passage of time can be strong mitigation where the delay is not attributable to the offender.  That is not the case.  The length of time was caused by the exercise of your rights.  Further, your offending only stopped in 2018, and only because it was exposed.  Since then, you have been on bail conditions.  It would be contrary to the public policy to reward delay in a way that would tend to discourage others from early cooperation.”

20. [20]
    I do not accept the applicant’s submission that, in circumstances in which the sentencing judge referred to the six sessions the applicant had completed with Ms Addison but made no reference to the years of counselling he had undertaken with Ms Marchant, it could not be inferred that the sentencing judge had regard to Ms Marchant’s report and letter.  In relation to the present topic, Ms Marchant’s report was less relevant than Dr Bowden’s report because the applicant did not disclose his offending to Ms Marchant until 30 September 2021 and her treatment was not directed to potential reoffending.  Furthermore, during the sentence hearing, the sentencing judge acknowledged that the applicant had been obtaining advice from a psychologist for his depression and counsel for the applicant specifically referred the sentencing judge to Ms Marchant’s report.
21. [21]
    Nor do I accept the applicant’s submission that the sentencing judge gave little or no weight to the progress of the applicant’s rehabilitation on the basis that the applicant had caused delay in the finalisation of the proceedings.  The concluding paragraph of the quoted sentencing remarks was instead directed to the conclusion that this was not a case in which there should be “strong” mitigation on the footing that there was an absence of reoffending during a lengthy period of delay that was not attributable to the offender.^[1]
22. [22]
    Subject only to an issue about the applicant’s remorse, the applicant’s submission that the sentencing judge mischaracterised the applicant’s risk of further offending or failed to take into account his significant rehabilitation efforts also should be rejected.  The sentencing judge could not be expected to set out each of the expressions of opinion and assessments by Dr Bowden.  It is apparent that her Honour familiarised herself with his report.  Upon each method of assessment employed by Dr Bowden, the applicant was found to be at risk of reoffending and the degree of risk was assessed to be at the second lowest of the available ratings.  In these circumstances, the sentencing judge’s reference to Dr Bowden’s opinion that the risk of reoffending was below average for sex offenders was accurate and not rendered misleading by absence of reference to the other expressions of risk by Dr Bowden.
23. [23]
    Consistently with the sentencing remarks, and as the psychologists’ reports convey, the question whether the applicant was remorseful for having committed the offences is one of the matters that bears upon the extent of his rehabilitation and the related risk that he would reoffend.  At the sentence hearing the applicant’s counsel submitted in writing and orally that the applicant had demonstrated remorse by pleading guilty and in other ways.  The sentencing judge’s remark that the “main value” of the applicant’s pleas of guilty was that they spared the victims from cross-examination implies that there was some other mitigating benefit in the pleas, but no statement in the sentencing remarks conveys that the sentencing judge accepted or took into account to any extent in sentencing the applicant that he was remorseful for his offending.  Against that background, the sentencing judge’s references to the applicant’s “pragmatic approach … rather than genuine remorse” and “an overall flavour of ticking boxes” convey that the sentencing judge sentenced the applicant upon the footing that he was not remorseful to any material extent.
24. [24]
    In Cameron v The Queen^[2] Gaudron, Gummow and Callinan JJ discussed the significance of a plea of guilty:

It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence.  In Siganto v The Queen [(1998) 194 CLR 656 at 663-664 [22], per Gleeson CJ, Gummow, Hayne and Callinan JJ] it was said:

“a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial.  The extent of the mitigation may vary depending on the circumstances of the case.”

It should at once be noted that remorse is not necessarily the only subject matter revealed by a plea of guilty.  The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.

…

Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.”

25. [25]
    The potential importance of a plea of guilty is reflected in obligations imposed upon sentencing judges by s 13 of the Penalties and Sentences Act 1992 (Qld).  Section 13 of that Act makes it mandatory to take a guilty plea into account when imposing a sentence and it confers a discretion upon sentencing judges to reduce the sentence that otherwise would have been imposed had the offender not pleaded guilty.  The section provides that such a reduction may be made having regard to the time at which the offender pleaded guilty or informed the relevant law enforcement agency of his or her intention to plead guilty.  The section also makes it mandatory for sentencing judges when imposing sentence to state in open court that account has been taken of the guilty plea in determining the sentence imposed; and where such a sentence is not reduced on account of the guilty plea, the sentencing judge must state in open court that fact and the reasons for not reducing the sentence.
26. [26]
    There were grounds upon which each item of evidence of remorse might reasonably be discounted, but in my respectful opinion the evidence as a whole does not support the view that when the applicant was sentenced he was not remorseful to any material extent.  The value of the applicant’s plea of guilty as evidence of remorse is in this case fortified, not merely by the references and the applicant’s letters of apology and offers of compensation, but more substantially by the psychologists’ evidence of the applicant’s engagement in his treatment and progress in his rehabilitation.  I accept, however, that the evidence does not justify a finding that the applicant demonstrated full or early remorse for all of his offending.
27. [27]
    By way of explanation for the applicant’s delay in pleading guilty, counsel for the applicant referred to Ipp J’s well known statement in Atholwood v The Queen:^[3]

“Where the prosecution has charged an offender with several counts and after a process of negotiation the offender pleads guilty to only some of them and the prosecution withdraws the others, all the relevant circumstances have to be examined with care in order to establish the credit to which the offender is entitled. It is particularly important in such circumstances to establish the time when it could first be said that it was reasonably open to the offender to plead guilty to the offence of which he was convicted. Regard should be had to the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him. During the period that the prosecution maintains counts that are ultimately abandoned, there is a strong incentive for a person who recognises his guilt on other counts … to persist in a not guilty plea to all counts. In such circumstances it should not be assumed, mechanically, that the offender has delayed pleading guilty because of an absence of remorse, or that, reasonably speaking, he has not pleaded guilty at the earliest possible opportunity.”

In Cameron v The Queen,^[4] Gaudron, Gummow and Callinan JJ set out that passage and observed that it reflected what had earlier been said about the rationale for a plea of guilty being taken into mitigation that, in addition to remorse and acceptance of responsibility, the operative consideration was willingness to facilitate the course of justice.  Their Honours observed that “the issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice” and “a significant consideration on that issue is whether the plea was entered at the first reasonable opportunity”.

28. [28]
    The prosecution had communicated in May 2020 that a plea of guilty to count 2, as it was ultimately formulated, would be accepted.  Whilst the applicant pleaded guilty on 13 April 2021 when the new indictment charging only counts 1 and 2 was presented, it appears that the applicant gave instructions to prepare for the hearing of the complainants’ pre-recorded evidence in April 2021.  Thus, as late as a few months short of three years after the applicant was charged, and some 11 months after the prosecution had communicated that it would accept a plea of guilty to count 2 as it was ultimately formulated, it appeared that there would be a trial in which the complainants’ credibility would be in issue.  The applicant did not adduce evidence explaining why he had not indicated that he would plead guilty much earlier than he did.  There is no basis for thinking that the matter could not have been resolved by mid-2020 in the way in which it was ultimately resolved in April 2021.  In the absence of any indication that the applicant would plead guilty, the prospect that the complainants would have to give contested evidence at a trial hung over them for a very long time before the applicant ultimately pleaded guilty in April 2021.  It may be accepted that a significant consideration upon the issue as to the extent to which the applicant’s pleas of guilty were indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice is that they were not entered at the first reasonable opportunity to enter those pleas in about mid-2020.
29. [29]
    Furthermore, as late as 24 May and 4 June 2021, the dates when Dr Bowden states he conducted interviews with the applicant, the applicant appeared to be engaging in some denial or minimisation about count 1, which had been noted by Ms Addison to be a criminogenic treatment need.  That fact, coupled with the fact that the applicant apparently did not disclose his offending to any of the psychologists before he disclosed it to Dr Bowden in mid-2021 after he had pleaded guilty in mid-April 2021, supplies a basis for some scepticism about the depth of the applicant’s remorse.
30. [30]
    In my respectful opinion, however, the applicant should have been given credit for the remorse that was demonstrated by his pleas of guilty in April 2021 and the evidence I have mentioned.
31. [31]
    The respondent submitted that the circumstance that the sentencing judge suspended the sentence on count 2 after only one-sixth of the term of the head sentence suggests that appropriate credit was given for the applicant’s plea of guilty.  The submission implicitly refers to the sentencing practice of fixing a parole date or suspending a sentence after a relatively short period, most commonly one-third of the term, to take into account a plea of guilty and associated factors such as remorse.  That common sentencing practice is not a constraint upon the sentencing discretion.^[5]  Mitigating factors may in appropriate cases be taken into account in either or both of the term of imprisonment and the period required to be served in actual custody.  Where an error in the sentencing process appears on the face of the sentencing remarks and the material before the sentencing judge, the error cannot be disregarded by reference to an unverifiable assumption that the sentencing judge adopted an available sentencing methodology.  The sentencing judge’s rejection of remorse as a material factor in the sentence was a specific error in the sentencing process.  The Court is not to assess whether that error influenced the sentence imposed by the sentencing judge.  The Court is instead obliged to consider afresh the appropriate sentence in the independent exercise of its sentencing discretion.^[6]
32. [32]
    Count 2 charges an offence of a sexual nature which was committed in relation to a child under 16 years.  Accordingly, s 9(4) of the Penalties and Sentences Act 1992 has the following effects in sentencing the applicant for count 2:

    1. (1)
       The principles in s 9(2)(a), that a sentence of imprisonment should only be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable, do not apply.
    2. (2)
       The applicant must serve an actual term of imprisonment unless there are exceptional circumstances.
33. [33]
    Section 9(5) provides that in deciding whether there are exceptional circumstances, the court may have regard to the closeness in age between the offender and the child.  Section 9(6) sets out matters to which the court must have primary regard.
34. [34]
    The applicant argues that exceptional circumstances are established by the combination of various matters.  I will discuss each relevant matter.  The absence of any description of the indecent matter which the applicant intended to expose to B requires this example of the offence to be regarded as low level offending in that respect.  That is not to say, however, that the offence is not inherently serious.  There were serious features of count 2, particularly the large gap in age between the applicant and B, B was only 12 years old, the offence was committed during a period as long as four months, (as the sentencing judge observed) the applicant’s messages displayed overt flirtation, frequent exchange of love emojis, sexual comments, provocative invitations, and repeated expressions of interest in acts of sexual penetration, and some of the applicant’s messages are plainly manipulative in character.
35. [35]
    The applicant’s remorse is a mitigating factor.  It must also be borne in mind, however, that the applicant’s offending in count 2 was not voluntarily ended by him but brought to an end only by the discovery of it by B’s father, and the evidence does not justify a finding that the applicant was remorseful to any significant extent until a long time after he was charged.  It is to the applicant’s credit that he took significant steps towards rehabilitation after pleading guilty, but it also must be borne in mind that he did not embark upon rehabilitation relating specifically to sexual offending until a long time after he was charged.  The fact that his risk of reoffending has been assessed by a psychologist as being quite low is another relevant consideration, but that is not unusual or exceptional for an offence of this kind.  Whilst it is significant for the sentence that the applicant had no prior convictions, that too is not unusual in offending of a sexual nature against children.  Furthermore, whilst s 9(4) of the Penalties and Sentences Act 1992 does not apply in relation to count 1, it is relevant that when the applicant committed count 2 he was not in the position of an offender who had not committed any previous offence of a sexual nature against a young person.
36. [36]
    Each of the circumstances that the applicant was otherwise of good character, had made contributions to the community, and had a good history of working, is also not unusual in a case of this kind.  The evidence in Dr Bowden’s report that the applicant suffered from vulnerabilities resulting from trauma in his childhood and was under great stress in a very unhappy marriage is relevant, but it must be assessed in the context that there was no evidence that he suffered from any diagnosable mental health condition that might have contributed to his offending.  The applicant also relied upon the great damage to the applicant’s reputation resulting from him being charged with the offences and the circumstance that the sentence would trigger onerous obligations under the Child Protection (Offender Reporting and Offending Prohibition Order) Act 2004 (Qld).  Those are commonplace consequences of sexual offending against children.
37. [37]
    The matters upon which the applicant relies are relevant but, assessed in the context of all of the relevant circumstances of count 2, neither individually nor in combination do those matters justify a finding that there are exceptional circumstances such as to permit a non-custodial sentence for the applicant’s offending of a sexual nature committed against a 12 year old child.
38. [38]
    In relation to this topic the applicant referred to R v GAW,^[7] in which the Court held to be manifestly excessive a sentence of 10 months’ imprisonment suspended after five months for an operational period of three years imposed upon a mature offender who was convicted of an offence of indecent treatment of a child under 16, who was in his care.  The maximum penalty for that offence with that circumstance of aggravation was 20 years’ imprisonment.  For the applicant’s offences, the maximum penalties are 10 years’ imprisonment for count 1 and five years’ imprisonment for count 2.  The offender had lifted his 13 year old stepdaughter’s skirt to see the underpants she had purchased with him earlier in the day and then grabbed her in the buttock area on the outside of her underwear.  Philippides JA described his offence as “a brief single occasion of touching”.  That occurred in the family home and the offender did not follow the complainant when she returned to her bedroom.  McMurdo P and Holmes JA (as the Chief Justice then was) considered that the low level of that offending, combined with the absence of prior or subsequent sexual offending and the fact that it was a single episode, made it open to conclude that there were exceptional circumstances under s 9(4) of the Penalties and Sentences Act 1992. Their Honours held that a term of actual imprisonment need not have been imposed and that, but for certain intervening circumstances, a sentence in the range of six months’ imprisonment suspended forthwith for a 12 month operational period would have been appropriate.
39. [39]
    R v GAW does not support the applicant’s argument that there are exceptional circumstances in relation to count 2, which was committed against a 12 year old girl and the commission of which occupied four months and occurred after the applicant had committed the offence in count 1.  There being no exceptional circumstances, a sentence for count 2 requiring actual custody is mandatory and the principles in s 9(2)(a) of the Penalties and Sentences Act 1992 do not apply.
40. [40]
    The applicant’s offending in count 2 is also not similar to the offending in R v Theohares,^[8] in which the offender entered early pleas of guilty to two counts of indecent treatment of a person under 16 years (for which the maximum penalty was 14 years’ imprisonment), was remorseful, and was found not to be in need of rehabilitation.  That offender (who was 75 when sentenced) had grabbed and repeatedly tapped the complainant’s buttocks with an open hand after inviting her behind the counter of a shop where he was preparing takeaway food for her.  In addition, that offender hugged the complainant and cupped her breast outside of her clothing with both hands.  After having been interrupted by someone entering the store, the offender asked the complainant to leave the area behind the counter, which she did, and he repeatedly told her not to tell anyone.  It was held 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.  In substitution for sentences of nine months’ imprisonment suspending after serving two months, for an operational period of 18 months, the Court imposed a sentence of six months’ imprisonment suspended forthwith, with an operational period of nine months.  Such guidance as may be derived from the decision in Theohares in relation to count 2 is consistent with a sentence for that count including actual imprisonment of three months.
41. [41]
    The applicant’s argument that there are exceptional circumstances also does not derive assistance from the decision in R v Thompson^[9] in which the court found there were exceptional circumstances, set aside a sentence of four months’ imprisonment with two years’ probation, and instead imposed imprisonment of 105 days (which that offender had served before the appeal was allowed) and ordered the release of the offender on probation for one year.  That offender was convicted of one count of grooming a child with intent to procure, for which the maximum penalty is also five years’ imprisonment.  The important distinguishing features are that, whilst the text messages that 45 year old offender sent to a 14 year old girl were much more sexually explicit than the messages in the present case, the period of grooming was some weeks (rather than months), that offender participated in a police interview and made admissions when police attended his address and found messages on his phone, his plea was entered on the unusual and uncontested basis that he did not believe that the complainant was in fact 14 years old but accepted he could not discharge the onus that he believed on reasonable grounds that she was at least 16, he suffered a retributive assault which injured his cheek bone and eye socket and which was motivated in part because of his offending, he co-operated with authorities, he entered an early plea of guilty, and in the period of about 17 months between the offending and when he was sentenced he had of his own volition engaged in rehabilitation with his treating psychologist.
42. [42]
    The circumstances of R v Campbell^[10] and R v Hays^[11] are too different from the circumstances of this matter for those decisions to supply guidance about the appropriate sentence for either of the offences of which the applicant was convicted.  In R v Rogers,^[12] to which counsel for the applicant referred, two counts of using an electronic communication with intent to expose indecent matter to a child under 16 were committed by a man aged 20 who sent explicit photographs of himself to his 14 year old girlfriend.  That offender had indicated at an early stage his intention to plead guilty, he was remorseful, and he had an intellectual capacity that was below average.  His sentence of three years’ probation, with an order that no conviction be recorded being made on appeal, does not indicate that a custodial sentence is not appropriate in the different circumstances of the present case.
43. [43]
    In relation to count 1, the respondent relied upon R v Quinlan,^[13] in which the Court did not disturb a sentence of six months’ imprisonment, suspended after seven weeks for an operational period of 12 months.  The 56 year old offender was driving his taxi when he briefly squeezed his 25 year old passenger’s breast.  The offender pleaded not guilty and the sentence was imposed after a trial.  The Court expressed some concern about the length of the term of imprisonment but concluded that the sentence was within the sentencing discretion.  Some significant factors taken into account in that factually different case are not applicable here, particularly that offender’s inability to claim the benefit of any remorse or a plea of guilty.
44. [44]
    Count 1 involved an offence which, whilst inherently serious, involved no skin on skin contact, occupied only a very short period of time, and was not sought to be persisted in after A moved away from the applicant.  Because count 1 did not charge an offence against a child under 16 years, in sentencing for this count the Court must have regard to the sentencing considerations expressed in s 9(2) of the Penalties and Sentences Act 1992, including the principles expressed in s 9(2)(a) that a sentence of imprisonment should only be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable.  It is also relevant that when the applicant committed the offence in count 1, he had no history of committing criminal offences and he was otherwise of good character.  Having regard to the circumstance that, unlike count 1, the offences for which the sentences were imposed in R v GAW and R v Theohares were committed against a child under 16, those decisions support the conclusion that the sentence for count 1 should not include any component of actual custody.  If it were necessary to impose a sentence upon count 1 alone, the appropriate sentence would be a wholly suspended term of imprisonment.  Such a sentence would be practically ineffective because the sentence on count 2 must impose a longer term of imprisonment and include a period of actual imprisonment.  Such a sentence structure has little to recommend it and it has the potential to create difficulties in the unwanted event of the applicant breaching a condition of the suspended sentence and the matter again coming before a sentencing court.
45. [45]
    A better approach here is to adopt the available sentencing methodology of taking into account in the sentence for count 2 the criminality both in that count and in count 1, and correspondingly imposing no additional punishment on count 1.^[14]  In relation to the sentence on count 2, neither party submitted that the sentencing judge erred in ordering suspension rather than parole eligibility,^[15] presumably because of the likelihood that fixing a parole eligibility date would prove to be ineffective in light of the notorious inability of the Parole Board in recent times to make timely decisions upon applications for parole.^[16]
46. [46]
    In the circumstances, an appropriate sentence for count 2 is 12 months’ imprisonment suspended after three months for an operational period of one year.
47. [47]
    McMURDO JA:  Substantially for the reasons which Fraser JA has given, I joined in the orders made by the Court on 18 October 2021.
48. [48]
    MULLINS JA:  I agree with Fraser JA.