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R v Thompson[2021] QCA 29

SUPREME COURT OF QUEENSLAND

CITATION:

R v Thompson [2021] QCA 29

PARTIES:

R

v

THOMPSON, Robert Francis John

(applicant)

FILE NO/S:

CA No 46 of 2020

DC No 54 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maryborough – Date of Sentence: 5 February 2020 (Reid DCJ)

DELIVERED ON:

2 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

19 November 2020

JUDGES:

Philippides and Mullins JJA and Williams J

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 14 counts, including 13 offences of a sexual nature and one offence of attempting to pervert the course of justice – where the sentence imposed on count 2 was twelve years imprisonment for maintaining a sexual relationship with a child – where the applicant submits that the sentence imposed on count 2 is manifestly excessive because it is plainly unjust and unreasonable in all the circumstances and it does not adequately reflect the applicant’s pleas of guilty – whether the sentence imposed on count 2 is manifestly excessive

R v BBY [2011] QCA 69, considered

R v L [2002] QCA 377, considered

R v Quinn [2018] QCA 144, considered

R v WBG [2018] QCA 284, considered

R v ZA; Ex parte Attorney-General (Qld) [2009] QCA 249, considered

COUNSEL:

G Elmore for the applicant
D Nardone for the respondent

SOLICITORS:

Ashkan Tai Lawyers for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    PHILIPPIDES JA:  I agree for the reasons stated by Williams J that the application for leave to appeal should be refused.
  1. [2]
    MULLINS JA:  I rely on [27] to [39] of Williams J’s reasons and will not repeat their content in setting out my reasons for proposing to grant the application and allow the appeal by reducing the sentence for count 2 from 12 years’ imprisonment to 11 years’ imprisonment.

The applicant’s antecedents

  1. [3]
    In addition to what Williams J has set out at [36] and [37] of her Honour’s reasons, the following further information from Dr Palk’s report should be noted.  Dr Palk recorded that the applicant discovered when he was in year 7 that he was adopted and his biological mother was of Aboriginal descent.  He never went to high school, but went to work on a dairy farm where he was molested by the owner who made the applicant masturbate him, in order to keep his job.  The applicant then worked at a service station where he said one of the male customers raped him when he was 17 years old.  Eventually, the applicant worked in the mines driving heavy vehicles.  From the age of 50 years, he worked as a bus driver for 14 years.
  2. [4]
    The applicant reported to Dr Palk that he was involved in two accidents as a bus driver in which the other drivers were killed.  This was disputed by the prosecution on the sentencing.  The submissions to the sentencing judge were left on the basis that the applicant had paperwork in relation to the incident that occurred in 1999.  In relation to the incident in 2002, the driver of the other vehicle was cut from the vehicle and hospitalised, but survived.  (What is relevant is the applicant believed the driver in the second incident had been killed.)  The applicant reported consulting a psychiatrist for six months following each incident.  Dr Palk considered that the applicant suffered from features of a post-traumatic disorder related to his experience of childhood sexual abuse, identity issues associated with being adopted and that he witnessed the death of two people from the two accidents.
  3. [5]
    In the sentencing remarks, the learned sentencing judge noted the abuse committed against the applicant when he was young, but considered that did not explain the applicant’s offending.  The sentencing judge also considered that the applicant’s work history meant that any limitations on his intellectual capacity were “not of real importance in determining the appropriate sentence” for the applicant’s offending.  The applicant does not challenge these findings of the sentencing judge.

The circumstances of the offending

  1. [6]
    As the sentence for count 14 was cumulative on the sentence imposed for count 2 with which the sentences for all other counts were concurrent, it is apparent that the reference by the sentencing judge in the sentencing remarks to the sentence for count 2 taking into account the applicant’s “overall offending” was a reference to the applicant’s overall sexual offending reflected in counts 1 to 13.  Even though the ground of appeal is limited to the sentence imposed on count 2, as the sentence for count 2 reflected the overall criminality for his sexual offending, it is necessary to summarise the details of all the sexual offences of which the applicant was convicted.
  2. [7]
    There were five complainants.  Counts 1 and 2 relate to the first complainant who was 13 years old when he was introduced to the applicant by another teenager, N.  The three of them went to the speedway and returned to the applicant’s caravan where count 1 (indecent treatment of a child under 16 with an impairment of the mind) was committed.  The first complainant performed oral sex on the applicant, while N penetrated the applicant’s anus with his penis.  The first complainant then rubbed the applicant’s penis with his hand until the applicant ejaculated.  The first complainant has an IQ of 50 and was diagnosed with a mild intellectual disability.
  3. [8]
    There was no further offending against the first complainant for about a year until the acts that comprised count 2 (maintaining a sexual relationship with a child) were committed between 24 September 2015 and 17 June 2016 which was a period of just under nine months.  The first complainant was aged 14 to 15 years old during the period of this offending which occurred at the applicant’s caravan.  The first complainant went to the caravan up to five times each week and described the offending as happening “heaps” and “every time” he went to the applicant’s caravan, but particularised nine discrete incidents.  The first complainant knew the other children who were complainants and introduced the second complainant (who was 19 years old at the time of the offending and has an IQ of 59) to the applicant.  The applicant’s ongoing conduct against the first complainant included permitting the first complainant to perform oral sex on him, to sodomise him and to rub his penis.  The first complainant said the offending ceased when he told the applicant that he did not want to “do it” anymore.  The first complainant provided a very brief impact victim statement in which he said he was scared to leave home and had nightmares about the offending.
  4. [9]
    Counts 3, 4 and 8 (indecent dealing with a person with an impairment of the mind) were committed against the second complainant.  Count 3 was committed on the first occasion that the second complainant met the applicant between 1 May and 8 June 2016.  The first complainant had taken the second complainant to the applicant’s caravan, after the applicant told the first complainant to bring a mate over.  The offence was committed when the second complainant watched the first complainant perform sexual acts on the applicant.  Count 4 involved similar offending at a similar time where the second complainant was present when the first complainant penetrated the applicant’s anus with his penis.  Count 8 was committed on 13 June 2016, when the applicant and the first complainant touched the second complainant’s penis, attempting to masturbate him, but the second complainant pushed them away.  The second complainant provided a statement to the police on 16 June 2016.  The aggravating aspect of the three offences committed against the second complainant was the exploitation of the vulnerability of the second complainant as a person with an intellectual disability.  It can otherwise be observed that the offending against the second complainant was very limited in its nature.
  5. [10]
    Counts 5 to 7 (indecent treatment of a child under 16) were committed against the third complainant on 11 June 2016 when the first and fourth complainants and N were also present with the applicant at the applicant’s caravan.  Count 5 involved the third complainant penetrating the applicant’s anus with his penis, while other sexual acts were being performed by the applicant on the fourth complainant and by the first complainant on the applicant.  Count 6 was committed when the third complainant watched while the first complainant rubbed the applicant’s penis with his hand, while at the same time the applicant was rubbing the fourth complainant’s penis.  Count 7 was committed when the third complainant observed N having anal intercourse with the applicant.
  6. [11]
    Counts 10 to 12 (indecent treatment of a child under 16) were also offences committed against the third complainant.  The third complainant met the applicant when in 2014 his family moved to the caravan park where the applicant resided. Count 10 was committed when the third complainant was 12 years old.  The applicant took the third complainant swimming and they then returned to his caravan to watch television.  The applicant then pulled his pants and underwear down and masturbated his penis.  The third complainant tried not to look at the applicant who then left the room.  Each of counts 11 and 12 were committed against the third complainant on a date unknown between 1 March and 18 June 2016 when the third complainant was around 14 years old.  The third complainant would often stay at the applicant’s place on Friday and Saturday nights because he wanted a break from his sisters.  One Friday night, the first complainant was also present.  Count 11 was committed when the third complainant watched the first complainant perform oral sex on the applicant.  The applicant asked the third complainant if he wanted to join in, but the third complainant declined.  Count 12 was committed on another Friday night when the first complainant was again at the applicant’s caravan and the third complainant was present while the applicant and the first complainant performed sexual acts on each other.  The third complainant’s grandmother provided a victim impact statement that described how the offending against the third complainant resulted in his becoming socially withdrawn and depressed.
  7. [12]
    Count 9 was the second maintaining a sexual relationship with a child offence that was committed against the fourth complainant between 1 January and 17 June 2016, when the fourth complainant was 15 years old.  This offending therefore overlapped the latter part of the period in which count 2 was committed.  The offending commenced against the fourth complainant, when he stayed overnight in the applicant’s caravan and got into bed with the applicant.  The applicant touched and rubbed the fourth complainant’s penis with his hand and then inserted his finger in the fourth complainant’s anus.  The applicant then had the fourth complainant perform oral sex on him.  Another occasion involved the first complainant penetrating the applicant while the applicant performed oral sex on the fourth complainant.  The fourth complainant stated he went to the applicant’s caravan each week between January and June 2016 and that the first complainant was present for all the group sexual acts which occurred about 10 times during that period.  The last occasion on which the applicant offended conduct against the fourth complainant occurred when the applicant took the fourth complainant for a drive in the applicant’s car.  When they stopped in a bush area, the applicant required the fourth complainant to perform oral sex on him.
  8. [13]
    The fifth complainant is the younger brother of the first complainant.  He was 11 years old when count 13 (attempted indecent treatment of a child under 16, under 12) was committed against him on a date in September 2014.  He was watching television in the applicant’s caravan, when the applicant told him to perform oral sex on the applicant.  The fifth complainant refused, because he was watching a movie.
  9. [14]
    Apart from the three discrete offences that were the subject of counts 1, 10 and 13, all the sexual offences were committed during the period that was particularised for count 2.

The applicant’s submissions

  1. [15]
    The essence of the submissions made on behalf of the applicant was that the sentence of 12 years’ imprisonment for count 2 did not reflect the applicant’s co-operation, through his pleas of guilty and that he did not, at any stage, require any of the complainants for cross-examination.  In addition, the applicant submitted the seriousness of his offending was not so much more serious than the offending in R v Quinn [2018] QCA 144 and R v WBG [2018] QCA 284 that it warranted a sentence that was two years higher than imposed in those cases.  The applicant emphasised that he had no relevant criminal history, whereas the offender in Quinn did.

The respondent’s submissions

  1. [16]
    The respondent submitted that the learned sentencing judge gave sufficient recognition to the timely guilty pleas by reducing the sentence that he suggested would have been imposed to reflect the overall offending, but for the pleas of guilty, of 16 years’ imprisonment for count 2 to 12 years’ imprisonment.  The respondent’s submissions emphasised the applicant’s use of the first complainant whom he had already corrupted to bring others to him and the engaging of sexual activity with a child in front of the newly introduced complainant to normalise the conduct so direct offending would, or could, be committed on the new complainant.  The respondent also pointed to the applicant’s lack of remorse shown by the conduct after the applicant was released on bail which resulted in count 14 and the breaches of the bail conditions.  It was conceded that there is a great variety of circumstances for maintaining type offences, but the respondent relied on R v BBY [2011] QCA 69 and R v L [2002] QCA 377, even though they were more serious examples of maintaining offences, to support the sentence imposed on the applicant for count 2 and, in particular, the starting point of the sentencing judge of 16 years for count 2 before reducing the sentence for the mitigating factors.

Was the sentence for count 2 manifestly excessive?

  1. [17]
    Even though Quinn was only an application for an extension of time to apply for leave to appeal against the sentence of 10 years’ imprisonment for one count of maintaining a relationship with a child over a period of eight months and therefore not a decision given after a fully argued sentence leave application, there is sufficient detail in the reasons for it to be of some assistance as a comparable authority.  The offender was 53 years old when he committed the offences.  He had a prior conviction in Queensland for a failure to report under the Child Protection (Offender Reporting) Act 2004.  He was convicted in New South Wales in 2001 for sexual offences he committed during the late 1980s against his stepson who was aged between nine and 16 years at the time of the offences.  He had other convictions in New South Wales, including one for an assault on a female.  The offender was a friend of the father of the complainants who were aged 15 and 16 years.  The father and his sons stayed with the offender and the offending began shortly afterwards.  The maintaining offence involved penetrative anal intercourse two to five times per week.  The other counts against the younger son involved anal intercourse (five counts of sodomy committed against a child) and other indecent acts, including photographing the complainant’s penis and exposing him to pornographic videos (three counts of indecent treatment of a child under 16).  The younger complainant suffered a greater vulnerability because his intelligence was much lower than was normal for his age.  The offences had a significant effect upon the complainants who suffered from psychological troubles as a result.  There had been cross-examination of witnesses at the committal, but the offender pleaded guilty and spared the complainants the ordeal of a trial.  Sofronoff P (with whom Henry and Crow JJ agreed) held at [10] that, in view of R v ZA; Ex parte Attorney-General (Qld) [2009] QCA 249, R v Souter [2002] QCA 516 and R v Herford (2001) 119 A Crim R 546, it could not be concluded that the sentence imposed on the offender for the maintaining offence was so obviously wrong as to indicate an error in the exercise of the sentencing discretion.
  2. [18]
    ZA was a successful Attorney’s appeal in which the sentence for each of two maintaining offences was increased from nine and one-half years’ imprisonment (without a serious violence offence declaration) to 10 years’ imprisonment (to which a serious violent offence declaration applied).  The offender who was 48 years old, when sentenced, had prior convictions for sexual offences against children, and pleaded guilty to sexual offending against six boys variously aged between 10 and 15 years.  The offender befriended one boy and gained his trust and that of his parents, offended against that boy’s two younger brothers and was introduced to three other boys against whom he offended when they came to the house with the brothers.  The maintaining offences were committed against the boy with whom the relationship first developed and one of his brothers over a period of four months.  In respect of the elder boy, the offender frequently performed fellatio upon him and masturbated him and on two occasions sodomised him.  In relation to the brother, the respondent frequently masturbated in front of him, performed fellatio on him, had the boy fellate him and fellated another boy in his presence.  Apart from the two maintaining offences, the offender was convicted of two counts of sodomy with a circumstance of aggravation, 21 counts of indecent treatment of a child with a circumstance of aggravation, seven counts of indecent treatment of a child, and two counts of attempting to procure a young person for carnal knowledge.  Philippides J (as her Honour then was) (with whom the other members of the court agreed) set out at [34] why the head sentence that was originally imposed that required the offender to serve only half of the sentence before being eligible for parole was manifestly inadequate.  This included the serious nature of the offending against young children who were enticed and groomed in a persistent and calculated manner in circumstances which involved a breach of trust and the aggravating aspect of the relevant prior criminal history.
  3. [19]
    The offender in WBG was convicted on his own pleas of guilty of 20 sexual offences committed against his three biological daughters, when child 1 was nine years old, child 2 was six to seven years old and child 3 was six years old.  The offences in respect of child 1 were maintaining a sexual relationship with a child, 10 counts of indecent treatment of a child under 16, under 12, who was a lineal descendent under care, and one count of incest.  The offences in respect of child 2 were maintaining a sexual relationship with a child, four counts of indecent treatment of a child under 16, under 12, who was a lineal descendent under care, and two counts of rape.  The one offence committed against child 3 was indecent treatment of a child under 16, under 12, who was a lineal descendent under care.  The effective head sentence of 10 years’ imprisonment was imposed on each of the counts of maintaining a sexual relationship with a child.  The relevant period of the maintaining was approximately three months.  It was noted at [17] by Flanagan J (with whom Morrison and Philippides JJA agreed) that the effect of the offending on the complainants was profound and the offender groomed the children and used emotional blackmail and manipulation.  The only mitigating factors were the timely pleas of guilty and the offender’s lack of any relevant prior criminal history.  No error was identified in the exercise of the sentencing discretion.
  4. [20]
    In BBY, the 72 year old offender pleaded guilty to 41 counts of sexual offences against nine complainants, including six counts of maintaining a sexual relationship with a child.  He was unsuccessful in applying for leave to appeal against the sentences in respect of which he had been sentenced to 14 and one-half years’ imprisonment on each of the four most serious maintaining offences.  The offender was a bus driver and the duration of the maintaining offences and the ages of the complainants at the commencement of the offending were respectively: (A) five years and six years old; (B) two years and 14 years old; (D) three years and eight years old; (E) three years and eight years old; (F) two years and 10 years old; and (I) 10 months and 14 years old.  The maintaining offences involved indecent touching of the complainant’s genitalia, digital vaginal penetration, oral sex including fellatio and procuring the complainants to masturbate him.  The offender penetrated the anus of three of the complainants, ejaculated in the mouth of another and partially penetrated the vagina of one of the 14 year old complainants.  Atkinson J (with whom Fraser JA and Margaret Wilson AJA agreed) observed at [49] that the sentencing judge would have been correct to start with a head sentence of 18 to 20 years before taking into account the matters in mitigation, including the offender’s age and pleas of guilty which meant the complainants were not required to give evidence in any of the matters and, to a lesser extent, the offender’s health problems which the sentencing judge had noted “paled into insignificance in the light of his offending behaviour”.
  5. [21]
    The offender in R v L was aged between 27 and 34 years when he committed a series of sexual offences against his stepdaughter, his daughter and a young female friend of the stepdaughter.  He pleaded guilty to two counts of maintaining an unlawful relationship with a child (where the complainants were his stepdaughter and daughter) and numerous other sexual offences.  All sentences were concurrent, but the effective head sentence was 16 years’ imprisonment imposed for the maintaining offence against his stepdaughter.  She was seven years old when the offending against her commenced and it continued until she was well into her teens.  The offences against the daughter commenced when she was seven years old and continued until she left the offender’s home a year later.  The two offences against the friend of the stepdaughter were committed when she was 13 years old when the offender required both the stepdaughter and her friend to masturbate him.  The offender followed a course of grooming the stepdaughter and daughter to provide for his sexual gratification, including training the stepdaughter to masturbate him, simulated intercourse between her thighs and then regular sexual intercourse with her from when she was 12 years old until she left home which was a period of approximately six years.  The sentence imposed on the offender was not caught by Part 9A (Convictions of Serious Violent Offences) of the Penalties and Sentences Act 1992 (Qld) (the Act), so that the offender was eligible for parole after serving half of the sentence.  That was, in fact, one of the factors that resulted in the offender’s application for leave to appeal the sentence being refused.
  6. [22]
    The applicant’s sexual offending against multiple complainants was more serious than the offending in Quinn, but as was submitted on behalf of the applicant, the applicant did not have the aggravating aspect of a prior criminal conviction for sexual offences committed against a child over several years.  The offender in Quinn had also cross-examined the complainants at the committal hearing.  The nature of the sexual offending committed in ZA was less serious than committed by the applicant, but that has to be balanced against that offender’s relevant prior criminal history for sexual offending against children.  The offending in WBG was over a shorter period than the applicant’s offending.  Even allowing for the aggravating aspect of the breach of trust of the offender in WBG in offending against his own daughters, the applicant’s sexual offending was overall more serious than that in WBG.  Objectively, the offending in both BBY and R v L was so much more serious than the applicant’s sexual offending, that little assistance is gained in referring to them as comparable authorities.  The use of R v L as a comparable authority for the applicant’s offending is also limited, as it was not a sentence to which Part 9A of the Act applied and that affected the disposal of the sentence leave application in that decision.  The relevant comparable authorities are those of Quinn, ZA and WBG and they support a sentence for the applicant’s offending that is not less than 10 years.
  7. [23]
    As the extract of the sentencing judge’s sentencing remarks set out at [39] of Williams J’s reasons show, the sentencing judge intended to mitigate the sentence imposed for count 2 for the guilty pleas, the applicant’s age and ill-health and the effect of the applicant’s age and ill-health on his capacity to withstand the rigours of prison.  Earlier in the sentencing remarks, the sentencing judge referred to the significant ill-health from which the applicant had suffered in prison that was particularised in Dr Palk’s report and expressed that his Honour would “reduce your sentence somewhat because of the significant difficulties your age and ill-health pose to your ability to cope with the rigours of prison life, but such matters cannot overwhelm the need to impose a significant sentence to reflect your gross misconduct”.  The sentencing judge’s approach to making allowance for the applicant’s age and ill-health is permitted by s 9(6) of the Act and can be contrasted with the different approach that was taken to the offender’s age and ill-health in BBY where it was held at [51] that there was no evidence that the offender’s medical conditions would make his time in prison any more arduous.
  8. [24]
    In light of the comparable authorities that do provide a relevant yardstick for sentencing for the applicant’s offending, the ultimate sentence of 12 years’ imprisonment for count 2 is not a sentence for the applicant’s overall sexual offending that has reflected appropriately all the factors specifically identified by the sentencing judge as warranting mitigation.  Whether that was as a result of the starting point of 16 years being too high or as a result of insufficient weight being given to all the mitigating factors found to be applicable by the sentencing judge, a sentence of 12 years’ imprisonment for count 2 is manifestly excessive in the circumstances.
  9. [25]
    It is therefore necessary to re-exercise the sentencing discretion.  The primary purposes of sentencing for serious sexual offending against children are punishment, general and personal deterrence, denunciation of the conduct, and protection of children from re-offending.  The most egregious aspects of the applicant’s offending were the exploitation and corruption of the first complainant who was both a child and had an intellectual disability and the conduct of the applicant in involving multiple complainants in group sexual activities.  There was also the applicant’s lack of remorse for his offending that was reflected in the five breaches of bail by contacting the first complainant on 19 and 20 June 2016 and the commission of count 14. Taking into account, however, all the mitigating factors identified by the sentencing judge, I consider the sentence of 11 years’ imprisonment should be substituted for count 2.

Orders

  1. [26]
    I therefore propose the following orders:
  1. Application for leave to appeal against sentence granted.
  2. Appeal against sentence allowed.
  3. The sentence for count 2 is varied by substituting 11 years’ imprisonment for 12 years’ imprisonment.
  4. The other sentences and orders of the primary judge imposed on 5 February 2020 are confirmed.
  1. [27]
    WILLIAMS J:  The applicant seeks leave to appeal against the sentence imposed on him on 5 February 2020 in the District Court at Maryborough.  The applicant contends that the sentence imposed on count 2 of 12 years imprisonment is manifestly excessive because it is plainly unjust and unreasonable in all the circumstances and it does not adequately reflect the applicant’s pleas of guilty.

Background

  1. [28]
    On 31 July 2019 the applicant was arraigned and entered pleas of guilty to 14 counts on the indictment.  This comprised 13 offences of a sexual nature and one offence of attempting to pervert the course of justice.
  2. [29]
    On 28 January 2020 submissions were made as to the appropriate sentence in respect of the 14 counts on the indictment and on five summary charges which had been transmitted to the District Court pursuant to s 651(1) and (2) of the Criminal Code 1899 (Qld).  On 5 February 2020 the applicant was sentenced and the sentencing judge declared 1,324 days of pre-sentence custody as time served.
  3. [30]
    The sentences imposed for the 14 counts on the indictment and the five summary offences were as follows:

The Indictable offences

Count

Offence

Sentence Outcome[1]

1

Indecent treatment of a child under 16, with an impairment of the mind

4 years imprisonment

2

Maintaining a sexual relationship with a child

12 years imprisonment

3

Indecent dealing with a child with an impairment of the mind

2 years imprisonment

4

Indecent dealing with a child with an impairment of the mind

3 years imprisonment

5

Indecent treatment of a child under 16

4 years imprisonment

6

Indecent treatment of a child under 16

2 years imprisonment

7

Indecent treatment of a child under 16

2 years imprisonment

8

Indecent dealing with a child with an impairment of the mind

3 years imprisonment

9

Maintaining a sexual relationship with a child

9 years imprisonment

10

Indecent treatment of a child under 16

2 years imprisonment

11

Indecent treatment of a child under 16

3 years imprisonment

12

Indecent treatment of a child under 16

3 years imprisonment

13

Indecent treatment of a child under 16 (attempted), under 12

1 year imprisonment

14

Attempting to pervert justice

9 months imprisonment (cumulative on Counts 1-13)

The Summary offences

Count

Offence

Sentence Outcome

1

Breach of Bail

Convicted and not further punished.

2

Breach of Bail

Convicted and not further punished.

3

Breach of Bail

Convicted and not further punished.

4

Breach of Bail

Convicted and not further punished.

5

Breach of Bail

Convicted and not further punished.

  1. [31]
    The sentencing proceeded on the basis of two agreed statements of fact: one relating to the indictable offences and the other relating to the summary offences.
  2. [32]
    In relation to count 2, maintaining a sexual relationship with a child, the complainant was a boy who was aged 14 to 15 years of age at the time of the offending[2] with an IQ of 50.  The maintaining occurred over approximately nine months between 24 September 2015 and 17 June 2016.
  3. [33]
    As to the frequency of the acts, the offending occurred when the complainant would visit the applicant in his caravan which occurred up to five times a week, or as described by the complainant as “happening ‘heaps’.”
  4. [34]
    On 16 June 2016, the applicant was arrested and charged.  On 17 June 2016 the applicant was granted bail but bail was revoked due to the applicant committing offences whilst on bail.  He has been in custody since 21 June 2016.
  5. [35]
    Initially the matter proceeded by way of a full hand-up committal.  The applicant was committed for trial on 23 November 2016.  An initial indictment containing 58 counts was presented on 22 May 2017.  On 31 July 2019 the Crown presented the 14 count indictment upon which the applicant was sentenced.  The Crown entered a nolle prosequi in respect of the 58 count indictment on the day of the sentencing submissions.
  6. [36]
    The applicant was a 66 to 69 year old Indigenous man at the time of the commission of the offences and was 72 years of age at the time of the sentence.  He had an irrelevant criminal history.
  7. [37]
    At the sentencing hearing, a report of Dr Gavan Palk was tendered on behalf of the applicant.  In the report, Dr Palk identifies a number of relevant matters, including:
    1. (a)
      The applicant suffers from a posttraumatic disorder associated with his sexual abuse as a teenager and unresolved identity problems due to his adoption and loss of contact with his Aboriginal heritage.
    2. (b)
      The applicant’s sexual offending pattern is associated with feelings of inadequacy, poor social skills and low intellect.
    3. (c)
      The applicant used manipulation and grooming to entice teenagers into sexual activities with him.
    4. (d)
      The applicant could not explain his sexual offending behaviour.  Dr Palk identifies that in his opinion the evidence suggests that the applicant committed the offences in the context of seeking assurance about his sexual functioning, taking advantage of the complainants to gratify his sexual needs when the opportunity arose and he was influenced by an underlying sexual deviance.
    5. (e)
      The applicant suffers from major physical conditions, including serious hip, leg and kidney problems.
    6. (f)
      The applicant’s overall intelligence was in the average range but he displayed borderline to below average verbal comprehension abilities.  He also has a history of a learning disorder and poor literacy skills.
    7. (g)
      The applicant’s perceptual reasoning ability was in the average intelligence range.
    8. (h)
      Whilst the applicant accepted he had sexually offended against the complainants, he displayed only limited remorse.  At the time of the offending he justified his behaviour on the basis that the complainants were willing participants and he was helping some of them with social activities.
    9. (i)
      Dr Palk is of the opinion that the applicant’s motivation for the offending is related to an underlying sexual deviance, sexual arousal problems, need for sexual arousal reassurance, impulsivity and sexual gratifications.
  8. [38]
    At the sentencing hearing the Crown submitted a term of 13 to 14 years imprisonment for counts 2 and 9 was appropriate.  The applicant submitted a term of nine to 11 years imprisonment was appropriate.

Sentencing remarks

  1. [39]
    In imposing the sentence, the learned sentencing judge stated as follows:

“… having regard to the gross nature and the protracted period of your offending. Issues of both general and personal deterrence are of importance as is the need to protect children and, importantly, those with real vulnerabilities because of reduced intellect or otherwise. In arriving at the sentence I have for the maintaining charges in particular, I have been assisted by counsel with reference to the number of cases, namely, R v WBG [2018] QCA 284; R v Quinn [2018] QCA 144; R v ZA; ex parte Attorney-General (Qld) [2009] QCA 249; R v Myers [2002] QCA 143; R v Herford [2001] QCA 177; R v BBY [2011] QCA 79; and R v Ruhland [1979] QCA 430 and, in addition, in relation to count 14, I have been assisted by reference to the case of R v Getawan [2014] QCA 235.

A feature of great significance in this case and not present in those, at least, to the degree that it is present in this, is the very significant mental impairment of the complainants with respect to counts 1 and 2 and also counts 3, 4 and 8 to which I have earlier referred. In particular, I consider your offending more serious than the case of Quinn. Although the younger complainant in that case had significantly lower intelligence than normal, that complainants incapacity was not as profound as the complainant and particularly with respect of counts 1 and 2 involving the maintaining charge here. And your case involves maintaining against two children, abuse of two others, and a 19 year old with impaired capacity. The fact that the complainant was not himself sodomised by you and the other factors relied on by your counsel do not, in my opinion, justify the sentence sought by your counsel, having regard to the facts of those cases and of this, especially reference to Quinn and the actual nature of your profound abuse.

I have earlier identified the features of your offending are of particular significance in determining your sentences. But for your pleas of guilty, it would be my view that a sentence of 16 years imprisonment for count 2, having regard to your overall offending, would be justified. I would [reduce] this primarily because of your plea, but also the other factors relied on by your counsel, including your age and ill-health and its effect on your capacity to withstand the rigours of prison to a sentence. On count 9, the other maintaining charge, I will impose a sentence of nine years. The complainant with respect to count 2 had significant intellectual incapacity and that feature in addition to the frequency of your abuse against him and the duration of that abuse over the nine month period justify, in my view, the different sentences. In imposing that sentence, I have regard to your overall offending.

In addition to that sentence of 12 years imprisonment, I impose the following sentences ranging between one and four years on the other offences. All sentences in respect of the sexual matters, including the 12 year and nine year sentences for the maintaining charges may be served concurrently with one another. In respect of the various sentences, I therefore impose the following sentences: count 2, 12 years; count 9, nine years; counts 1 and 5, four years on each; counts 4, 8, 11 and 12, three years on each; counts 3, 6, 7 and 10, two years on each; count 13, one year. As I have said, all those sentences are to be served concurrently. Count 14, the attempt to pervert the course of justice was an offence of a quite different nature.

In my view, a cumulative sentence is warranted. I have referred to the circumstances of that offending already and note that, on the 19th and 20th, you, in breach of bail, contacted the complainant on five occasions. In respect of those breach of bail offences, I will take them into account and convict you, but not otherwise punish you. Conscious of the effect of the 12 year head sentence that I have imposed in respect of count 2, I reduce the sentence I would impose in respect of count 14 to one of nine months imprisonment to be served cumulatively on all other sentences. In my view, standing alone, offending of this sort would have justified a sentence of one and a-half years imprisonment, having regard to your knowledge of that childs intellect, your ability to manipulate him and the purpose of that manipulation. As I have said, I take into account the five summary breach of bail matters, but while convicting you of those offences, do not otherwise punish you. I will declare that time amounting to 1324 days from the 25th of June 2016 to the 4th of February 2020 as time served for the purposes of all of those sentences.”  (emphasis added)

Consideration

  1. [40]
    The application for leave to appeal is in respect of the sentence imposed on count 2.  The approach of the sentencing judge was to reflect the total criminality in the head sentence for count 2.  Whether the sentence imposed in relation to count 2 is manifestly excessive requires a consideration of all of the offending that was reflected in the total criminality and taken into account in the balancing exercise that resulted in the head sentence for count 2.
  2. [41]
    The applicant contends that the sentence imposed on the applicant was plainly unjust and unreasonable in all of the circumstances.  In reaching this conclusion reliance is placed on the following:
    1. (a)
      The sentence did not reflect the applicant’s cooperation through his guilty pleas and in not cross-examining the complainants.
    2. (b)
      The offending was not “so much more serious” than the offending in R v Quinn [2018] QCA 144 and R v WBG [2018] QCA 284 to warrant a head sentence two years higher than the sentence imposed in those cases.
  3. [42]
    The applicant contends that leave to appeal should be granted, the appeal be allowed and the sentencing discretion be re-exercised with a term of imprisonment of 10 years imposed for count 2.
  4. [43]
    The respondent contends that the application should be dismissed as the sentence imposed reflects a sound and reasoned exercise of the discretion.
  5. [44]
    The respondent contends that the sentence imposed is not manifestly excessive taking into account the relevant features of the offending.
  6. [45]
    The following features were relevant to the sentencing and are relevant to the current application:
    1. (a)
      The applicant was a mature man between 66 to 69 years of age at the time of the offending.
    2. (b)
      The complainants were four different boys aged between 11 to 15 years and one 19 year old adult.
    3. (c)
      Two complainants were particularly vulnerable:
      1. (i)
        The complainant in count 2 has an IQ of 50, meaning his overall intellectual capacity was in the bottom 0.1 per cent of boys his age.
      1. (ii)
        The 19 year old complainant in relation to counts 3, 4 and 8, whilst an adult, has an IQ of 59, meaning that he has an intellectual impairment with an intellectual function at a very low level for his age, below 99.7 per cent of his peers.  He also suffers cerebral palsy, nocturnal seizures and an intellectual disability.
    4. (d)
      The risk of transmission of communicable disease given the nature of the offending.
    5. (e)
      In relation to the maintaining counts:
      1. (i)
        For count 2, the maintaining occurred over a nine month period.
      1. (ii)
        For count 9, the maintaining occurred over a five and a half month period.
      1. (iii)
        The unlawful sexual acts during those periods were as frequent as five times a week, occurring every time the complainant visited the applicant in relation to count 2 and every week in relation to count 9.
    6. (f)
      The sexual activity regularly occurred in a group context.  Further, this exposed other children to sexual acts between the applicant and children, or the applicant and other adults.
    7. (g)
      The applicant used complainants to bring others to him and engaged in sexual activity in front of the newly introduced complainants, thereby serving the purpose of “normalising the conduct”.  This led to direct offending against the new complainants.  The respondent contended that the applicant engaged in a level of grooming.
    8. (h)
      The applicant took advantage of the circumstances of a number of the complainants.  For example, one complainant sought refuge with him after an argument with his parents.  In another case, he took advantage of a complainant who sought time away from his family.
    9. (i)
      These features of the offending are described by the respondent as “serial and methodical child molestation which would justify an unequivocally deterrent sentence”.  In this regard the respondent adopts the description used in R v Ruhland[3].
    10. (j)
      The complainant in relation to count 2 was the participant in the indecent act to which the complainant in relation to count 12 was exposed.  The respondent refers to the “level of sexual corruption caused by the applicant” and the “normalisation of sexual behaviour” in respect of this complainant.  This normalisation of sexual behaviour reached a level where the complainant himself suggested trying “anal” with the applicant and the applicant willingly agreed to it.
    11. (k)
      The applicant’s demonstrated lack of remorse as evidenced by:
      1. (i)
        Count 14, an attempt to pervert justice by encouraging a complainant[4] to tell the police that he remembers nothing and to deny any specific conduct.  Further, this was done in an emotionally manipulative way by informing the boy that the applicant could go to jail for six years and if so, the applicant would commit suicide.  Given the complainant’s intellectual disability, this made the complainant more vulnerable.
      1. (ii)
        Breaches of the bail condition where the applicant contacted the complainant[5] in breach of a condition of no contact.  This conduct involved not only making contact but also suggesting that they meet for the purposes of further sexual activity.
    12. (l)
      The applicant’s willingness to offend and continuing risk to the community as evidenced by the breaches of bail.
  7. [46]
    The sentencing judge recognised the timely plea of guilty and also the impact of the applicant’s age and poor health on his ability to cope with prison life.  These features were expressly taken into account in reducing the head sentence from the 16 year starting point to 12 years imprisonment.
  8. [47]
    The respondent also contends that the authorities do not indicate that the sentence imposed was manifestly excessive.  In this regard the respondent points to the following:
    1. (a)
      R v BBY[6] concerned a 72 year old with no criminal history and poor health who was sentenced to 14 and a half years imprisonment for each of four counts of maintaining a sexual relationship with a child, 10 years imprisonment in respect of two other offences and lesser sentences in respect of 35 other sexual offences.  There were nine complainant girls, the periods of maintaining were between 10 months and five years and the ages were between six and 14 years of age.  The applicant was a school bus driver who preyed on the complainants and the offending included indecent touching of the complainants’ genitalia, digital vaginal penetration, oral sex including fellatio and procuring the complainants to masturbate him.  Further, the applicant penetrated the anus of three of his victims, ejaculated in the mouth of another and partially penetrated the vagina of one of the 14 year old complainants.  The Court of Appeal refused leave to appeal against the sentence.  Atkinson J (with whom Fraser JA and Wilson AJA agreed) stated in the reasons that the applicant’s Counsel properly accepted that the appropriate starting point was a head sentence of 18 to 20 years imprisonment.
    2. (b)
      R v L[7] concerned a 27 to 34 year old who pleaded guilty to a series of sexual offences against his step-daughter, his daughter and a young female friend of his step-daughter, with a head sentence of 16 years imprisonment.  Of the 10 offences, two were maintaining offences in respect of his step-daughter and his daughter and the offending occurred over a significant period: over five years and about 1 year respectively, commencing when both were seven years old.  The offending included grooming the complainants to provide for his sexual gratification.  The offending conduct included touching and training his step-daughter to masturbate him and engaging in simulated intercourse, then from the age of 12 regular sexual intercourse.  Another complainant was 13 years old and was requested to masturbate him.  The applicant had little insight into his offending, suffered mental health problems stemming from his own verbal and physical abuse and had lived on the streets from the age of 11.  On appeal, the Court of Appeal concluded that the ultimate penalty of 16 years (having a starting point of 20 years) was high but was not outside the range of a proper exercise of the discretion.[8]
    3. (c)
      While the duration of offending in BBY and L was significantly longer than in this case, this is reflected in the higher starting point and the sentences imposed being higher than here.
  9. [48]
    At first instance, submissions were made in respect of R v Quinn[9] by both the applicant and the respondent.[10]  R v Quinn concerned a 53 year old man (56 at the time of sentencing) who pleaded guilty and was sentenced as follows:
    1. (a)
      One count of maintaining a relationship with a child – 10 years imprisonment;
    2. (b)
      Three counts of indecent treatment of a child under 16 – 2 years imprisonment;
    3. (c)
      Five counts of sodomy – 5 years imprisonment; and
    4. (d)
      Failing to comply with reporting obligations – 2 years imprisonment.
  10. [49]
    The complainants were 15 and 16 year old boys and the applicant was a friend of their father.  The younger boy had an intelligence which was much lower than normal for his age.  The period of maintaining was eight months and included penetrative anal intercourse two to five times a week.  He had a relevant criminal history and cross-examined both complainants at a committal hearing.
  11. [50]
    In that case the applicant was sentenced to 10 years as a head sentence for the maintaining count and the application to extend time for leave to appeal was refused.
  12. [51]
    The sentencing judge observed that the current offending was more serious, with particular regard to the factors in this case including the number and vulnerability of the complainants.  The respondent contends that it could not be said that this conclusion was wrong.
  13. [52]
    However, the applicant submits that this conclusion does not reflect the aggravating features in R v Quinn.  These features are that in R v Quinn both complainants were cross-examined at the committal hearing, where one complainant has a learning difficulty.  Further, in that case the applicant had a relevant criminal history involving sexual offences against his stepson between the ages of nine and 16 years.   Both of these features are not present in the current case.
  14. [53]
    However, it should also be noted that the current case involves maintaining a sexual relationship with two children (one of whom has a significant intellectual impairment) and a total of five complainants were involved (including an adult who also has an intellectual impairment).  These are factors relevant to the seriousness of the offending in the current case, which were not present in Quinn.
  15. [54]
    The decision in R v WBG[11] was also addressed in submissions before the sentencing judge as well as in submissions before this Court.  In that case the applicant pleaded guilty to 20 sexual offences, including two counts of maintaining sexual relationships with a child.  The complainants were the applicant’s three biological daughters and their ages were nine, six – seven and six years old at the time of the offending.  The period of maintaining was approximately three months.  The applicant had no relevant prior criminal history and it was a timely plea of guilty.  A head sentence of 10 years imprisonment was imposed for the two maintaining counts, with lesser concurrent sentences in respect of the other counts.  A serious violent offence declaration was made.
  16. [55]
    Before the sentencing judge the respondent submitted that the offending in this case was worse than in WBG for the following reasons:
    1. (a)
      The penetration of a complainant’s anus by the applicant with a dildo (similar with WBG).
    2. (b)
      The applicant procuring both complainants in the two maintaining offences to penetrate his anus.
    3. (c)
      The applicant procured a third complainant to penetrate his anus.
    4. (d)
      There is offending against two further complainants.
    5. (e)
      The period of the maintaining offending was longer.
  17. [56]
    The intellectual impairment of two of the complainants (one of whom was a child) is also a feature that is relevant to the seriousness of the offending in the current case, which was not present in WBG.
  18. [57]
    Based on the authorities of Quinn and WBG a sentence of at least 10 years is appropriate.  However, is a sentence of 12 years manifestly excessive taking into account all the relevant features and mitigating factors in this case?
  19. [58]
    The sentence of 12 years imposed on count 2 was not outside the proper exercise of the sentencing discretion.  Factors point to a sentence higher than that in Quinn and WBG.  Given the combination of the number of complainants, the age of the complainants (and the age difference with the applicant), the nature of the offending but also the particular features of the offending in this case outlined below, it is within the range of a proper exercise of the sentencing discretion.  These particular features include:
    1. (a)
      The exploitation of the intellectual impairment of the complainant in respect of count 2.  The offending in respect of count 1 is also in respect of the same complainant.  The statement of facts recognises that this complainant’s intellectual and cognitive impairment meant that there was a substantial reduction in his capacity for communication and learning.  Further, his intellectual disability was exhibited by low range functioning of vocabulary, visual spatial abilities, memory and attention span, and information and adaptive functioning.  His vulnerability appears to exceed the level of vulnerability referred to in R v Quinn.
    2. (b)
      The applicant quickly introduced the complainant in respect of count 2 to serious sexual conduct and also exposed him to serious conduct performed with others, including another teenager performing anal sex with the applicant.
    3. (c)
      The applicant used his relationship with the complainant in respect of count 2, the applicant was able to access two further complainants.  This included the younger brother of the complainant in respect of count 2.
    4. (d)
      While aged 19 years, the complainant in respect of counts 3, 4 and 8 attended Special School with the complainant in respect of count 2, who introduced him to the applicant.  This complainant witnessed sexual acts performed by the first complainant on the applicant.  He had an intellectual impairment with “markedly sub-average global intellectual function”, with significant impairments in his verbal abilities, perceptual skills, memory and executive functioning.  His capacity for communication, social functioning and learning was substantially reduced.  He also has cerebral palsy and suffers from nocturnal seizures.
    5. (e)
      The applicant preyed on other complainants at caravan parks where they were staying with their families.  Some of them were vulnerable due to their family dynamics.  The applicant engaged in grooming.
    6. (f)
      The group nature of the sexual acts done in front of other boys “normalised” the behaviour.  There was a level of “corruption” of the complainants by the applicant which made them more vulnerable to his offending in relation to them.
    7. (g)
      The victim impact statement of the complainant in respect of count 2 reveals the devastating long-term impact of the applicant’s offending, leaving the complainant scared to leave his house, suffering nightmares, scared when in the street and no longer himself.
    8. (h)
      The applicant’s behaviour was particularly predatory.
    9. (i)
      The breaches of bail and the attempt to pervert the course of justice all relate to the complainant in respect of count 2 and the applicant’s attempts to silence that complainant.
    10. (j)
      The circumstances of the breaches of bail (including asking the complainant to meet the applicant for further sexual activity) show there was a real risk that the applicant would continue to offend, demonstrating a risk to the community, the need to protect the community and also the need for specific deterrence in respect of the applicant.
    11. (k)
      The applicant showed a lack of insight into the offending and remorse.  The plea of guilty did not reflect remorse, particularly as evidenced by the contact with the complainant in breach of the bail conditions and the attempt to pervert the course of justice. The applicant’s lack of remorse in respect of the offending is supported in the report of Dr Palk.
  20. [59]
    Further, the overall criminality reflected in the head sentence for count 2 in this case also took into account the breaches of bail, in respect of which a conviction was recorded but no further punishment.  In the context of this offending this is a further serious factor of aggravation: contact with a vulnerable complainant in breach of a no contact condition and the suggestion of on-going sexual activity in the context of the factors identified above.
  21. [60]
    A cumulative sentence was imposed in relation to count 14 and the sentencing judge expressly recognised that that sentence was reduced to take into account the effect of the sentence in respect of count 2.
  22. [61]
    The applicant’s pleas of guilty, and not cross-examining the complainants, his lack of criminal history and his ill health were factors to be considered.  However, the plea cannot be said to be indicative of remorse.  Indeed, the applicant minimised his predatory conduct in his report to Dr Palk.  Consideration of all of the factors in this case on balance do not result in the sentence imposed being unjust or unreasonable.  This is particularly so considering the number of maintaining offences, their duration, the total of five complainants and the significant intellectual impairment of two of the complainants (one of whom was a child) and the applicant’s lack of insight and remorse.
  23. [62]
    The sentence imposed was not manifestly excessive and no error in the sentencing discretion has been established.
  24. [63]
    The application should be refused.

Footnotes

[1]The terms of imprisonment for counts 1 to 13 are to be served concurrently.

[2]The complainant was aged 13 years of age at the time of the offending in count 1.

[3][1999] QCA 430 [8] (de Jersey CJ).

[4]The same complainant as in Count 2.

[5]The same complainant as in Count 2.

[6][2011] QCA 69.

[7][2002] QCA 377.

[8]But it should be noted that there was no automatic declaration of a serious violent offender.

[9][2018] QCA 144.

[10]The applicant did not refer to R v Quinn in its written submissions but did address the decision in oral submissions on 28 January 2020.

[11][2018] QCA 284.

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Editorial Notes

  • Published Case Name:

    R v Thompson

  • Shortened Case Name:

    R v Thompson

  • MNC:

    [2021] QCA 29

  • Court:

    QCA

  • Judge(s):

    Philippides JA, Mullins JA, Williams J

  • Date:

    02 Mar 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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