R v HCI[2022] QCA 2

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  Upon the applicant’s pleas of guilty entered in February 2021, on 24 May 2021 the applicant was sentenced to concurrent terms of imprisonment of four years and six months for maintaining an unlawful relationship with a child (count 1) and 18 months for each of seven counts of indecent treatment of a child under 16 who was under 12 (counts 2 – 8).  The sentencing judge fixed 22 September 2022 (16 months after the date of sentence) as the parole eligibility date.  The applicant applies for leave to appeal against sentence upon the ground that the sentence was manifestly excessive in that the Judge erred in various respects described in five paragraphs.
2. [2]
   The applicant was sentenced upon an agreed statement of facts.  The complainants were twins.  The applicant was a work colleague of the complainants’ father and visited their family home about fortnightly.  During visits he played with the children, bought them gifts, gave them money, and became close to them.  During a period of approximately two years between 2010 and 2012 when the applicant maintained an unlawful relationship with A, who was most likely then aged eight and nine, the applicant frequently and habitually touched and digitally penetrated her vagina during almost all of the visits to the home. (count 1).  The applicant engaged in that conduct primarily in the backyard of A’s family home.  He also engaged in such conduct close to A’s parents whilst they all watched television in the family home.  On occasions the applicant told A not to tell anyone and it was their secret.
3. [3]
   B was most likely aged between eight and 11 when the applicant committed counts 2 – 8.  Counts 2 – 4 and 7 – 8 occurred at the family home.  Most likely in February 2010, the applicant touched B’s penis on the outside of B’s pants and stopped when B told him to (count 2).  Most likely in 2011, the applicant touched B’s penis underneath his shorts until B told him to stop and moved away (count 3).  Most likely in 2011, despite B twice saying “no” when the applicant asked if he could give him a “special tickle”, the applicant touched B’s penis inside his shorts (count 4).  On two occasions during a visit to a zoo with the family in January 2012, the applicant touched B’s penis and testicles on the outside of his clothing whilst looking around to ensure nobody was watching and positioning himself so his hands could not be seen by anyone close by (counts 5 and 6).  Most likely in 2012, the applicant was playing with both children in the backyard of the family home when he touched B’s penis inside his shorts (count 7).  The applicant committed count 8 most likely in 2012.  During an overnight visit to the family home the applicant snuck into B’s bedroom whilst B was asleep, pulled B’s pants down, and removed his penis.  The applicant began to perform oral sex on him.  That agreed fact must be understood in the context of the agreed facts that the applicant’s mouth was about to touch B’s penis when B awoke, the applicant’s mouth touched B’s penis for a split second, B told the applicant to get out, and the applicant left the room.
4. [4]
   Years after the offending, most likely in 2016, the applicant told B he was sorry and said he shouldn’t have done that to him or his sister.  The offending came to the attention of the authorities after A, then aged 16, made disclosures to a friend in May 2018 then a school chaplain.  A subsequently made disclosures to her mother.  When her mother spoke to B, he disclosed that the applicant had abused him.  A and B made complaints to police and identified the applicant in a photoboard.  The applicant was charged on 5 November 2019.  The lapse of time after that date until the date of sentence was said by the applicant’s counsel to be attributable to lengthy discussions about some legal issues about the charges between the prosecutor and the applicant’s solicitor before the committal.  The indictment was presented in November 2020 and after some mentions the matter was listed for arraignment and then sentence.
5. [5]
   At the commencement of the sentencing remarks, the sentencing judge stated he took into account the applicant’s pleas of guilty and reduced the penalties he otherwise would have imposed, the pleas showed cooperation with the administration of justice, had saved the cost of a trial, and importantly had spared the complainants from being cross-examined.
6. [6]
   The sentencing judge referred to the facts that the offences occurred as early as 2010 and complaint was not made until 2018, referred to R v L; Ex parte Attorney-General (Qld),^[1] and took into account as a mitigating factor the delay in the proceedings against the applicant.  There is no challenge to this aspect of the sentencing judge’s reasoning, but I will make some observations about it.  The sentencing judge did not find that these young complainants’ delay in complaining of the offending which, as the sentencing judge observed, was understandable, was of itself productive of unfairness to the applicant such as to justify mitigation of his sentence.  In my respectful opinion that was appropriate.^[2]  The period that elapsed between the applicant being charged and the sentence hearing and the explanation for that delay are identified in [4] of these reasons.  Some allowance could fairly be made for that delay, but in my respectful opinion the applicant did not prove that it was productive of such unfairness to him as to justify significant mitigation in the sentence.^[3]  The sentencing judge’s remarks also suggest that more significance was attributed to such progress as the applicant had made in his rehabilitation during the lengthy period up to the sentence hearing after he had ceased to offend against the complainants.^[4]  In my respectful opinion that was appropriate.^[5]
7. [7]
   The applicant was 34 and 35 when he committed the offences.  He had a criminal history for offending of a similar kind.  The sentencing judge remarked that the criminal history clearly showed the applicant had a sexual interest in children in the past.
8. [8]
   On 18 July 2002, the applicant was sentenced to five years’ imprisonment with a recommendation for release after 18 months for maintaining an unlawful relationship with a child under 12 during a period of about one and half years between August 2000 and February 2002 when the applicant was between 23 and 25.  The applicant was then also sentenced to concurrent terms of 12 months’ imprisonment for 10 counts of indecent treatment of children under 16, who were under 12, committed within a similar period.  The offending was against three children.  The complainant in the maintaining offence was aged 4-5.  The other complainants were two brothers aged eight and seven.  The applicant came to know the children through his association with their parents.  After a complaint had been made to police the applicant admitted his offending.  Whilst in custody he made attempts to address his offending.
9. [9]
   In January 2004, the applicant was sentenced to concurrent terms of 15 months’ imprisonment (concurrent with the sentence imposed on 18 July 2002) suspended after serving three months’ imprisonment for an operational period of 15 months for three counts of indecent treatment of children under 16 committed between August 1994 and January 1995 when the applicant was 17, and two counts of indecent treatment of children under 16 (under 12) committed between December 2000 and July 2002 when the applicant was between 23 and 25.  The applicant pleaded guilty upon an ex officio indictment and he admitted to offending beyond that which was known to the authorities.
10. [10]
    Two further sentences which preceded the subject sentence were considered by the sentencing judge to be relevant to the determination of the subject sentence, by reference to the totality principle:

    1. (a)
       On 12 October 2012 the applicant was sentenced to two years’ imprisonment, with a parole eligibility date after eight months, for an indecent treatment offence on 20 February 2011 (when the applicant was 34), in which the applicant touched a five year old boy on his penis outside his clothes while watching television.  The complainant was the son of a friend of the applicant’s.  The applicant told the child not to tell anyone, but the applicant promptly apologised to the child’s father for the offending and acknowledged he needed help.^[6]  The applicant served the whole of the term of two years in prison.
    2. (b)
       On 6 February 2017, the applicant was sentenced to two years’ imprisonment suspended after eight months for an operational period of three years, and eight months’ imprisonment with three years’ probation, for five offences of indecent treatment of children, under 16, under 12.  The applicant committed four of those offences between January 2007 and 13 October 2012 (when the applicant was between about 30 and 35), when he touched a five to six year old boy on his groin outside his clothing.  In a pretext telephone call the applicant admitted to that offending.  Some of those offences pre-dated the subject offences and some of them were committed within the period during which the applicant committed the subject offences.  The applicant committed the fifth offence in December 2015 (when he was 38) when he touched a 10 year old girl on her groin outside her clothes.  That offence was committed after the applicant committed the subject offences.
11. [11]
    A and B and their parents provided victim impact statements.  The sentencing judge observed that the offending had a significant effect on the complainants.  The sentencing judge accepted the submissions for the Crown that there were aggravating features of the offending that some of the offending was committed whilst on bail,^[7] there were two complainants, they were very young, the applicant has relevant convictions, his conduct was brazen, and there were elements of grooming.  The sentencing judge considered that community protection, deterrence, and denunciation were relevant, and he was also required to have regard to the applicant’s rehabilitation, particularly bearing in mind the delay.
12. [12]
    A report dated 10 May 2021 about the applicant’s performance under the probation order of 6 February 2017 described the applicant’s response to supervision as satisfactory.  The applicant had complied with the conditions and supervision requirements and maintained stable accommodation and employment.  The applicant had engaged in sexual offending programs.  He had engaged in extensive periods of treatment and counselling with a psychologist.  He intended to continue that treatment and counselling after expiry of the probation order. (I note that the applicant had been fined in February 2018 for failing to comply with reporting requirements between 7 September 2010 and 7 September 2017.  The applicant’s counsel submitted to the sentencing judge this related to the applicant not having disclosed he spent time with some family friends who had a daughter, and a fine of $2,000 was imposed.  The sentencing judge did not advert to this matter in the sentencing remarks.)
13. [13]
    The sentencing judge observed he was informed by counsel for the applicant that the applicant completed the “SOTP” (Sexual Offender Treatment Program) in 2002, the “SOMP” (Sexual Offender Maintenance Program) in 2004, and another SOMP on probation in 2017.  The sentencing judge observed the applicant served the full two years of his sentence in 2012 whilst doing such a course (which counsel for the applicant at the sentence hearing described as the “Medium Intensity Sexual Offender Treatment Program” ^[8]), the applicant served the eight months under the sentence imposed in 2017, and whilst on probation for three years, concluding in February 2020, the applicant attended the SOMP weekly for two and a half months and had regular treatment from a psychologist.
14. [14]
    The sentencing judge observed that the applicant’s counsel relied heavily on the treatment by a psychologist, who provided a report dated 18 January 2017.  That report had been before the judge who had sentenced the applicant on 6 February 2017.  The sentencing judge referred to salient parts of the report in terms which may be summarised as follows:

    1. (a)
       The applicant had commenced treatment in February 2016 and attended weekly appointments.  He was willing to undergo the psychological intervention.  The applicant had insight and a willingness to implement risk-management strategies.  He pro-actively sought treatment.  He benefited to a degree from sex offender treatment in prison.  The applicant’s difficulties with sexual offending started because of his abusive and prejudicial formative experiences, notably, sexual abuse on him as a child by his mother’s male partner and by other adults.  That severely impacted the applicant’s emotional, psychological, and sexual development and contributed to his own sexual behaviour towards others.
    2. (b)
       The sentencing judge referred to risk factors identified by the psychologist, including sexually deviant interests and child abuse supportive attitudes, which were strongly related to the applicant’s own sexual abuse experience.  The applicant had undertaken significant work and treatment about that.  At the time of the report, while the applicant’s interest in children remained an issue he claimed his primary sexual orientation was to adult females.  There were still issues about fantasies with children, but the applicant was vigilant about risk management, he had protective factors, he had engaged very well in treatment, and he was highly motivated to address his difficulties.
15. [15]
    The sentencing judge recorded that the applicant continued to see a psychologist, the applicant had made significant progress, and the applicant did not spend time with friends who have children. (That reflected submissions by the applicant’s counsel that the psychologist who gave the report continued to treat the applicant until she left Australia, he continued to see a psychologist as part of his 2017 probation order, the applicant “felt at the conclusion of that order that he had made significant progress, that he had been given … [the] keys to avoiding further offending”, and he had committed not to spend time with friends who have children, which he recognised as a major risk factor.)  The sentencing judge referred to references by people who knew the applicant well; they described a significant change in the applicant and expressed favourable opinions, including that rehabilitation had worked for the applicant.
16. [16]
    The sentencing judge observed there had been a long therapy with progress.  The applicant had lived with a woman for five years and now lived independently. (That person, who supplied a very favourable reference for the applicant, made it clear there was no relationship between them other than a friendship which had increased whilst the applicant lived in her home from the end of 2015 until September 2020.)  The applicant had a good work history.  He had not committed an offence involving the indecent touching of children for six years.  He was subject to a strict reporting regime (under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004).  There had been delay, the matter was never to be contested, and there had been no cross-examination of the complainants.
17. [17]
    The sentencing judge referred to submissions by the applicant’s counsel about the applicant’s compliance with probation, his cooperation and the courses he had done, and a submission that perhaps, in all of those circumstances, a suspended sentence might be appropriate.  The sentencing judge observed that the difficulty with that was that there were risk factors identified in the 2017 report, there was no up-to-date report, and in light of the applicant’s previous history this was a case in which the Parole Board should assess matters with up-to-date evidence before release.
18. [18]
    The sentencing judge considered sentencing decisions cited by the parties and adverted to the parties’ competing submissions about the appropriate sentence.  It was submitted for the Crown that if the applicant had been sentenced at the same time for the totality of his offending (a reference to the subject offences and the offences for which the applicant had been sentenced in the two preceding sentences on 12 October 2012 and 6 February 2017) a sentence very close to or up to 10 years would have been appropriate,  if the sentence was 10 years a serious violent offence declaration would have been automatic (thereby deferring parole eligibility until after 80 per cent of the term of imprisonment was served), and ultimately a sentence of between seven and eight years’ imprisonment would be appropriate.
19. [19]
    Counsel for the applicant submitted that the starting point would be in the range of seven to eight years’ imprisonment and pressed for a sentence of imprisonment of four to five years.  She supported the sentence that ultimately was imposed.
20. [20]
    The sentencing judge addressed the issue of totality, accepting the need to consider what sentence the applicant might have been given if on the same occasion he had been sentenced for the subject offending and the offending for which the applicant was sentenced in the two preceding sentences.  The sentencing judge considered the applicant probably would have received a sentence in the order of nine years, or perhaps eight to nine years, perhaps with an altered parole eligibility date, to reflect the pleas of guilty and to avoid the impacts of a serious violent offence declaration.  After identifying the terms of imprisonment that would be imposed the sentencing judge observed that the applicant had already served two years and eight months of “that total term” (the notional total term of imprisonment of 8.5 years under the two preceding sentences and the subject sentence) and a further 16 months (before parole eligibility) was appropriate.

Consideration

21. [21]
    The ground of the application conveys that the contention that the sentence is manifestly excessive is established by identifiable errors in the exercise of the sentencing discretion.  That is inconsistent with the established distinction between an identifiable error (a “specific error”) in the exercise of the sentencing discretion (acting upon a wrong principle, taking into account an irrelevant consideration, mistaking the facts, or failing to take into account a material consideration) and a conclusion that upon the facts the sentence is “unreasonable or plainly unjust” from which it may be inferred that there must have been some unidentifiable failure properly to exercise the sentencing discretion.^[9]  The expression “manifestly excessive” connotes an error of the second kind.  As the High Court more recently put it, the second kind of error will be established only if, “having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle”.^[10]  In argument, the applicant’s counsel contended for both kinds of error.
22. [22]
    I will refer first to each of the specific errors alleged in the five paragraphs of the ground of the application and at the same time make some observations that relate to the contention that the sentence is manifestly excessive.

(i): Considering the Applicant’s old reported sexual fantasies was an issue on sentence, when the Applicant was not required to adduce any evidence as to recovery from same and where the Judge failed to have proper regard to other evidence of treatment and/or rehabilitation as to same

(ii): Failing to give proper regard and weight to the Applicant’s rehabilitation and the length of time since the subject offending.

23. [23]
    The applicant’s argument revealed that “failed to have proper regard to” in the second part of paragraph (i) and “give proper regard and weight to” in paragraph (ii) were intended to convey no more than “did not give sufficient weight to”.  That is not a contention that the sentencing judge did not take into account the relevant evidence of treatment and rehabilitation or the associated topic of the length of time since the subject offending.  These contentions are not viable grounds for appellate interference in the sentence.^[11]  The sentencing judge took into account the evidence upon each of those topics.
24. [24]
    The applicant relied upon the evidence upon those topics as support for the ground that the sentence is manifestly excessive.  That evidence did establish circumstances in the applicant’s favour, particularly his commendable conduct in obtaining therapy, his progress towards rehabilitation, the circumstance that the last sexual offence in his criminal history (in December 2015) was committed more than five years before the sentence hearing, and the circumstances that the applicant had satisfactorily fulfilled the conditions of his probation between 2017, including completing a sex offender programme, he had completed other sex offender programs, and he sought out and also co-operated well in treatment by psychologists.  Even so, in light of the applicant’s history of committing sexual offences against children at different times during a substantial period of his life from 1994 to 2015, the very concerning circumstances of that offending (including the circumstances of aggravation summarised in [11] of these reasons), and the psychologist’s opinions in the 2017 report, it was clearly within the sentencing discretion to conclude the applicant remained at risk of sexual offending against a child and that, in addition to the important sentencing consideration of general deterrence, the material considerations for the sentence included community protection and personal deterrence.
25. [25]
    The applicant’s counsel submitted that error was established by the sentencing judge’s failure to advert to the psychologist’s statement that “I currently have no reason to be concerned that he has engaged in sexually inappropriate behaviour towards children more recently.”  The argument attributed too much significance to that sentence by taking it out of its context.  That sentence appeared in the following context (I have added the emphasis):

“I have no collateral information to validate Mr HCI’s accounts of how he is currently managing his relationship with any children he has contact with but based on the fact that he voluntarily raises such issues and goes into specific detail regarding how he thought/acted to manage the situation and his general progress in treatment I currently have no reason to be concerned that he has engaged in sexually inappropriate behaviour towards children more recently. If he has refrained from such behaviour this would suggest his risk can be adequately managed in the community with the caveat that he continue to receive treatment for his offending and factors underpinning this.”

26. [26]
    Consistently with the caveats expressed by the psychologist in that passage, shortly after referring to the fantasies mentioned in [29] of these reasons the psychologist observed the applicant “appears to be making progress” and was “over time … less frequently engaging in such behaviour”.  The psychologist summarised her opinion at the end of her five-page report.  After stating the applicant had engaged well in treatment, appeared highly motivated to address his difficulties, was open and honest about them, utilised treatment appropriately and appeared vigilant and diligent in risk management, the psychologist opined:

“The aetiology of his difficulties is such that he will require ongoing forensic treatment of a relatively lengthy duration but should he receive this I would anticipate that he will continue to make progress in reducing his risk. Given the nature of his difficulties it is my opinion that appropriate treatment will be the most pivotal variable to risk reduction and maintaining his desistance from sexual offending in the longer term.”

27. [27]
    It is apparent that the sentence upon which the applicant’s counsel relies was not intended to convey that the applicant did not present an ongoing risk of recidivism.  The sentencing judge’s synopsis of the report was not rendered inaccurate by the omission of specific reference to that sentence.
28. [28]
    The first part of paragraph (i) is based upon the sentencing judge’s references in two passages of the sentencing remarks to risk factors in the 2017 psychological report described in [14](b) and [17] of these reasons.  Contrary to the applicant’s argument upon this point, neither passage conveys that the sentencing judge found support for an inference favourable to the Crown in the failure of the applicant to adduce evidence about the risk of re-offending.^[12]  In the first passage the sentencing judge merely described the psychologist’s opinion at the time of the report.  The effect of the second passage is merely that a reason why suspension rather than parole eligibility should be ordered was that it was preferable that the state of the applicant’s rehabilitation be assessed with reference to up-to-date material before the applicant was released into the community.  That is a conventional approach.  Neither passage evidences any error in the exercise of the sentencing discretion.
29. [29]
    The applicant’s counsel referred to statements made by the sentencing judge during argument at the sentence hearing.  The applicant’s counsel at sentence told the sentencing judge she tendered the psychological report, not because it was recent, but because it set out in some detail the applicant’s background and possibly the genesis of his offending behaviour.  The sentencing judge asked, “It’s concerning he’s – well [indistinct] that’s 2017, four years ago, isn’t it?” ^[13]  The applicant’s counsel agreed.  Subsequently the sentencing judge drew attention to a reference in the report to the applicant having acknowledged during his course of treatment that he regularly masturbated to fantasies of children.  The applicant’s counsel submitted that was some time ago, she acknowledged there was no up-to-date information about that sort of issue she could place before the court, and she agreed that was of concern.  The sentencing judge’s remarks appropriately notified counsel of issues upon which she might wish to make submissions.
30. [30]
    The applicant’s counsel also submitted to the sentencing judge that his Honour could either suspend a sentence of imprisonment after the applicant had served perhaps half of it or perhaps reduce the head sentence somewhat if the sentencing judge was minded to impose parole eligibility.  In that context the sentencing judge expressed a concern about the absence of an up-to date psychiatric or psychological report, which would assist, and remarked that he had some concerns about the suspension submission.  That remark also appropriately alerted the applicant’s counsel to an issue about which she might wish to make submissions.
31. [31]
    Those exchanges in argument have no relevance to the legitimacy of the sentence.  The sentencing judge’s reasons relating to the matter are comprehensively expressed in sentencing remarks which reveal no error in the exercise of the sentencing discretion.

(iii): Failed to give proper regard and weight to the comparable cases on sentence in considering that the starting point on sentence was 9 years imprisonment as the head sentence.

32. [32]
    This paragraph does not articulate a specific error.  I discuss the sentencing decisions when considering the contention that the sentence is manifestly excessive.

(iv): Failing to have proper regard to the totality principles in failing to have regard to the Applicant’s liability to serve 5 years of sentences that included actual imprisonment, liability to serve a suspended term and probation.

33. [33]
    The applicant argues that the sentencing judge did not take into account the circumstance that the sentences imposed on 12 October 2012 and 6 February 2017 rendered the applicant liable to serve a total period of imprisonment of four years and subjected him to the requirements of a probation order for three years.  That cannot be accepted.  The sentencing judge accurately described those sentences, the time the applicant had spent in custody under those sentences and the applicant’s compliance with the conditions of the probation order.  The sentencing judge also acknowledged the requirement to address the totality principle in terms that are accurate and not challenged in the application for leave to appeal.
34. [34]
    Furthermore, when the sentencing judge imposed the subject sentence it was known that the applicant had been required to serve in custody only eight months of the two year sentence of imprisonment suspended offer eight months’ imposed on 6 February 2017.  If, which I do not accept, the totality principle required the sentencing judge to take into account the circumstance that the applicant had at an earlier time been exposed to liability to serve the balance of that two year term, it would be within the sentencing discretion for the sentencing judge to consider that the extent of any allowance on that account would have no material effect upon the subject sentence.

(v): As to parole eligibility:

1. (a)
   When considering parole eligibility failed to give proper regard to the Applicant’s liability to serve 5 years of sentences that included actual imprisonment, liability to serve a suspended term and probation;
2. (b)
   Considering that the actual time in custody ought to be more than one third of the 9 year sentence (if the correct head sentence);
3. (c)
   Requiring the Applicant to serve an additional 16 months in custody on top of the 2 years 8 months served in custody on other sentences amounting to actual time in custody  that was beyond one third of the 9 year sentence (if the correct head sentence);
4. (d)
   Failed to order parole eligibility or suspension after 4 months as the proper sentence being one third actual time in custody on a 9 year head sentence (if the correct head sentence).

35. [35]
    My reasons concerning paragraph (iv) explain why I would reject paragraph (a).  Furthermore, for reasons already given, paragraph (a) does not identify a specific error such as would justify appellate interference in the sentence.  The same is true of sub-paragraphs (b) – (d), each of which addresses an issue within the sentencing judge’s discretion and none of which adverts to any error in the exercise of the sentencing discretion that is discoverable in the sentencing remarks.  Those sub-paragraphs assume it is appropriate to adopt an arithmetical approach to sentencing and that the common sentencing practice of fixing parole eligibility after one-third of the term of imprisonment should be departed from only in exceptional circumstances.  Neither assumption accords with sentencing principles.
36. [36]
    Upon the arithmetical approach advocated by the applicant’s counsel, the parole eligibility date should have been fixed after four months.  The calculation is set out in the applicant’s outline of submissions as follows:

    1. (a)
       9 years, PED 33% – 3 years PED.
    2. (b)
       The actual time served – 2 years 8 months.
    3. (c)
       Thus, on that basis, no more than 4 additional months ought to have been required prior to the PED being fixed, not a further 16 months as occurred here.
37. [37]
    Putting aside the errors in principle, that analysis overlooks the explanation for the structure of the sentence in the sentencing remarks adverted to in [18] and [20] of these reasons.  The notional total sentence of about nine years took into account at least some of the necessary allowance for the pleas of guilty, thereby avoiding the effect of a serious violent offence declaration (which would have been automatically applicable if a term of 10 years’ imprisonment were imposed) of deferring parole eligibility until after 80 per cent of the term had been served in custody.  In such circumstances, it is not uncommon for parole eligibility to be fixed well after one-third of the term has been served.
38. [38]
    It remains necessary to address the applicant’s contention that the sentence is manifestly excessive.  The reasons already given are relevant here.  As I have mentioned, this ground could succeed only if, “having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle”.^[14]
39. [39]
    The effective total sentence of the three sentences comprising the subject sentence and the preceding two sentences, was a term of 8.5 years’ imprisonment with a minimum custodial period of four years (two years and eight months served under the preceding two sentences, and a minimum of 16 months to be served under the subject sentence) and three years’ probation.  That notional total sentence resulted from the imposition of the subject sentence of 4.5 years’ imprisonment with parole eligibility after 16 months (less than one-third of that term), which was supported by submissions made for the applicant by his counsel at sentence.  The circumstance that the sentence imposed accorded with the sentence for which the applicant contended makes it difficult to accept that the subject sentence was “manifestly” excessive or “plainly” unjust.^[15]  Putting aside that consideration, I would in any event accept the respondent’s submission that, having regard to the circumstances already described, the sentence is not manifestly excessive.
40. [40]
    In relation to the subject offending, the maximum penalty for the maintaining offence (count 1) is life imprisonment and the maximum penalty for each of the seven indecent treatment offences is 20 years’ imprisonment.  The sentencing judge was obliged to apply the provisions in ss 9(4) – (6A) of the Penalties and Sentences Act 1992 which are applicable in sentencing an offender for an offence of a sexual nature committed in relation to a child under 16.
41. [41]
    Sexual offending against children is inherently serious.  If each indecent treatment offence were viewed in isolation it – particularly a count involving touching outside the clothing – might be thought not to be a particularly serious example of that offence.  When considered together, however, the offending in counts 2 – 8 itself called for a significant term of imprisonment and a period of actual custody.  Clearly, the maintaining offence of itself required a deterrent sentence which included a substantial period of actual custody, involving as it did, in addition to habitual touching of A’s vagina, frequent digital penetration of her vagina during the applicant’s approximately fortnightly visits to the child’s home within a period of approximately two years.  The victim impact statements describe seriously adverse emotional and behavioural impacts upon the children against whom the applicant offended.  The factors favouring the applicant are not insubstantial and it is common ground that it was necessary to moderate the sentence by application of the totality principle.  Giving full weight to those matters in the applicant’s favour, but also having regard to the applicant’s criminal history of sexual offending against children, the aggravating features of the offending – particularly the grooming elements of the offending, the way in which the applicant took advantage of his friendship with the children’s father to offend against the children in their own home, and the circumstance that the applicant committed some of his offending whilst on bail upon charges of other sexual offending against children – I am unpersuaded that his sentence is at all excessive.
42. [42]
    In addition to the sentencing decisions cited to the sentencing judge (R v SAG,^[16] R v WAH,^[17] R v Auer; Ex parte Attorney-General (Qld),^[18] R v EH,^[19] R v McCoy,^[20] R v UC,^[21] and R v Dillon^[22]), the applicant’s counsel relies upon R v PAM,^[23] R v Levack; Ex parte Attorney-General (Qld),^[24] R v KAJ, Ex parte Attorney-General (Qld),^[25] and R v BCW.^[26]
43. [43]
    The head sentence of six years’ imprisonment in each of UC and WAH is consistent with a similar head sentence being imposed for the subject offending in this case if it were unaffected by totality considerations, thereby supplying support for the conclusion that the less severe sentence actually imposed was moderated appropriately for totality considerations.  In each of WAH and UC the offender was convicted after a trial and sentenced to six years’ imprisonment with parole eligibility after three years:

    1. (a)
       In WAH the offender was convicted of four counts of rape, three counts of indecent treatment, and one count of maintaining a sexual relationship with a child.  The offending was of a similar nature to the offending in this case.  The two complainants were sisters aged six and seven when the offending commenced.  They were step-children of the offender’s son.  The maintaining offence was committed during a period which exceeded two years on occasions when the complainants visited the offender’s house.  Keane JA described the sentence as “distinctly moderate”.  The absence of remorse impacted upon the head sentence (as well as the parole eligibility date) but aggravating factors in the present matter – particularly the applicant’s criminal history and his offending whilst on bail – were not present in WAH.
    2. (b)
       In UC, the offending was more serious overall and it was committed against the offender’s daughter, but there was only one complainant, she was older than A (she was aged between 13 and 15), and the offender did not have a criminal history.
44. [44]
    The notional total sentence for the subject offending and the offending the subject of the two preceding sentences of 8.5 years’ imprisonment, with a minimum custodial period of four years, and three years’ probation, appropriately reflected the applicant’s total criminality in the many sexual offences he committed on numerous occasions during a long period against five young children, three of whom were between eight and 11, and two of whom were as young as five or six.  As was submitted for the respondent, Auer is the most helpful decision in relation to the appropriateness of the notional total sentence in this matter.
45. [45]
    In Auer, the Court allowed the Attorney-General’s appeal against an effective sentence of seven years’ imprisonment (4 years for a maintaining offence and a cumulative term of three years for one count of rape, involving digital penetration), with lesser concurrent terms for four counts of rape (involving digital penetration) and 10 counts of indecent treatment of a child under 16, under 12 (five of those counts being under the offender’s care), and parole eligibility fixed on a date that was effectively two and a half years from when the sentence began.  The effective sentence substituted on appeal was nine years’ imprisonment imposed for the maintaining offence, the other sentences to be served concurrently.  No parole eligibility date was fixed on appeal, so that eligibility for parole would arise after 4.5 years.
46. [46]
    In the maintaining offence, during a period of four months the applicant digitally penetrated an eight or nine year old complainant’s labia and rubbed her vagina about twice a month, during a three week period he wiped her vagina every night, on four or five occasions he rubbed or tickled her vagina, and on two occasions he helped the complainant masturbate herself (in addition to similar conduct in one indecent treatment offence involving the same complainant.)  Most of the indecent treatment offences involved touching complainants’ vaginas, mostly under clothing.  Five of the six complainants were between seven and nine, and one complainant (who the offender indecently dealt with once by touching her vagina) was five.  The circumstance that there were six complainants (rather than five complainants, as in the relevant totality of the applicant’s offending) is not a substantial point of distinction.  Some of that offender’s conduct was worse than that of the applicant, but the applicant’s offending (most relevantly, the frequent digital penetration in his maintaining offence against A) was committed during a far longer period.  Overall, the offending in that case was of similar seriousness to the applicant’s offending.  That offender had a history of sexual offending which was similar to but somewhat worse than the applicant’s history.  That offender cooperated with the authorities and pleaded guilty.  His personal circumstances, particularly his prospects of rehabilitation, were generally less favourable than those of the applicant, but 12 of the 16 counts against that offender, including the maintaining offence, depended solely or substantially upon admissions he made.  The sentence imposed on appeal in Auer supplies strong support for the view that the applicant’s sentence fell within the sentencing judge’s discretion.
47. [47]
    I will briefly explain why the other sentencing decisions cited for the applicant do not justify appellate interference in this sentence.  For the reasons given in Auer,^[27]  neither Dillon (which involved four complainants) nor Levack (which involved six complainants) assists the applicant.  In EH, none of the offences involved penetration and the offender did not have a relevant criminal history.  The applicant’s counsel at sentence appropriately relied upon McCoy only for statements in it about the totality principle.^[28]  SAG is plainly not a comparable sentencing decision.  In PAM, there was only one complainant, the offender’s criminal history did not include sexual offending, and the decision was only that a sentence of eight years’ imprisonment for offending of a much worse character than the applicant’s offending was not manifestly excessive.  KAJ concerned a single complainant aged 11, the offender did not have a relevant criminal history, and there are other material differences between the circumstance of that case and this one.  The circumstances of BCW differ markedly from the circumstance of this case and the decision was only to refuse the application for leave to appeal.

Proposed order

48. [48]
    I would refuse the application for leave to appeal against sentence.
49. [49]
    BOND JA:  I agree with the reasons for judgment of Fraser JA and with the order proposed by his Honour.
50. [50]
    DAUBNEY J:  I agree with Fraser JA.