R v Lewis[2022] QCA 64

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I have had the advantage of reading the reasons for judgment of Boddice J.  I agree with those reasons and with the order proposed by his Honour.
2. [2]
   MULLINS JA:  I agree with Boddice J.
3. [3]
   BODDICE J:  On 10 February 2022, the applicant pleaded guilty to five counts of indecent treatment of a child under 16, under 12.  On 11 February 2022, the applicant was sentenced to an effective head sentence of 18 months imprisonment, suspended after serving three months, for an operation period of 18 months.
4. [4]
   The applicant seeks leave to appeal his sentence.  Should leave be granted, three grounds of appeal are relied upon by the applicant.
5. [5]
   First, the sentencing judge erred in finding an accumulation of circumstances were not “exceptional”.  Second, the sentencing judge erred by failing to properly apply the principles of totality.  Third, the sentence imposed was manifestly excessive in the circumstances.

Background

6. [6]
   The applicant was born in 1942.  He had a criminal history which included conviction for aggravated assault on a female child under 17 years of age, in 1986, and indecent treatment of children under 16 in 2017 and 2019.
7. [7]
   All of the previous offences concerned offending committed by the applicant whilst a teacher.  The complainants were children in his class.  The conviction in 1986 brought an end to the applicant’s teaching career.
8. [8]
   The convictions in 1986 concerned seven counts involving four complainants aged between nine and 10 years who had been touched on their vagina, buttocks, back and hip area under their clothing over a three month period in 1986.  The applicant was sentenced to three months imprisonment.
9. [9]
   The convictions in 2017 concerned 11 counts involving five female complainants, also aged between nine and 10 years.  In respect of two of the complainants, the applicant had digitally penetrated their vaginas on four occasions.  The applicant was also convicted of two offences of common assault against a male complainant who said something after seeing one of the indecent dealings.  All of the offences were committed between 1976 and 1978.  The applicant was sentenced to an effective head sentence of three years imprisonment, suspended after serving four months, for an operational period of three years.
10. [10]
    The convictions in 2019 concerned 14 counts involving eight complainants aged between eight and 12 years.  All of the offences were committed between 1974 and 1977.  The offending involved rubbing the breast, buttocks or vaginas of the complainants.  On two occasions, that conduct occurred underneath their clothing.  The applicant was sentenced to an effective head sentence of two years imprisonment, suspended after serving four months, for an operation period of two years.

Offences

11. [11]
    The offences the subject of this application were committed against three separate complainants in 1979.  All three complainants were aged nine to 10 years.  The applicant rubbed the first complainant’s vagina and thigh underneath her underwear and on two other occasions had put his hand up her school dress and rubbed her vagina underneath her underwear.  The applicant lifted the dress of the second complainant, pulled open her underwear and looked at her vagina.  The applicant put his hand up the third complainant’s dress inside her underwear and digitally penetrated her vagina.

Sentencing remarks

12. [12]
    The sentencing judge recorded that the applicant had pleaded guilty to the offences, all of which had occurred in 1979 when he was a teacher of a grade 5 class.  Each of the counts involved isolation of the complainant before placing his hands under their clothes.  It was not uncommon for this touching to occur in front of the class.  All three complainants described the conduct as persistent and as having occurred numerous times throughout the year.  Each described lifelong consequences from his actions.  Each referred to the fear, anxiety and trauma experienced in simply attending school.
13. [13]
    The sentencing judge further recorded that the applicant’s offending first came to light many years later during private hearings in the Royal Commission into Institutional Responses to Child Sex Abuse.  Whilst none of the complainants in the offences before the Court came forward at that time, his offending against them came to light as a result of an investigation conducted in Hervey Bay as a result of disclosures in mid-2020.
14. [14]
    The sentencing judge found that the applicant’s conduct against those children constituted a gross abuse of trust.  He was their teacher and they were young and vulnerable children placed in his care.  His conduct was persistent and brazen.  General deterrence and denunciation and recognition of the impact of the offending upon the victims were important principles in any sentence.
15. [15]
    The sentencing judge accepted there was no aspect of general deterrence as the applicant was no longer teaching young children and had not done so since 1986.  Further, the applicant had lived a significant period since without further offending, whilst contributing to the community and having a family of his own.
16. [16]
    The sentencing judge accepted that the applicant had pleaded guilty at an early stage and was to be given the benefit of those pleas and of the cooperation which had saved the complainants from giving evidence and saved the time and expense of a trial.  The sentencing judge accepted it was an indication of remorse.
17. [17]
    The sentencing judge accepted there had been a significant delay in the prosecution of the offences.  That delay meant the applicant had come before the Court for like offending on four separate occasions resulting in separate sentences, each of which had required the applicant to serve time in actual custody.
18. [18]
    The sentencing judge also accepted the delay in the prosecution of the offences occurred in the context of rehabilitation and a complete absence of reoffending since the first period of imprisonment in 1986.  However, those circumstances, together with the applicant’s personal circumstances (including his advanced age and associated health conditions) and the hardship to be caused by further incarceration to him and his own family in the context of having twice been returned to custody in respect of offences that predated his first period of imprisonment, did not constitute exceptional circumstances allowing for the imposition of a sentence that did not require the applicant to serve actual custody.  Those matters did, however, justify an order for earlier release.
19. [19]
    Allowing for those factors, the sentencing judge imposed an overall head sentence of 18 months imprisonment, suspended after serving three months, for an operational period of 18 months.

Submissions

Applicant’s submissions

20. [20]
    The applicant submits that the sentencing judge erred in imposing a period of actual imprisonment.  The offending was no more serious than that previously dealt with and did not significantly increase the total number of complainants.  Those circumstances, in the context of the applicant having already been imprisoned for similar offending on three prior occasions, supported a conclusion that there were exceptional circumstances such that the applicant not be required to serve a period of actual imprisonment.
21. [21]
    The applicant further submits that an overall effective head sentence, for all of the applicant’s offending, of five years and eight months with a requirement that the applicant serve further actual custody was manifestly excessive as the resulting sentence was not just or appropriate.

Respondent’s submissions

22. [22]
    The respondent submits that there was no error in the exercise of the sentencing discretion.  The sentencing judge had regard to all relevant considerations, including that further incarceration would be a greater burden on the applicant and would cause particular hardship for his wife.  The applicant’s offending involved the abuse of his position as a teacher in respect of a further three complainants which included an instance of digital penetration.  Against that background, there was no error in the sentencing judge’s conclusion that the circumstances were not exceptional.
23. [23]
    The respondent further submits that the overall effective head sentence was not manifestly excessive, nor was the requirement that the applicant serve further actual imprisonment.  The overall effective head sentence was consistent with comparable yardsticks.^[1]  The applicant had, in total, been convicted of 37 indecent dealing offences relating to 20 complainants over a 12 year period between 1974 and 1986.  The applicant was only required to serve a period of 14 months in actual custody for such offending.

Consideration

24. [24]
    Whilst the applicant had, at the time of sentence, served three separate periods of actual custody, there was no error in the sentencing judge’s conclusion that that circumstance, allowing for the applicant’s early pleas of guilty, cooperation, rehabilitation in the context of substantial delay and long period of non-offending, did not amount to exceptional circumstances warranting a sentence that did not require the applicant to serve further time in custody.
25. [25]
    The applicant’s offending constituted an egregious breach of trust by a teacher acting in his professional capacity.  All three young complainants were pupils in his class.  One was the subject of digital penetration.  All suffered lifelong consequences.  Notwithstanding there was no need for personal deterrence, general deterrence and denunciation warranted the imposition of a sentence requiring actual custody.
26. [26]
    Further, an effective head sentence of 18 months for such offending was not manifestly excessive.  Whilst that was imposed after three, separate sentences had been imposed for similar offending against other complainants, a consideration of the total number of complainants, the persistent nature of the criminal conduct engaged in over a period of 12 years and the brazen nature of that conduct, supports a conclusion that an overall effective head sentence of five years eight months imprisonment was consistent with comparable authorities.
27. [27]
    In McArdle, a sentence of six years imprisonment, with eligibility for release after two years, was not disturbed on appeal in respect of an ordained priest convicted of over 60 counts against 16 children throughout a period spanning 22 years.  In R v C; Ex parte Attorney-General (Qld), a sentence of three and a half years imprisonment, suspended after 14 months for an operational period of four years, was not interfered with on appeal in relation to 34 counts of indecent dealing by a parish priest over a period of almost nine years against 22 children.  Whilst that offending also involved a gross betrayal of trust, the applicant’s conduct involves substantially more complainants, more occasions of digital penetration and extended over a longer period of time.
28. [28]
    Similarly, a requirement that the applicant serve a total of 14 months of those sentences of imprisonment in actual custody was not unjust.  It properly reflected his cooperation, his expressed remorse and rehabilitation and the hardship occasioned by a return to actual custody on three separate occasions.

Conclusion

29. [29]
    The applicant has not established specific error or that the sentence imposed was manifestly excessive in the circumstances.

Order

30. [30]
    I would order that leave to appeal be refused.