R v SDR[2022] QCA 93

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER and MULLINS JJA:  We have had the advantage of reading in draft the reasons of Boddice J.  We gratefully adopt his Honour’s description of the circumstances of the offences to which the applicant pleaded guilty and the applicant’s personal circumstances.  Although his Honour does not find it necessary to adjudicate upon the ground of appeal that the sentence is manifestly excessive in all the circumstances, his Honour’s analysis (at [12] – [21], [25], [29], [41], [44], and [52]) informs our conclusions that the sentence imposed upon the applicant is manifestly excessive and the appropriate sentence is that which is proposed by his Honour.
2. [2]
   The remaining ground of appeal is that the sentencing judge erred in failing to invite submissions from the parties regarding the imposition of a sentence requiring an automatic serious violent offence declaration.
3. [3]
   It is not in doubt that the principle of procedural fairness that a person is entitled to adequate notice and opportunity to be heard before a judicial order is pronounced against the person applies in sentence hearings.  In R v JAB^[1] the Court (Sofronoff P and Boddice and Ryan JJ) mentioned some of the sentencing decisions in which those principles have been applied.^[2]  The Court added the following observations:^[3]

“That principle does not oblige a sentencing Judge to set out each and every alternative available in sentencing a defendant.  As Atkinson J observed in R v Robertson:

‘Counsel who appear before judges on sentences are expected to know the provisions of Queensland’s sentencing law and to make relevant submissions.

Unless the judge is considering imposing a sentence which may be considered unusual or an additional penalty which is unusual, there is no obligation upon a sentencing judge to advise counsel of the sentence that may be imposed and to seek specific submissions on that.’ (footnote omitted).

Whether a sentencing Judge’s sentence may be considered unusual or involving an additional penalty will depend upon the circumstances of a particular case.  A sentence would not normally be considered unusual or an additional penalty if its content can properly be said to have fallen within the contemplation of the parties, having regard to the issues in dispute at sentence and the submissions made by the parties at that sentence hearing.

As Atkinson J said in R v Robertson in the passage above, unless a judge is considering imposing a sentence which may be considered ‘unusual or an additional penalty which is unusual’, there is no obligation upon the judge to advise counsel of that possible outcome.  The reason why that is so is twofold.

First, as her Honour said, judges make decisions upon the basis that counsel who appear before them know the law that bears directly upon the case at hand.  Judges are entitled to act upon the footing that, if a particular order ought to reasonably be with the parties’ contemplation having regard to the circumstances of a case, then the silence of counsel upon that issue can be taken by the judge to be the result of a professional judgment that there was nothing useful for counsel to say about it.  Second, judges do not expect, and do not want, counsel to make submissions about orders that are evidently not going to be made and counsel should not waste time making them.

It follows that if a judge is thinking about making an order that, despite appearances, might be made, then the judge is obliged to give the parties a fair opportunity to be heard upon that issue.  Otherwise, in accordance with expected practice, the judge’s silence, despite having that course in mind, would mislead counsel into believing that no submissions were necessary.

That being so, the word “unusual”, as used in Robertson, should not be misunderstood to be a term of art or as stating a “test” that can be applied.  The word was merely an apt adjective to describe an order which the aggrieved party could not reasonably have been expected to have in mind before it was made.

In short, the real issue is whether a judge’s omission to give the parties notice that a particular order might be made has resulted in a failure to afford the parties a reasonable opportunity to be heard.”

4. [4]
   In this application it is also necessary to bear in mind the important principle that a sentencing judge is not constrained by submissions about the appropriate range or kind of sentence that should be imposed:  “it is for the sentencing judge, alone, to decide the sentence to be imposed.”^[4]  To say as much is not to suggest that the parties’ submissions at a sentence hearing may not be significant for a decision whether the absence of advance notice of a particular order amounts to procedural unfairness.  But, just as counsel who appear in sentence hearings are assumed to know the provisions of Queensland’s sentencing law, sentence hearings proceed upon the premise that the sentencing judge’s responsibility is to impose what he or she decides is the appropriate sentence, regardless whether it does or does not accord with the submissions of the parties.
5. [5]
   At the sentence hearing, counsel for the Crown submitted that a range for the offending in a global sense was six to eight years imprisonment.  His following submission that R v WBL^[5] concerned a head sentence of nine and a half years imprisonment drew an immediate inquiry from the sentencing judge whether that was a case in which the Court of Appeal had said that nine and a half years was the outer limit for this kind of offending.
6. [6]
   Again, when the counsel for the Crown referred to a paragraph in R v CCK^[6] which discussed a sentence of 10 years imprisonment for maintaining offences imposed in another case, the sentencing judge observed that it was hard to reconcile all the authorities but there were cases of a single incident of rape of a young child where sentences of eight years imprisonment had been imposed without any gross physical injury, and the present matter was a “case of regular rape for 13 months”.
7. [7]
   The response by counsel for the Crown was that in cases like CCK, in which there were maintaining charges over longer periods and in relation to multiple children, that certainly extended the range upwards towards 10 years imprisonment, “if not beyond, before moderation”.  That submission drew the response by the sentencing judge that cases before 2010 were less relevant because of the amendments to the Penalties and Sentences Act 1992.
8. [8]
   Counsel for the defendant conceded in his opening submission that a sentence of six years imprisonment was too lenient.  He submitted that a sentence in the order of seven to eight years imprisonment might be considered appropriate, he adverted to R v CCK, and he remarked that it was a sentence of 10 years imprisonment “which led to, of course, the mandatory sentencing as a serious violent offence”.  Counsel for the defendant then made submissions directed to distinguishing that case upon the ground that a sentence of 10 years imprisonment was appropriate where features of the offending were more serious than in the subject case.  He made a similar submission with a view to distinguishing R v WBL.  Furthermore, at a later point in his submissions advocating a sentence in the order of seven to eight years imprisonment, the sentencing judge remarked, “but this is a case where there has been repeated rapes over a 12 month period … Of a nine to 10 year old child … Each one of those carries a maximum of life imprisonment”.
9. [9]
   Counsel must be taken to have appreciated – as counsel for the defendant plainly did appreciate – that if the sentencing judge decided that the appropriate sentence was ten years imprisonment, that would attract the mandatory declaration that this was a serious and violent offence, with the consequence that eligibility for parole would be deferred until after the appellant had served 80 per cent of the term imposed.
10. [10]
    The present case is to be distinguished from one in which the making of a serious violent offence declaration is discretionary, the stated circumstances of the offence do not themselves make plain the appropriateness of such a declaration, and the prosecutor does not make submissions about such a declaration.^[7]  In this case, the submissions of both counsel discussed sentences in the order of 10 years imprisonment which were imposed in cases cited as comparable sentencing decisions.  And, whilst counsel for the Crown did not advocate a sentence of or exceeding 10 years imprisonment, remarks made by the sentencing judge at the hearing conveyed that such a sentence might be under consideration.  The sentencing judge therefore did not fail to afford the parties a reasonable opportunity to be heard.
11. [11]
    We agree with the orders proposed by Boddice J.
12. [12]
    BODDICE J:  On 11 June 2021, the applicant pleaded guilty to one count of maintaining a sexual relationship with a child, two counts of rape and three counts of indecently dealing with a child under 12 years.
13. [13]
    On the same date, the applicant was sentenced to 10 years’ imprisonment, in respect of the count of maintaining a sexual relationship with a child.  As a consequence, he was declared to have been convicted of a serious violent offence, requiring that he serve 80 per cent of his sentence before being eligible for parole.
14. [14]
    The sentencing Judge convicted but not further punished the applicant in respect of each count of rape and one count of indecent dealing with a child under 12 years.  Concurrent periods of two years’ imprisonment were imposed for the remaining counts of indecent dealing with a child under 12 years.
15. [15]
    The applicant seeks leave to appeal the sentence.  Should leave be granted, two grounds are relied upon by the applicant.  First, that the sentencing Judge erred in failing to invite submissions from the parties regarding the imposition of a sentence requiring an automatic serious violent offence declaration.  Second, that the sentence is manifestly excessive in all the circumstances.

Background

16. [16]
    The applicant was born on 4 January 1976.  He was aged 42 to 44 years at the time of the offences.  The applicant did not have any prior criminal history.  He had two entries for breach of bail, subsequently.  No weight was placed on these entries by the sentencing Judge. 
17. [17]
    The offences related to two female complainants.  At the time of the offending, the applicant was responsible for babysitting each complainant.

Offences

18. [18]
    The count of maintaining, together with the counts of rape and one count of indecent dealing with a child under 12 related to the first complainant.  She was aged nine to 10 years.  The maintaining count covered a period of just over 13 months, during which period the applicant visited the first complainant’s home approximately once a week.  The specific charges of rape concerned digital penetration and penile penetration.  The indecent dealing related to touching the child’s breasts under her clothing.
19. [19]
    The remaining counts related to the second complainant.  Both occurred on the same date, whilst that complainant was visiting the first complainant’s home.  The second complainant was aged nine years.  One count related to putting his hand in the second complainant’s swimwear and rubbing her genital area.  The other count related to later rubbing her bottom.  The applicant desisted when that complainant protested his conduct.
20. [20]
    The offending came to the attention of authorities when the second complainant made disclosures.  Subsequent questioning of the first complainant led to disclosures of the other offending conduct.
21. [21]
    The applicant, when confronted, made admission but sought to minimise his conduct by suggesting any touching of the second complainant had been accidental.  A subsequent police interview also contained admissions but with a minimisation of the severity of his conduct.

Sentence hearing

22. [22]
    The prosecutor submitted that the applicant’s plea of guilty was a timely plea but noted that the conduct involved a significant breach of trust against two child victims under the age of 12 years by an offender who was more than 30 years older.  The maintaining count spanned 13 months.  The offending had also occurred in the first complainant’s home.  Penetration included both digital and penile penetration.  Further, the conduct had had a significant detrimental effect on both complainants.
23. [23]
    The prosecutor referred to a number of comparable authorities^[8] before submitting that a sentence of six to eight years’ imprisonment could be within range to reflect the applicant’s criminality on a global basis with parole eligibility fixed at the one third mark.
24. [24]
    Defence counsel accepted at the outset that a sentence of six years would be too low but submitted that a sentence of seven to eight years fell within the sentencing discretion.  Defence counsel submitted the plea had utility, as the complainants had not been required to give evidence.  Further, the applicant had no previous convictions, was accepting of the prospect of a lengthy prison sentence, with intention to access rehabilitative programs whilst in custody, had a good work history and the offending occurred when the applicant was excessively using alcohol and cannabis.  Defence counsel submitted that a further comparable sentence^[9] involved more serious conduct.

Sentencing remarks

25. [25]
    The sentencing Judge observed that the applicant’s offending involved the rape of a nine year old child many times over a 13 month period by a trusted family friend, who had acted as babysitter.  The rapes included digital and penile penetration of the vagina causing physical pain.  The rapes continued despite protestation by the child.  As a consequence, that child was riddled with anxiety, suffered mood swings and no longer respected her own body.
26. [26]
    The sentencing Judge further observed that after the cessation of the maintaining period, the applicant had indecently dealt with a female friend of the first complainant who was also under the applicant’s care.  The applicant had persisted despite resistance.  That complainant changed from a carefree girl to one who distrusts all men and recoils from innocent physical touch.
27. [27]
    The sentencing Judge recorded that the applicant had pleaded guilty and that the plea was of value, but observed that when the applicant was first interviewed he had denied sexual contact and whilst admitting some contact he had claimed it was accidental.  Further, whilst the applicant had not used gratuitous violence, the applicant was stronger and much older than the complainants and had tried to buy the relationship with the first complainant by giving her gifts.
28. [28]
    The sentencing Judge recorded that the applicant was a middle-aged man with no prior criminal record who, for more than a year, took gratification from the violation of a prepubescent child, frequently raping her.  He had also offended against a second young victim.  Those offences involved a gross betrayal of trust, with the infliction of immeasurable harm.
29. [29]
    The sentencing Judge further recorded that the offences of rape, as well as the relationship for offence, were so serious that Parliament had set a maximum penalty of life imprisonment for each and that the safety of children are paramount.

Applicant’s submission

30. [30]
    The applicant submits that whilst the sentencing Judge, in submissions, queried whether a sentence of six to eight years properly reflected the applicant’s criminality, at no stage was the applicant informed that the sentencing Judge was considering a sentence of ten years or more, with the consequence of the automatic imposition of a serious violent offence declaration.  The failure to do so deprived him of procedural fairness.  The applicant would have been able to make submissions to the effect that a serious violent offence declaration ought to cause the sentencing Judge to impose a sentence at the lower end of the applicable yardsticks;^[10] and that a sentence of 10 years or more would fail to properly recognise the value of the applicant’s pleas.
31. [31]
    The applicant further submits that, having regard to comparable yardsticks, a sentence of 10 years’ imprisonment was manifestly excessive.  Whilst the applicant offended against two young female complainants and had maintained a relationship with one of the female complainants over an extended period, with multiple acts of rape, a sentence of nine years’ imprisonment properly reflected the value of the applicant’s timely pleas of guilty, his lack of previous criminal history and his personal circumstances.

Respondent’s submissions

32. [32]
    The respondent submits that there was no obligation on the sentencing Judge to inform the parties she was considering imposing a sentence of 10 or more years.  An obligation to give adequate notice and opportunity to be heard only arises where the sentence would be regarded as unusual.  In the present case, the parties had ample opportunity to make full and extensive submissions.  The sentencing Judge clearly indicated disagreement with the sentencing yardsticks proposed by both the Crown prosecutor and defence counsel.
33. [33]
    The respondent further submits that a sentence of 10 years’ imprisonment was not manifestly excessive.  The applicant was a mature offender, who engaged in a protracted course of penile rape in breach of trust.  There was also sexual offending against a second complainant.  The pleas of guilty, although having value, were not indicative of remorse for his brazen offending, which had had a profound and significant impact on each complainant.

Consideration

34. [34]
    Whilst a sentence hearing includes submissions by the prosecution and defence as to the applicable sentence for the offending conduct, the imposition of a sentence is ultimately for the sentencing Judge.  Accordingly, there is no obligation upon a Judge to advise counsel in advance of the sentence to be imposed for that criminality.
35. [35]
    However, a sentence hearing, like any judicial proceeding, is subject to the principles of natural justice.  Those principles require a party to be given adequate notice and opportunity to be heard before announcement of any judicial order.^[11]  Accordingly, there is an obligation on a sentencing Judge to advise the parties in advance if a sentencing Judge is considering making an order which the aggrieved party could not reasonably have been expected to have in mind before it was made.^[12]
36. [36]
    What orders could reasonably have been expected to have been made is to be determined having regard to the circumstances of a particular case, including the submissions made on sentence.
37. [37]
    In the present case, both the prosecution and defence had been placed on notice by the sentencing Judge that a sentence as low as eight years did not reflect the applicant’s overall criminality, even allowing for his pleas of guilty and personal circumstances.  However, that notice did not include advising that the sentencing Judge was considering the imposition of a sentence of 10 years or more, with the consequence of an automatic serious violent offence declaration.
38. [38]
    Further, it could not be said the applicant was on notice that such a sentence could reasonably be expected for his offending conduct.  The prosecution had not contended for the making of a serious violent offence declaration and had referred to comparable authorities supportive of the imposition of a global head sentence far below a sentence requiring an automatic declaration of a serious violent offence.
39. [39]
    Whilst defence counsel had referred to a comparable, which involved the imposition of a sentence of 10 years’ imprisonment, those submissions were made in the context of a contention that the offending conduct in that case was far more serious.  That reference, in those circumstances, did not relieve the sentencing Judge of an obligation to give notice before imposing a sentence of 10 years’ imprisonment.
40. [40]
    The principles of natural justice required the sentencing Judge to give due notice as the imposition of a sentence resulting in an automatic declaration of a serious violent offence requires the sentencing Judge to consider the consequences of that declaration, including the imposition of a sentence at the lower end of the comparable yardsticks, together with a consideration as to whether such a sentence properly reflects the value of any plea of guilty.
41. [41]
    In the present case, the applicant had entered timely pleas of guilty, which were recognised to be of value.  Those pleas were required to be recognised in any sentence imposed for the applicant’s offending conduct.
42. [42]
    In the circumstances of this proceeding, the failure to afford the applicant the opportunity to make submissions about the imposition of a sentence of 10 years’ imprisonment did breach the principles of natural justice.  As a consequence, the sentencing discretion miscarried and it is necessary to re-exercise that discretion.
43. [43]
    A conclusion that the sentencing discretion miscarried renders it unnecessary to consider the remaining ground of appeal.

Resentence

44. [44]
    A consideration of the comparable yardsticks supports a conclusion that protracted sexual offending against children by adults in positions of trust will attract sentences of nine to 11 years’ imprisonment, at least.
45. [45]
    In WBL,^[13] a sentence of nine and a half years’ imprisonment was imposed for maintaining an unlawful sexual relationship for three years with a seven or eight year old complainant by a person in a position of trust, who also indecently dealt with the complainant’s sister.  That offending included anal rape.  That sentence had been reduced from 13 years’ imprisonment to account for totality and other mitigating factors.
46. [46]
    In CCK,^[14] a sentence of 10 years’ imprisonment was imposed in respect of a mature applicant who entered early pleas of guilty to two counts of maintaining an unlawful sexual relationship with his two daughters.  Whilst the offending in relation to the older daughter did not involve penile rape, the offending in respect of the other daughter began after the conclusion of the unlawful sexual relationship with the older daughter and did include sexual intercourse.  The offending also involved threats and emotional blackmail.
47. [47]
    In the present case, the applicant engaged in protracted sexual offending against a prepubescent female, who was in his care.  The offending included penetration, both digital and penile.  The applicant persisted in that conduct, notwithstanding protestations and complaints of pain.  Further, the applicant sexually offended against a second prepubescent female, while she attended the first complainant’s house.
48. [48]
    Whilst the applicant had no prior criminal history, that circumstance detracted little from the seriousness of sustained sexual offending by a mature aged man, decades older than the complainant children.  The applicant did, however, enter timely pleas of guilty, which had value.  As a consequence of those pleas, the children were not required to give evidence, a significant mitigating factor. 
49. [49]
    Absent those pleas of guilty, the applicant’s offending would attract a sentence of at least 10 years’ imprisonment.  However, the period of imprisonment is properly to be reduced to reflect the applicant’s pleas of guilty.
50. [50]
    Balancing the aggravating and mitigating features, I would order that the applicant be sentenced to imprisonment for nine years in respect of the maintaining count.  As the counts of rape and the count of indecent dealing of a child under 12 under care were committed in the course of that maintaining count, the applicant should be convicted, but not further punished, of each of those counts.
51. [51]
    The applicant’s offending against the second female complainant was less serious, in that it did not involve penetration.  Concurrent sentences of two years’ imprisonment in respect of each of the remaining counts properly reflects the applicant’s offending in respect of that complainant.
52. [52]
    The applicant’s pleas of guilty have been reflected in a substantial reduction in the head sentence.  Accordingly, the applicant should not be the beneficiary of a parole eligibility date earlier than provided by the Penalties and Sentences Act 1992.

Orders

53. [53]
    I would order:

1. Leave to appeal be granted.
2. Appeal against sentence be allowed.
3. The sentence of 10 years’ imprisonment imposed in respect of count 1 be set aside.
4. The applicant be sentenced to nine years’ imprisonment in respect of count 1.
5. The sentences in respect of the remaining counts be confirmed.