R v Misi[2023] QCA 34

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 16 September 2021, the respondent pleaded guilty to taking a child under 12 for immoral purposes (count 1), two counts of indecent treatment of a child under 16, under 12 (counts 2 and 4) and rape (count 3).  He also pleaded guilty at the same time to five counts on a second indictment of failure to comply with reporting obligations pursuant to the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) (the Act).  On 30 November 2021, he was sentenced to seven years’ imprisonment for count 1 and it was declared he had been convicted of a serious violent offence.  Concurrent sentences of three years’ imprisonment for each of counts 2 and 4 and four years’ imprisonment for count 3 were imposed.  For each of the failure to comply with reporting obligations counts, he was sentenced to three years’ imprisonment to be served concurrently with the other sentences.  A declaration was made pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) (PSA) that he had been in presentence custody for the period of 596 days between 13 April 2020 and 29 November 2021 and that period was declared to be imprisonment already served under the sentences.
2. [2]
   The Attorney-General appeals against the sentences on the ground of manifest inadequacy.  The appellant’s submissions focus on the sentences imposed for the taking a child under 12 for immoral purposes and the rape.  The appellant does not point to any specific error of principle but submits the exercise of the sentencing discretion was affected by an implied error in that the penalty imposed in all the circumstances of the offending was manifestly too low which made it plainly unjust and unreasonable.
3. [3]
   The maximum penalty for count 1 pursuant to s 219(3)(b) of the Criminal Code (Qld) was imprisonment for 14 years.  The maximum penalty for each of counts 2 and 4 pursuant to s 210 of the Code was imprisonment for 20 years.  The maximum penalty for count 3 pursuant to s 349(1) of the Code was life imprisonment.  The maximum penalty for each count of failure to comply with reporting obligations pursuant to s 50(1) of the Act was 300 penalty units or imprisonment for five years.
4. [4]
   There was no issue that s 9(4) and s 9(6) of the PSA applied to sentencing for the sexual offences committed by the respondent.  There was also no issue that the primary purposes of sentencing for the serious sexual offending committed by the respondent against a child were general and personal deterrence, denunciation of the sexual offending committed by the respondent and the protection of the community from the respondent.

The circumstances of the offending

5. [5]
   The complainant child had turned nine years old some days prior to the offending and did not know the respondent.  She lived with her mother and siblings in a caravan park.  At around 5.30 pm on 6 April 2020, the complainant’s mother walked to nearby shops to buy groceries for dinner.  The complainant and one of her sisters went outside to play games with friends.  The respondent rode his bicycle into the caravan park and did a few laps of the grounds.  He watched the children play hide and seek.  He waited until the complainant was alone and then called out to her “Do you want some money?”.  The complainant went over to him.  He told her to “come” and she followed him (count 1). He took her into the sitting area of a closed off area behind a building that provided some privacy.  He sat down on a chair and gave her several coins.  He pulled her over to a remote corner of the area and removed his erect penis from his pants (count 2). He held his penis in his hand and then put it away.  He then pulled down the complainant’s pants and underwear and placed two of his fingertips inside the complainant’s vagina up to the first knuckle (count 3) before removing them.  The complainant was shaking and crying.  He laid the complainant on the ground and placed his mouth on her vagina (count 4).  He licked her vagina for a short time before the complainant pulled her pants back up.  The respondent got back on his bicycle and left.  The complainant went back to her friends.
6. [6]
   Eventually that evening the complainant told her mother what happened.  A photo of the respondent was taken from the CCTV footage for the caravan park and a complaint made to the police.  There was some delay in locating the respondent as the police did not have a current address for him, as he was not complying with his reporting obligations under the Act.  When the respondent was arrested on 13 April 2020, he did not participate in an interview.

The respondent’s antecedents

7. [7]
   The respondent was 29 years old when he offended against the complainant.  His criminal history commenced when he was 17 years old.  There were many entries for property offences, minor drug offending, dishonesty offences, assaults and breaches of bail.  He committed two sexual offences against children in 2013 for which he was sentenced in the District Court on 23 October 2014.  The first offence of attempted indecent treatment of a child under the age of 16 was committed when he went into the bedroom of a 13 year old girl while she was sleeping, put his hand on her hip and tried to get her to roll over.  She did not do so, the respondent begged her to change her mind which she did not and he left.  He committed the second offence of indecent treatment of a child under 16, under 12 when he stood by the bed of a six year old girl in the same house some months later, pulled down her pants and placed his penis in the area of her bottom.  For the indecent treatment offence, he was sentenced to imprisonment for 18 months to be suspended after serving 226 days for an operational period of 18 months.  At the date of the sentence he had already served 226 days for which a presentence custody declaration was made.  For the attempted indecent treatment offence, he was placed on probation for 18 months.  He became a reportable offender under the Act as a result of this offending.
8. [8]
   The respondent was returned to custody on 8 March 2015.  He was charged with nine offences of failure to comply with reporting under the Act.  He was sentenced in the District Court on 5 February 2016 to 334 days’ imprisonment and a declaration was made that 334 days spent in presentence custody between 8 March 2015 and 4 February 2016 was time already served under the sentence.  At the same time, he was dealt with for committing an offence during the operational period of the suspended sentence imposed on 23 October 2014 and for breaching the probation order imposed on the same date.  The operational period of the suspended sentence was extended by a period of six months.
9. [9]
   By 24 June 2016 the respondent had been returned to custody as he was charged with stealing and possessing dangerous drugs on that day and also charged with two offences of failing to comply with reporting under the Act.  For the offences of failure to report under the Act, he was sentenced in the Magistrates Court on 28 July 2016 to imprisonment for six months with a parole release date fixed at 24 August 2016 and a presentence custody declaration was made for the 34 days spent in custody between 24 June and 27 July 2016.  He was given concurrent lesser sentences for the other offences.
10. [10]
    The further offending for which the respondent was sentenced on 28 July 2016 meant that the respondent had committed offences during the operational period of the suspended sentence imposed on 23 October 2014.  That was dealt with in the District Court on 13 September 2016 when a further three months of the suspended term was activated, the parole eligibility date was fixed at 25 September 2016, and a presentence custody declaration was made in respect of 19 days spent in presentence custody between 25 August and 12 September 2016.
11. [11]
    The next significant entry in the respondent’s criminal history was in the Magistrates Court on 19 January 2018 when he was sentenced to two years’ imprisonment for assault occasioning bodily harm (domestic violence offence) committed on 11 June 2017 and lesser concurrent sentences for attempted enter dwelling with intent (committed on 14 August 2017), a bail offence (committed on 23 May 2017) and four failures to comply with reporting under the Act on various dates and receiving tainted property committed between 2 February and 18 March 2017.  A presentence custody declaration was made in respect of 157 days spent in custody between 15 August 2017 and 18 January 2018.  A parole release date of 15 April 2018 was fixed.
12. [12]
    The respondent was dealt with in the Magistrates Court on 12 October 2018 for five further failures to report under the Act on various dates between 17 April and 17 August 2018 for which he was sentenced to 12 months’ imprisonment ordered to be served concurrently and for which he was given a parole eligibility date of 16 December 2018.
13. [13]
    The sentencing proceeded on the basis of the prosecutor’s submission that the respondent was on parole or serving sentences for a significant period close to the date of the subject offending and the respondent’s counsel’s submission that also stated accurately that the respondent was not on any sentences or orders at the date of the offending.

The sentencing remarks

14. [14]
    The sentencing judge’s remarks included the following.  The respondent was a danger to children.  He had a relevant criminal history.  If he had complied with the reporting conditions under the Act, it was unlikely that the offences against the complainant would have happened.  The offending had “a big impact” on the complainant whom the sentencing judge described as “a scared little girl” who did not want to be away from her mother.  While the offending against the complainant may not have been planned, it was very deliberate, because the respondent rode around a couple of times before enticing the complainant away from her friends.
15. [15]
    The public needed to be protected and for that reason a serious violent offence declaration would be made.  The starting point was 10 years for count 1 which was inflated “a little” to reflect the other offences and then reduced to reflect the plea of guilty (which meant the complainant did not give evidence) and an allowance for the time that the respondent had spent in custody during COVID-19.

The submissions on the appeal

16. [16]
    The essence of the appellant’s submissions is that imprisonment for seven years with a serious violent offence declaration did not reflect appropriately the relevant sentencing principles, was manifestly too low, and did not take account of all the circumstances of the taking of the child, the digital penetration and the other offences.  The appellant relies on the relevant sentencing principles set out in R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80 at [67]-[69] and [73] and that Free is a comparable case that supports the submission that a more significant penalty should have applied to the respondent.
17. [17]
    Apart from Free, the appellant relies on cases considered in Free of R v Stoian [2012] QCA 41 and R v D [2003] QCA 88 as justifying a higher starting point for the respondent’s sentence than the 10 years selected by the sentencing judge and submits that would then have resulted in the reduction of the head sentence to imprisonment for 10 years to reflect the mitigating factors.
18. [18]
    The respondent relies on the settled approach to an appeal against sentence by the Attorney-General on the ground of manifest inadequacy that the appeal may only be allowed if there was some misapplication of principle: Hili v The Queen (2010) 242 CLR 520 at [59]. As was stated in Hili at [59] and applied in R v Green; Ex parte Attorney-General (Qld) [2021] QCA 153 by Sofronoff P (with whom Morrison JA and Flanagan J agreed) at [5], when manifest inadequacy is the ground, it is not enough to show only that the result arrived at below is markedly different from other sentences.  Mr Copley of King’s Counsel who appears with Mr M J Jackson of counsel concedes that a higher head sentence of imprisonment for eight years, or even eight and one-half years, may have been imposed by another judge, but that did not make the sentence that was imposed manifestly inadequate.
19. [19]
    The respondent’s submissions included the following.  There were aspects of Free that were more serious than the respondent’s offending.  These were longer premeditation before taking the child away for a period which lasted 83 minutes and taking the child a great distance from where she had been located.  The observations made in Free at [73] had to be read in the context of the circumstances of that case.  The sentence imposed on the respondent was supported by R v Choomwantha [2014] QCA 115 which was a more serious case than the respondent’s offending.  The offending in Stoian was also more serious than the respondent’s offending.

Was the sentence manifestly inadequate?

20. [20]
    The sentencing judge followed the approach in R v Nagy [2004] 1 Qd R 63 at [39] of fixing a sentence for the most serious offence for which the respondent was being sentenced (count 1) which was higher than that which would have been fixed had it stood alone but which took account of his overall criminality for all the offending for which he was being sentenced.  There was no challenge to this approach nor to the sentencing judge’s taking account as a mitigating factor that the respondent’s lengthy presentence custody had been served when restrictions applied within the prison due to the COVID-19 pandemic.
21. [21]
    The most recent comparable authority where there was some similarity in the offending is that of Free.  The offender in Free took a seven year old girl from a shopping centre where she was shopping with her mother.  He had followed her for about 20 minutes before luring her away.  He drove her 28 kilometres to a secluded area of bushland about 30 minutes away and kept her for an hour and 23 minutes before returning her to the shopping centre.  The offender remained fully clothed throughout.  The child was unable to say what happened.  The offender cooperated with the police and was sentenced on the basis of his admissions that he touched and rubbed the child’s vagina on the top of her underpants, then moved her underpants to the side and rubbed on the bare skin of her vagina, and he then ejaculated.  The offender had a longstanding paedophilic ideation.  His behaviour was predatory and premeditated.  The incident had a severely traumatising impact on the child that was likely to be long lasting.
22. [22]
    Mr Free who was 26 years old when he offended and had a relatively minor criminal history with no prior convictions for sex offences was sentenced at first instance to imprisonment for eight years with eligibility for parole after two years and eight months for the offence of taking a child under 12 years for an immoral purpose.  He was also convicted of deprivation of liberty and indecent treatment of a child under 12 and for each of those offences he was sentenced to two years’ imprisonment to be served concurrently.  The Attorney-General appealed.  There was no challenge to the head sentence which was consistent with the position at first instance where both the prosecutor and Mr Free’s counsel did not dispute the appropriate sentence was eight years.  The Attorney-General contended that the sentence was manifestly inadequate and either a serious violent offence declaration should have been made or there should have been no order for eligibility for parole before the offender had served half the period of imprisonment.  The sentence was varied on the appeal by removing the order specifying eligibility for parole after two years and eight months had been served.
23. [23]
    The Court (Philippides JA and Bowskill and Callaghan JJ) in Free stated at [73]:

“In the circumstances of this case:

• where the offender admits to the overwhelming effect of psychological triggers for the offending [referring to dark urges taking over, even though he consciously knew it was wrong], in the context of a long standing paedophilic ideation;
• where the behaviour was predatory and premeditated (at the least, involving the respondent following the child for about 20 minutes before luring her away);
• involved taking a seven year old child from a public shopping centre, where she was entitled to feel and be safe, in the company of her mother; and then driving her some 28 km away to a secluded, isolated place where he knew he would not be observed;
• before sexually abusing her, in a serious way, albeit short of rape; keeping the child for almost an hour and a half before returning her; and
• resulting in significant trauma to the child, both in the immediate and longterm,

in our view an appropriate penalty, before taking account of mitigating factors such as a plea, cooperation and prospects of rehabilitation could not be less than 10 years’ imprisonment.  Only such a penalty could reflect the serious nature of the offending, the significant effect of the offending on the child, the need to protect the community from predatory offending of this kind, the need for strong denunciation of the conduct and the need to deter similar behaviour by others.  Such a sentence also bears rational relativity to the maximum penalty.  Where the sexual offending that occurs, in relation to a child who is taken, is more serious (such as involving rape), that offence will carry a higher maximum penalty (life imprisonment), and could see the offending penalised by a much higher sentence.  Other aggravating factors, such as prior history of like offending, would likewise increase the appropriate penalty.” (footnote omitted)

24. [24]
    The Court in Free at [74] treated R v D as a more serious case than the offending in Free but expressed the view that it supported a higher starting point for the offender in Free than imprisonment for eight years.  The offender in R v D pleaded guilty to one count of deprivation of liberty and one count of rape.  The maximum sentence for the offence of deprivation of liberty under s 355 of the Code was imprisonment for three years.  The offender was about 40 years old at the date of the offending and had a lengthy criminal history which included offences of dishonesty and violence but no prior convictions for sexual offences.  The offending was committed after the definition of rape in s 349 of the Code was amended so that digital penetration of a child fell within the offence of rape rather than the offence of indecent treatment of a child under 16.  R v D was an early application of sentencing for digital penetration constituting the offence of rape.
25. [25]
    The complainant in R v D was a five year old child who was playing in the front yard of her home and went missing when her mother’s attention was distracted.  The mother found her child inside the offender’s house.  His property adjoined the complainant’s family’s property.  The offender was leaning over the complainant who was naked and touching her vaginal area while holding down her legs.  There were injuries to the child’s vaginal area that were consistent with digital penetration.  The child had not responded to her mother’s calling her because of threats made by the offender that he would punch her.  The offender was diagnosed as suffering from antisocial personality disorder and substance abuse.  The sentence imposed at first instance of 12 years’ imprisonment for the rape was reduced on the appeal to a sentence of 10 years’ imprisonment.  The concurrent sentence of three years’ imprisonment for the offence of deprivation of liberty was not disturbed.  Even though the offender had not been charged with the offence of taking a child for immoral purposes, the seriousness of the rape was aggravated by the offender’s removal of the child from the yard of her home to his house.
26. [26]
    Stoian was also acknowledged in Free (at [78]) as a more serious case of sexual offending than that committed by Mr Free and also due to Mr Stoian’s criminal history, his complete lack of remorse, and the sentence being imposed after trial.  Mr Stoian had been convicted in his first trial of taking a child under 12 years for immoral purposes and rape.  He successfully appealed those convictions and a verdict of acquittal was entered in respect of the offence of taking a child under 12 years for immoral purposes.  A retrial was ordered on the rape charge which resulted in his conviction.  He unsuccessfully appealed against the conviction.  He was also unsuccessful in his application for leave to appeal against the sentence of 12 years’ imprisonment.  The offender was a stranger to the nine year old child who had returned to a shop with her father’s permission for a straw.  The child encountered the offender in the shop and she followed him to his nearby hotel room.  The offender threatened her there with a knife and made her suck his penis.  She managed to escape which the offender did not prevent.  CCTV footage showed the offender leaving the hotel three minutes and 26 seconds after his arrival with the complainant.  The offending caused long lasting trauma to the complainant and her father.  The offender was 50 years old when he committed the offence and had a history of paranoid schizophrenia.  At the time of the offence he was infectious with Hepatitis B.  Although the offender was acquitted of the offence of taking a child under 12 years for immoral purposes, it was an aggravating aspect of the rape that he took the complainant to his room purposefully to offend indecently against her.  Even though the members of the Court (McMurdo P, White JA and Douglas J) considered (at [4], [106] and [109]) that the sentence of 12 years’ imprisonment was a high one, it was not so high as to be manifestly excessive.
27. [27]
    The sentence imposed in Choomwantha was imposed on the 46 year old offender after a 10 day trial.  He was sentenced to 10 years’ imprisonment for rape and a concurrent term of five years’ imprisonment for the abduction of the five year old complainant.  The offender had no prior criminal history. He attended a birthday party at the complainant’s family’s home.  Between 9.00 pm and 10.00 pm, the offender took the complainant from the yard of her family home to behind a car parked on the side of the road opposite a neighbour’s house.  He told the complainant to lie down and penetrated her vagina with his finger which caused her pain.  She could hear her name being called but the offender at first would not let her go.  He eventually released her and she ran off.  She was bleeding between the legs.  She suffered a five to seven millimetre laceration to her labia majora, bruising to her hymen and a tear of her posterior fourchette.  It was found that the offender created the opportunity to commit the offences by engaging with the complainant and taking her away to fulfil his purpose.  Muir JA (with whom Gotterson JA and Jackson J agreed) analysed sentences imposed in R v Lee [2012] QCA 313, R v RAH [2011] QCA 35 and R v AAD [2008] QCA 4 (and the cases analysed in AAD) for digital rapes of children, in addition to R v D and Stoian.  It was noted (at [21]) that there was a marked difference in degree between the offender’s abduction of the child who was taken only a few metres from the yard into a location that was only partly obscured from view and the abductions in R v D and Stoian and those cases were also distinguishable by the threat of violence in R v D and the use of a knife in Stoian.  The sentence of 10 years’ imprisonment for the rape and the serious violent offence declaration were set aside and a sentence of eight years’ imprisonment (without a serious violent offence declaration) was imposed for the rape.
28. [28]
    The offence of rape covers a wide variety of circumstances.  Where an offender is sentenced for the rape of a child under the age of 12 years based on digital penetration of the vagina with limited additional violence, the sentence is at the lower end of the possible sentences for the offence of rape.  That is illustrated by the sentences analysed in Choomwantha that were imposed after resentencing on appeal.  In AAD, the 30 year old offender inserted his finger in the six year old daughter of his partner which was an abuse of trust.  The offender pleaded guilty. He had a prior criminal history including convictions for indecent assault and rape.  He was sentenced on the appeal to four years’ imprisonment.  One of the comparable authorities referred to in AAD was R v NH [2006] QCA 476 where on appeal a 51 year old offender with no prior convictions was sentenced to imprisonment for two and one-half years’ imprisonment after trial for the rape of an eight year old child constituted by digital penetration of her vagina.  In Green, there was no resentencing on appeal, as the Attorney-General’s appeal was unsuccessful but the sentence imposed for each of four counts of rape constituted by the offender’s inserting his finger into the complainant’s vagina was imprisonment for four and one-half years which was ordered to be suspended after the offender had served 13 months for an operational period of five years.  There was an unsuccessful sentence leave application in a more recent authority of R v Kelly [2021] QCA 134.  The offender was convicted after trial by judge alone of one count of rape constituted by using his finger to rub inside the complainant’s vagina.  The offender was 67 years old at the date of the offending with no prior criminal history.  He and his wife assisted the complainant’s mother by looking after the mother’s children whilst she was at work.  He was sentenced to imprisonment for three years.
29. [29]
    It did not reflect well on the respondent that he continually failed to comply with his reporting obligations under the Act even after he was convicted on four separate occasions of offences for these failures before he committed the subject offences.  The immediate effect of those failures for which he was sentenced by the sentencing judge was that the police were delayed by a week in locating the respondent after he was identified from the photograph taken from the CCTV footage in the caravan park.
30. [30]
    Although the offence of rape has a greater maximum penalty than the offence of taking a child for immoral purposes, it is count 1 in the circumstances of the respondent’s offending that was the most serious offence committed by him.  In considering whether the sentence imposed on the respondent is manifestly inadequate, it is the whole sentence that must be considered and not merely the head sentence.  As the respondent’s sexual offending involved actual digital penetration of the complainant, the respondent had prior convictions for sexual offences against children and he was in breach of his reporting obligations under the Act, the respondent’s sexual offending was more serious than that committed by the offender in Free.  As submitted on behalf of the respondent, however, there were other aspects of Mr Free’s offending that were not present in the respondent’s case, including that Mr Free watched the child for 20 minutes before taking her away to a remote location some distance from the shopping centre for a period of 83 minutes.  There was therefore not the significant disparity in the respective sexual offending of the offender in Free and the respondent urged by the appellant on this appeal.
31. [31]
    The appellant focussed on the general observations made by way of obiter dicta in the last two sentences in [73] of Free to the effect that sexual offending involving rape may see a higher sentence for the offence of taking a child under 12 for immoral purposes.  Those observations must be considered in the context, as explained above, that the offence of rape covers a wide variety of circumstances.  In addition, in any particular case, all the relevant circumstances both aggravating and mitigating must be considered by a sentencing judge in undertaking the instinctive synthesis required to determine the appropriate sentence.  Accepting that the circumstances of the respondent’s sexual offending were more serious than those in Free, although not significantly more serious than in Free, the sentence imposed on the respondent is not markedly different from the sentence imposed in Free, when the serious violent offence declaration is taken into account, and not inconsistent with the sentences imposed in R v D, Stoian and Choomwantha after taking into account the differences between the respondent’s offending and circumstances and those which applied in those comparable authorities.
32. [32]
    The appellant has failed to show that the sentence of seven years’ imprisonment for count 1 with a serious violent offence declaration was so markedly different from sentences imposed in similar cases to permit the conclusion that there must have been a misapplication of principle.

Order

33. [33]
    The order which should be made is: Appeal dismissed.