R v HCL[2023] QCA 68

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I joined in the making of the Court’s orders on 24 March 2023 for the reasons given by Gotterson AJA.
2. [2]
   BOND JA:  For the reasons given by Gotterson AJA, I joined in the making of the Court’s orders on 24 March 2023.
3. [3]
   GOTTERSON AJA:  The Applicant pleaded guilty to nine counts of sexual offending when arraigned at the District Court at Beenleigh on 27 January 2023.  In each instance, the complainant was the Applicant’s younger sister.  At all times when the offending occurred she had been under 12 years of age.  Counts 1, 4, 6 and 8 alleged rape.^[1]  Counts 2, 3, 5, 7 and 9 contained allegations of indecent treatment of a child under 16 years of age who was under 12 years of age at the time of the offending.^[2]
4. [4]
   That day, convictions were recorded for all counts.  The Applicant was sentenced to two years imprisonment on each count of rape and 12 months imprisonment on each count of indecent treatment, with all sentences to be served concurrently.  It was ordered that the sentences be suspended after the Applicant had served five months for an operational period of two years.
5. [5]
   On 24 February 2023, the Applicant filed an application for leave to appeal to this Court against sentence.  The application was heard on 24 March 2023.  At the conclusion of the hearing, the Court made the following orders:

1. Application for leave to appeal granted.
2. Appeal allowed.
3. Set aside the sentences imposed and the orders made by the sentencing judge in the District Court at Beenleigh on 27 January 2023 and in lieu the Applicant is sentenced as follows for all counts:
   1. The Applicant is released under the supervision of an authorised Corrective Services officer for a period of two years and he must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 (Qld) and report within two business days of his release from custody to an authorised Corrective Services officer at the Inala Probation and Parole Office, 141 Boundary Road, Oxley;
   2. No convictions recorded.

6. [6]
   At that time, the Court further ordered that reasons would be published at a later date.  The following are my reasons for joining in the making of those orders.

The circumstances of the charged offending and the complaint

7. [7]
   The Applicant and the complainant lived together with their parents and other siblings in the Logan area.  The counts related to offending on four separate occasions at four separate locations at the family residence.
8. [8]
   Counts 1, 2 and 3 concerned offending in the family’s garden shed.  The Applicant pulled down his pants and the complainant performed oral sex on him (Count 1).  He grasped the complainant’s hand, placed it on his penis and began moving it backwards and forwards (Count 2).  The complainant told him she wanted to stop but he told her to continue.  She took her clothes off and spread her legs.  The Applicant put his hand on the complainant’s exposed vagina (Count 3).  He ejaculated onto his own hand or the ground.
9. [9]
   Further charged offending occurred when the Applicant and the complainant were alone in the family garage.  He pulled down his pants.  The complainant knelt down and began performing oral sex on him (Count 4).  He grabbed her hand and placed it on his penis and she began masturbating him (Count 5).
10. [10]
    Charged offending also occurred in a cubbyhouse in the back garden of the family residence.  The Applicant pulled down his pants and the complainant began performing oral sex on him (Count 6).  Again, he grabbed her hand and placed it onto his penis and she began masturbating him (Count 7).
11. [11]
    Finally, charged offending took place in the family’s backyard.  The complainant performed oral sex on the Applicant (Count 8).  She proceeded to masturbate him (Count 9).  Both acts occurred on his instigation.
12. [12]
    For the majority of the charged offending, the Applicant walked the complainant to the location, pulled down his pants and the complainant would ask: “Do you want me to do that thing?”  On several occasions, the complainant said that she did not.  However, the Applicant would entice her by giving her lollies or small amounts of money.  At times, he told her that if she refused, her family would hate her.
13. [13]
    All of the charged offending was alleged to have taken place between 19 November 2008 and 18 November 2011.  The first mentioned date was the Applicant’s 13^th birthday and the latter date was the day before his 16^th birthday.  The complainant was almost four years of age when that period began and almost seven years of age when it concluded.  The four separate occasions of offending were not alleged to have occurred in any particular sequence.
14. [14]
    The complainant reported the offending to her school chaplain when she was in Grade 5.  This was relayed to the school’s principal who, in turn, contacted the complainant’s mother and the police.
15. [15]
    The Applicant’s parents confronted him about the allegations.  He was then about 19 years of age.  He admitted having made the complainant perform oral sex on him but denied ever touching her.  He said that the oral sex occurred when he was 13 to 16 years old and that he had targeted the complainant because she was the easiest to manipulate.
16. [16]
    The complainant decided not to make a formal complaint at that point for fear of getting her older brother into trouble.  Her complaint was withdrawn.  However, in January 2022, the complainant attended the Logan Central Police Station and made a formal complaint.  The Applicant participated in a record of interview on 22 February 2022.  In light of extensive admissions then made by him, he was formally charged and released on bail.

The evidence before the learned sentencing judge and the sentencing remarks

17. [17]
    The learned sentencing judge had before him a Schedule of Facts^[3] which described the charged offending in the terms that I have set out above.  His Honour also had a Victim Impact Statement^[4] in which the complainant described the guilt, shame, anxiety, anger and hopelessness that has consumed her life as a result of the Applicant’s offending.  There was a report prepared by Ms Amanda Akers, clinical psychologist, who interviewed the Applicant on 15 October 2022^[5], a number of emails from the Applicant’s mother, grandmother, partner and partner’s grandmother^[6], and an apology sent by the Applicant to the complainant by email several days before the sentence hearing.^[7]
18. [18]
    In his sentencing remarks, his Honour referred to the circumstances of the charged offending, other information in the Schedule of Facts, and the traumatisation described in the Victim Impact Statement.  He noted to the extensive admissions and pleas of guilty, the “great” assistance provided to him by the psychologist’s report, the Applicant’s remorse, his personal circumstances and family support, and the absence of subsequent offending by him.
19. [19]
    His Honour observed that s 140(1) of the Youth Justice Act 1992 (Qld) (“YJA”) required the Applicant to be sentenced as an adult.  In having regard to s 144(3) YJA, he expressed the view that had the Applicant been sentenced as a 16 or 17 year old, detention would have been the only appropriate sentence in the circumstances and that the Applicant would have been required to serve some time in youth detention.^[8]  That provision prohibits a court when sentencing an offender as an adult, from ordering the offender to serve a term of imprisonment longer than the period of detention that the court could have imposed had the offender been sentenced as a child.
20. [20]
    His Honour also adverted to the provisions of s 9(4)(c) of the Penalties and Sentences Act 1992 (Qld) (“PSA”) which require that an offender who is sentenced for any offence of a sexual nature committed in relation to a child under 16 years must serve an actual term of imprisonment unless there are exceptional circumstances.  He said that he was not satisfied that there were such circumstances in the Applicant’s case.^[9]
21. [21]
    In the absence of being so satisfied, the learned sentencing judge acknowledged that he was required to sentence the Applicant to actual imprisonment.  He stated, however, that for all the factors in the Applicant’s favour, he would reduce the time to be served to the bare minimum that he considered appropriate.^[10]

The grounds of appeal

22. [22]
    The application for leave to appeal^[11] sets out one ground of appeal, namely that the Applicant’s sentence is manifestly excessive.  At the hearing of the application, leave was granted to amend it by adding an additional ground which proposes specific error on the part of the learned sentencing judge, namely, that he had sentenced the Applicant for uncharged acts.
23. [23]
    It is convenient to consider the additional ground first.

The specific error ground of appeal

24. [24]
    The Schedule of Facts detailed the extensive admissions made by the Applicant at the interview at the Logan Central Police Station in February 2022.  They included an admission that the complainant had performed oral sex on him 20 to 30 times; that using the complainant’s hand to masturbate “Was a common thing”; and that the offending occurred “Over the span of a few years”.^[12]
25. [25]
    The Applicant relies on that detail and references to it in the sentencing remarks to contend that the learned sentencing judge sentenced him for uncharged acts as well as for the acts for which he had been charged by the nine counts.  I have perused the transcripts of the sentence hearing and of the sentencing remarks in order to assess this contention.
26. [26]
    I note that during submissions on sentence, the prosecutor particularised the counts.  He then referred to the extensive admissions and commented that the Applicant “stated the complainant had performed oral sex on him 20 to 30 times and that he touched her a couple of occasions”.^[13]  The prosecutor also implied that the Applicant had offended repetitively with remarks that the offending was “protracted over a three year period” and was “predatory in nature”, and that he had coerced “her continued involvement”.^[14]
27. [27]
    The learned sentencing judge referred to the abovementioned comment in his sentencing remarks.^[15]  During the course of remarks which followed, his Honour stated that the Applicant had abused his sister “on multiple occasions”.^[16]  He spoke of “the persistent nature of the offending and the regularity of it over a three-year period”.^[17]  He used the term “persistent nature of the offending” for a second time^[18] before speaking of the “sheer number of offences” for which the Applicant was to be sentenced.^[19]
28. [28]
    I am unable to accept, as the Crown submits, that those aspects of the remarks appropriately described the offending on the four occasions only.  To my mind, by referring to multiplicity, persistence, regularity and sheer number, they give rise to a strong inference that the learned sentencing judge did sentence the Applicant as if all of the admitted acts were the charged acts.  However, the charged acts were limited to nine acts on four separate occasions at four separate locations.  It follows that his Honour does appear to have sentenced the Applicant for unspecified uncharged acts.
29. [29]
    Accordingly, I would uphold this ground of appeal.  I might add that this unfortunate sequence of events arose from the inclusion of evidence in the Schedule of Facts of uncharged offending by the Applicant on which the prosecutor and, in turn, the learned sentencing judge relied.  The inclusion of such evidence is an example of the intrinsic unfairness that it can cause which this Court deprecated in R v D.^[20]

Disposition of application for leave and of appeal

30. [30]
    Given the prospects of success of the specific error ground of appeal, I would grant leave to appeal.  Further, I would allow the appeal against sentence on that ground.  It is therefore unnecessary to consider the manifest excess ground of appeal.  However, consistently with the decision of the High Court in Kentwell v The Queen,^[21] it does fall to this Court exercise the sentencing discretion afresh.  For the following reasons, I conclude that a lesser sentence should be imposed and that the Applicant should be re-sentenced accordingly.

Re-sentence

31. [31]
    I have set out the circumstances of the charged offending.  The report of Ms Akers reveals that the Applicant’s childhood was disrupted by a bowel condition that lasted until he was 12 years old and resulted in frequent toileting accidents.  That led to his being bullied at school, including being assaulted in Year 7.  His mother attempted to home-school him without success.  He rebelled and often ran away from home during his teenage years.
32. [32]
    It appears that the Applicant was exposed to pornographic material at another boy’s house when he was eight years old.  In Ms Akers’ view, his sexualised conduct towards his sister was likely to have been based on what he had seen then.
33. [33]
    Ms Akers expressed the opinion that at the age at which he sexually abused his younger sister, the Applicant was unlikely to have understood “the concept of sex” or the effect that early childhood sexual abuse would have on her.^[22]  The Applicant had told her that by the time he was 16 years old, he realised that his actions could affect his sister for a significantly long period of time.
34. [34]
    Whilst such a lack of understanding might be more readily associated with a boy in his early teenage years rather than mid-teenage years, it must be recalled that, here, none of the counts was alleged to have occurred on a specific date and when the Applicant was an ascertained age within the three year period from his 13^th birthday.  In that circumstance, this Court ought to re-sentence on the basis that the charged offending occurred in the Applicant’s early teenage years, rather than in his mid-teenage years.
35. [35]
    Apparently, the Applicant’s remorse for what he had done increased as his awareness of its dreadful adverse effects on his sister enlivened.  This was evidenced by the admissions made to his parents as a 19 year old and then his extensive admissions made to police and apology some seven years later, culminating in the pleas of guilty.  The latter relieved the Crown of having to prove capacity to know that he ought not to have done the charged acts insofar as they may have occurred before the Applicant attained 14 years of age.^[23]
36. [36]
    Apart from the subject offending, the Applicant has no criminal history.  The prospect of his re-offending in a similar manner is negligible.  His marked rehabilitation ought to be reflected in mitigation of his sentence.^[24]
37. [37]
    The Applicant has worked as a painter since 2015.  He recently established his own business.  He is the father to two young daughters and has been in a stable, happy relationship for more than five years.  He benefits from the support of his immediate and extended families.
38. [38]
    It is relevant for present purposes to consider what sentence would have been imposed on the Applicant had he been sentenced as a child.  In this respect, I have gained considerable assistance from the decision of this Court in R v LAL.^[25]  In that case, a 32 year old male was sentenced for offending when he was 15 years and seven months old.  The complainant was about six years younger and the sister of his friend.  He was charged on two counts of indecent treatment, the first involved touching the complainant’s vagina with his finger and the second with his tongue.  He was sentenced to four months imprisonment on the first count and nine months imprisonment on the second count, to be served concurrently and wholly suspended for an operational period of nine months.  The sentences carried recorded convictions.
39. [39]
    On appeal, the sentences were set aside and in lieu therefore the offender was released on his entry into a recognisance in the sum of $500.00 on the condition that he be of good behaviour for an operational period of two months.  No convictions were recorded.
40. [40]
    Ryan J, with whom Sofronoff P and Crow J agreed, noted the guidance derived from the decision of this Court in R v PGW.^[26]  Her Honour then listed matters that were relevant to exercise of the sentencing discretion and then discussed them.^[27]
41. [41]
    Significantly, in Attachment A to her reasons, Ryan J collated sentences at first instance for similar (or more serious) offending from 2004 onwards.  Drawing upon them, her Honour observed:

“They demonstrate that the sentence the applicant was likely to receive, had he been sentenced as a child from 2004 onwards, was one designed to encourage his rehabilitation, by way of probation, providing him with support, guidance and specialised psychological treatment, and by not recording convictions…

The imposition of such a sentence is consistent with the application of the relevant principles of juvenile justice and sentencing, and the primary position under the … YJA that a conviction is not imposed for juvenile offending.”^[28]

42. [42]
    Illustrative of this observation are the sentences imposed in R v BDW^[29] and R v BDA.^[30]  In BDW, a 14 year old offender who was 17 years old at sentence, pleaded guilty to seven counts of indecent treatment of a seven year old female complainant.  He was sentenced to three years probation and no convictions were recorded.
43. [43]
    In BDA, a 15 year old offender pleaded guilty to two counts of rape and one count of indecent treatment of his five year old cousin.  One of the rape counts involved inserting his finger into her vagina for which the offender was sentenced to 12 months detention with three months conditional release.  The other rape count involved instructing his nine year old cousin to lick the complainant’s vagina while the indecent treatment count arose from causing the complainant to masturbate him to ejaculation.  For these counts, he was sentenced to three years probation.  No convictions were recorded.
44. [44]
    In contending for a custodial sentence in this case, the Crown relied on the decisions of this Court in R v OQ^[31] and R v AAQ.^[32]  In OQ, the offender pleaded guilty to 13 counts of indecent dealing or similar towards his younger sister who was then aged between four and seven years of age.  He also pleaded guilty to one count of rape when he was at least 14 years old.  He partially penetrated the complainant’s vagina with his erect penis.
45. [45]
    In AAQ, the offender pleaded guilty to a count of rape when he was 15 years and 10 months old of a six year old boy by penetration of the boy’s anus resulting in a 12 millimetre laceration, bleeding and pain.  He also pleaded guilty to three counts of indecent dealing involving the boy’s sister when she was aged between five and seven years of age.
46. [46]
    In both cases, sentences of detention were undisturbed by this Court.  However, in my view, they concerned significantly more serious offending than that of the Applicant in that they involved penile penetration of the vagina in the one instance and severe penile penetration of the anus in the other.  Also, in AAQ, there were two complainants.  For that reason, they do not provide reliable guidance on the sentence that would have been imposed on the Applicant had he been sentenced as a child.  The same may be said of the sentence in BDA on the rape count involving penetration of the complainant’s vagina.
47. [47]
    I conclude from the foregoing that had the Applicant been sentenced as a child for his offending, it is unlikely that he would have been ordered to serve a period of detention.  It is much more likely that he would have been placed on probation without the recording of convictions.
48. [48]
    I now turn to s 9(4) PSA.  On the terms in which it is enacted, this provision applies to re-sentencing by this Court.  Clearly there is no express exception in that respect nor, in my view, is there any basis for the implication of one.  There are, however, exceptional circumstances in the Applicant’s case which, in my view, dispense with the requirement that he be re-sentenced to an actual term of imprisonment.  In the first place, he has already served two months of actual imprisonment for the offending.  Secondly, for the reasons given, it is unlikely that had he been sentenced as a child, he would have been ordered to serve a period of detention.
49. [49]
    There is no reason why the Applicant should be sentenced more harshly than he would have been as a child.  He has no history of re-offending.  Furthermore, his established rehabilitation also dispenses with the need to record convictions that would result in him becoming a reportable offender.
50. [50]
    I consider that a period of probation for two years from his release from custody is appropriate in the Applicant’s case.  In selecting that period of time, I have made some allowance for the two months of imprisonment that he has already served.