R v PBR[2025] QCA 120

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with North J.
2. [2]
   BRADLEY JA:  I agree with North J.
3. [3]
   NORTH J:  On 18 November 2024 the applicant pleaded guilty to seven counts of indecent treatment of a child under 16 years (in six of the offences the complainant was an infant under 12) and in each of the counts there were further circumstances of aggravation (in each case the applicant was a guardian of the child and the offence was a Domestic Violence Offence).  He was sentenced to various terms of imprisonment.  He seeks leave to appeal against the sentences imposed on the grounds:

3. “1.
   The learned sentencing judge erred in failing to give reasons for the imposition of a cumulative period of imprisonment.

3. 2.
   The sentence imposed by the Court was manifestly excessive in all the circumstances.”

4. [4]
   The agreed Statement of Facts contained the following table summarising the indictment:

“

^[1]”

The circumstances of offending and sentences imposed

5. [5]
   The applicant was aged 46 to 51 years at the time of the offending.  The complainants were foster children under the care of the applicant and his wife aged:

3. (a)
   Complainant 1   6 to 10 years at the time of the offending (DOB: 26.05.2008);

3. (b)
   Complainant 2   7 to 11 years at the time of the offending (DOB: 16.05.2007);

3. (c)
   Complainant 3   9 to 13 years at the time of the offending (DOB: 03.07.2005).

6. [6]
   The offending involved:

Count 1

The first complainant was at home in the rumpus room.  The applicant told others to leave the room and he then pulled down his pants exposing his penis.  He told the first complainant to touch his penis, she complied.  The applicant told her to tell her siblings nothing about what had occurred and he then left the room.  The first complainant was between 6 and 10 years of age at the time.  The sentence imposed was 12 months imprisonment.

Count 2

On a night between 1 January 2015 and 31 December 2017 the first complainant was asleep.  The applicant entered the room and woke the first complainant.  He pulled down his pants exposing his penis and told the first complainant to touch it.  She complied and touched his penis.  She was 6 to 9 years at the time but thought she was 7 to 8 years old.  The sentence imposed was three years imprisonment.

Count 3

On the same occasion as Count 2 the applicant told the first complainant to pull down her pants and she complied.  The applicant touched her on the outside of her vagina with an open hand.  He asked her if it felt good and told her she could do it herself.  The first complainant was between 6 and 9 years at the time and she thought she was between 7 and 8 years old.  The sentence imposed was three years imprisonment.

Count 4

On an occasion when the second complainant was about 8, 9 or 10 years of age he was asleep in his bed at night.  The applicant pulled the second complainant’s pants down to his knees.  The second complainant awoke to the sensation of the applicant “pinching” his penis.  He described it as a “biting” feeling.  The feeling caused the second complainant to kick out as a reaction.  The “pinching” continued and each time the second complainant reacted to it.  The applicant “pinched” the second complainant’s penis again harder.  The second complainant could not see what the applicant was doing to cause the feeling to his penis.  The sentence imposed was 18 months imprisonment.

Count 5

On a date approximately a week or a month following the events of Count 4 the second complainant was asleep in his bed at night and woke to the feeling of the applicant’s “pinching” his penis.  He was able to see the applicant’s face at the time and he pretended to be asleep.  The sentence imposed was 18 months imprisonment.

Count 6

After an occasion when the grandparents visited, the first complainant was asleep in the applicant’s bed one evening.  While in the room with the applicant he pulled his pants down exposing his penis.  The applicant told the first complainant to touch his penis and she complied by touching his penis.  She continued to touch his penis for approximately five to ten minutes.  While this was occurring the applicant’s penis became erect.  The first complainant stopped and the applicant told her to go to sleep and not to tell anyone. She was aged between 6 to 10 years.  The sentence imposed was two years imprisonment.

Count 7

On a date unknown between 27 March 2013 and 31 December 2018 the third complainant was asleep in the applicant’s bed with him.  Whilst in the bed with the applicant she awoke to the applicant softly touching her on the vagina.  The third complainant was lying on her side facing away from the applicant.  She could not say if the applicant was touching her on top or underneath her clothing.  She went back to sleep.  The offence occurred whilst the third complainant was in primary school and she was between 6 and 13 years of age at the time.  The sentence imposed was 12 months imprisonment.

7. [7]
   In her reasons the learned sentencing judge summarised the offending and the circumstances observing that it was a gross “betrayal of the heavy trust” as a foster father.  Her Honour mentioned that the applicant had no criminal history and a good employment history and acknowledged the utilitarian value in the plea which spared the complainants from being cross examined.  The repetition of the conduct, time span and number of victims indicated to her Honour that the applicant’s conduct was not an aberration.  Her Honour stated that the main purpose of the sentencing focused on the protection of children generally, finding that though it was unlikely the applicant would have the opportunity to offend again against foster children he demonstrated a sustained interest in children.  In the context of the need to protect children, her Honour said it could be met “through a proportionate punishment for the crimes” committed.  Observing that a public denunciation of the conduct should be met by “serious punishment” her Honour announced the sentences ordering that, apart from the sentence for count 5, they be served concurrently.  With respect to count 5 she ordered that it be served cumulatively on the sentence imposed on count 3.  Thus the effective period of imprisonment was 4 and a half years.  A parole eligibility date was set at 16 months post sentencing, which was less than the one third.

The cumulative sentence

8. [8]
   The learned trial judge did not give elaborate reasons for the cumulative sentence.  The prospect of a cumulative structure to the sentence was raised in submissions by the prosecutor^[2] who submitted that in this case it was “appropriate…for sentences to be served cumulatively to each other to reflect the criminality of the overall offending.”  The prosecutor submitted that a sentence as high as five years could not be imposed on any one count because no individual count could sustain a sentence as high as five years.  The prosecutor went on to refer to cases said to involve comparable offending before submitting for a sentence “overall…somewhere in the vicinity of five years”.^[3]  The prospect of a cumulative sentence structure was resisted by counsel for the applicant.^[4]  She submitted that the offending was “effectively a course of conduct [having] no particular features” justifying accumulation.
9. [9]
   In Markarian v The Queen^[5] the plurality said:

“The law strongly favours transparency. Accessible reasoning is necessary in the interest of victims, of the parties, appeal courts, and the public.”

Relevant to circumstances that apply in this matter it is worthwhile recalling the comment by Margaret Wilson AJA in R v Hyatt:^[6]

“It is desirable that sentencing remarks be succinct, sharply focussed and expressed in a way likely to resonate with the offender, the victim and the public at large. They also have to be able to withstand the scrutiny of appellate courts. The reasons for structuring a sentence in a particular way should ordinarily appear in the sentencing remarks, and a sentencing court may more readily infer error when reasons are not expressed.”

10. [10]
    But her Honour had limited options available to her in structuring the sentence to be imposed upon the applicant for his criminal conduct towards the complainants.  The prosecutor had addressed this when he submitted that the “Nagy approach” could not result in a sentence as high as five years.^[7]  This was explained by Williams JA in R v Nagy:^[8]

“Where a judge is faced with the task of imposing sentences for a number of distinct, unrelated offences there are a number of options open. One of those options is to fix a sentence for the most serious (or the last in point of time) offence which is higher than that which would have been fixed had it stood alone, the higher sentence taking into account the overall criminality. But that approach should not be adopted where it would effectively mean that the offender was being doubly punished for the one act, or where there would be collateral consequences such as being required to serve a longer period in custody before being eligible for parole, or where the imposition of such a sentence would give rise to an artificial claim of disparity between co-offenders. That list is not necessarily exhaustive. Such considerations may mean that the other option of utilising cumulative sentences should be adopted.”

11. [11]
    The vice of the failure to give reasons for a cumulative sentence may be that it is not possible to identify the reasons why a court imposed the sentence^[9] in preference to other options nor what circumstance the judge took into account in imposing such a structure.
12. [12]
    In R v WBQ^[10] Boddice J (as his Honour then was) said:

“There was an obligation on the sentencing Judge to record reasons for the imposition of a cumulative period of imprisonment, rather than a concurrent period of imprisonment. The sentencing remarks provide no such reasons. The failure to do so constituted an error of law warranting appellate intervention.”

13. [13]
    The applicant submitted that the failure of the learned sentencing judge to give reasons for the cumulative sentence constituted an error of law quoting the comments by Boddice J (as his Honour then was) in WBQ.  But her Honour showed she was considering the structure of the sentence when she referred to the need for “proportionate punishment”.  The question of a cumulative order was the subject of pointed and relevant submissions before her.  The prospect of accumulation was extensively referred to in the context of the unavailability of a sentence designed in conformity with the “Nagy approach”.  The circumstances here are different from those in WBQ where the accumulation of a short sentence in the context of a suspended sentence resulted in the loss of a parole release date for reasons that were not explained.  Her Honour’s reasons were short but they addressed relevant considerations including the prospect of a “proportionate” sentence designed to serve the dual interests of protecting the vulnerable and deterrence.  The reasons of her Honour were adequate in the circumstances.

The sentence for the offending

14. [14]
    Most of the facts and circumstances relevant to the second ground can be found above.^[11]  Ms Sheppard, who appeared for the respondent, identified relevant factors which were mentioned by her Honour below.  The applicant offended on six distinct occasions over a four year period, the offending involving the applicant exposing himself, pinching or touching the genitals of the child or having them touch him, there were three separate complainants two of whom were prepubescent at the time of offending and the most serious offending was against the younger complainants.  All complainants were vulnerable because they had been removed from their mother’s care and the offending involved betrayal of trust by a foster father.  Ms Sheppard acknowledged that there was utilitarian value in the applicant’s pleas of guilty and she described the pleas as timely against a strong prosecution case.  She acknowledged that the applicant had a good employment history and no criminal history and that as a result of his conviction and sentence he would not be able to continue to financially support his family.
15. [15]
    In support of the submission made concerning ground 2 (manifest excess) both counsel referred to decisions of this Court.  The object was to persuade the Court that the sentence was either manifestly excessive or, on the other hand, within a sound discretionary range.  For example Mrs Grant, counsel for the applicant, provided us with R v NH [2006] QCA 476 and R v Watson [2017] QCA 82 whilst Ms Sheppard (for the respondent) placed R v AAR [2014] QCA 20 and R v SBM [2009] QCA 115 before us.  None of these judgements are truly comparable.  The offending in R v NH and R v Watson was significantly less serious than the offending here while the offending in R v SBM and R v AAR was significantly more serious.  Further many of the judgments are dated.  In R v O'Sullivan and Lee; Ex parte Attorney-General (Qld)^[12] the Court said:

3. “[93]
   This sequence of legislative changes since 1997 puts it beyond question that the legislature has made a judgment about the community’s attitude towards violent offences committed against children in domestic settings. The amendments constitute legislative instructions to judges to give greater weight than previously given to the aggravating effect upon a sentence that an offence was one that involved infliction of violence on a child and that the offender committed the offence within the home environment.

3. [94]
   The significance of these legislative events has to be taken into account when sentencing. There must be consistency of sentencing but consistency is constituted by the consistent application of principles and not by adherence to a previously established range of penalties in disregard of the applicable law. The sentences imposed in earlier cases are useful only insofar as they can be used to identify the unifying principles that should be applied. When applicable legislation changes, the laws as changed must be applied faithfully and a previous range of sentencing may no longer be useful.” (footnotes omitted)

16. [16]
    The tide of legislative amendment and innovation has not abated.^[13]  In argument both counsel acknowledged that neither could find a truly comparable case.
17. [17]
    The seriousness of the offending is manifest.  It involved a gross breach of trust, and repetition of conduct suggestive of planning rather than impulse.  The complainants were young children incapable of protecting themselves.  While the applicant’s plea spared the complainants the ordeal of giving evidence under cross examination the facts and circumstances do not suggest remorse on his part.  The effect of what her Honour has done is to cumulate a sentence imposed for offending against complainant 2 upon a sentence concerning offending against the youngest child against whom most of the offending was committed.  Her Honour moderated the sentence structure by fixing a parole eligibility date at 16 months (less than one third) indicating that she was mindful of totality considerations.  The effective sentence of four and a half years is high and a lesser sentence might have been imposed but the cumulative sentence is commensurate with the gravity of the whole of the criminal conduct.^[14]  The sentence imposed was not manifestly excessive when regard is had to all the facts and circumstances.
18. [18]
    The application should be refused.