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[2014] QCA 206
General information, not legal advice.
Court of Appeal (Qld)
2014-08-26
Holmes and Gotterson JJA and Philip McMurdo, J, Separate reasons for judgment of each member of the Court, each concurring, as to the orders made
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Beattie; Ex parte Attorney-General (Qld) [2014] QCA 206
PARTIES: R v BEATTIE, Garry John (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S: CA No 73 of 2014 / DC No 76 of 2014 / DC No 77 of 2014
DIVISION: Court of Appeal
PROCEEDING: Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT: District Court at Bundaberg
DELIVERED ON: 26 August 2014
DELIVERED AT: Brisbane
HEARING DATE: 24 July 2014
JUDGES: Holmes and Gotterson JJA and Philip McMurdo J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: Allow the appeal.Vary each of the sentences of 18 months imprisonment to two and a half years imprisonment, wholly suspended with an operational period of five years.Otherwise affirm the orders made on 17 March 2014.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to seven counts of indecent treatment of children under the age of 16 years – where the sentence imposed included wholly suspended sentences – whether the sentence was manifestly inadequate – whether a period of actual imprisonment should be imposed – whether the court should resentence the respondent / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the respondent pleaded guilty to seven counts of indecent treatment of children under the age of 16 years – where the respondent had been convicted and sentenced for similar offences in 1992, 2004, 2007, 2010 and 2012 – whether the totality principle applied – whether the sentencing judge erred in applying the totality principle / Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied / Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied / R v Bradfield [2012] QCA 337, cited / R v Gordon (1994) 71 A Crim R 459, applied / R v Hopper; Ex parte Attorney-General (Qld) [2014] QCA 108, distinguished / R v Hunter (2006) 14 VR 336; [2006] VSCA 129, applied / R v Koster (2012) 226 A Crim R 247; [2012] QCA 302, cited / R v KP; ex parte A-G (Qld) [2006] QCA 301, cited / R v LAE [2013] QCA 189, applied / R v Nash [2001] QCA 543, cited / R v S; ex parte Attorney-General (Qld) [2002] QCA 141, cited / R v SAQ [2002] QCA 221, cited / R v Todd [1982] 2 NSWLR 517, applied / R v Wharton; ex parte A-G (Qld) [2009] QCA 396, cited
COUNSEL: M R Byrne QC for the appellant / J J Allen for the respondent
SOLICITORS: Director of Public Prosecutions (Queensland) for the appellant / Legal Aid Queensland for the respondent
HOLMES JA: I have had the benefit of reading the draft reasons for judgment of Philip McMurdo J and agree, for the reasons that he has given, that the sentencing judge erred and that this court should now re-sentence the respondent.
Particularly because of the respondent’s long history of similar offending, a longer sentence of imprisonment than that imposed at first instance is warranted; the two and half years imprisonment Philip McMurdo J proposes is appropriate. However, having regard to the considerations his Honour identifies, I concur that each term should be wholly suspended, with an operational period of five years.
The orders should be those which Philip McMurdo J proposes.
GOTTERSON JA: I agree with the orders proposed by Philip McMurdo J and with the reasons given by his Honour.
PHILIP McMURDO J: The Attorney-General appeals against wholly suspended terms of imprisonment imposed upon the respondent in the District Court in April this year.
It is submitted for the Attorney that there was a demonstrable error by the sentencing judge in saying that the case was governed by the totality principle. It is also submitted that the sentences were manifestly inadequate.
The subject offences were committed in 1996 and 2001. Upon one indictment, there were four counts charging the respondent with indecently dealing with a certain complainant who was a child under the age of 16 years, at some time in 1996. There was a second indictment charging the respondent with three counts of indecently dealing with a certain complainant who was a child under 16 years, during the month of April 2001. The respondent pleaded guilty to each of the seven counts.
For one offence from each indictment, the respondent was sentenced to a term of 18 months imprisonment, wholly suspended, with an operational period of five years. On each of the other charges, a probation order for three years was imposed and a conviction was recorded. Conditions were imposed which would require the respondent to submit to medical, psychiatric or psychological treatment and to participate in sexual offenders treatment programs and counselling as directed by a corrective services officer.
The complainant for the four offences committed in 1996 was a 13 year old boy who was a friend of the respondent’s son. On one occasion the respondent fondled the boy’s penis for about five minutes whilst he was a guest in the respondent’s home. There was another offence that occurred at the respondent’s workplace at night. The respondent was there with his son and the complainant. Whilst his son was temporarily absent, the respondent masturbated the complainant for about 10 minutes. The third offence occurred at the respondent’s house where the complainant woke to find the respondent touching him on the groin on the outside of his shorts. The fourth count then occurred when the respondent pulled the boy’s shorts down fellated him whilst massaging his testicles. This lasted for about 10 to 15 minutes.
“Totality is very relevant here. Totality is a legal principle recognised by the High Court, which comes into play when a Court is sentencing an offender for offences of a like nature which occurred at or about the same time as offending for which you’ve been previously sentence. It comes into play here in considering, in a hypothetical way, what his Honour Judge Samios would have done in either 2007 or 2010 if he’d been aware of the offending to which you’ve now pleaded guilty. I agree with [the respondent’s counsel] that it is relevant that you serve[d] the whole of the 18 month sentence imposed in 2010, but it is also clear that his Honour may not have been fully aware of the extent of your previous offending, and he was merciful in ordering that the wholly suspended sentence be activated and served concurrently.”
“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”
The ambit of the totality principle has been extended in at least two ways. The first, which is illustrated by Mill v The Queen, is where an offender commits a number of offences within a short space of time but in more than one State. Upon being sentenced to a term of imprisonment in one State, the offender cannot be sentenced in the other State until he is released from custody under the first sentence. In such a case, it is necessary for the second sentencing judge to consider in aggregate the sentences and if necessary to moderate the sentence then to be imposed.3 The principle has also been extended in the sentencing of an offender who is then serving an existing sentence. In such a case, “the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable”.4
The present case presented none of the circumstances in which the totality principle, in its original or extended senses, has been applied. The four offences which were committed in 1996 occurred years prior to the offending for which the respondent was sentenced in 2007. Each of the seven offences here was committed years prior to the offending for which he was sentenced in 2010. And the respondent was not in custody when the subject sentences were imposed.
It was relevant that the respondent had been in custody for 18 months until late 2011 and that he had not offended subsequently. However, the sentencing judge erred in characterising the facts as involving “offences of a like nature which occurred at or about the same time as offending for which you’ve been previously sentenced”. The sentencing judge reasoned that he should ask what sentence or sentences would have been imposed, either in 2007 or 2010, if the subject offences had been also before that court. In my respectful opinion, this was an error of principle which affected the outcome. Subject to the issue next to be considered. It is therefore necessary to set aside the orders which were made and for this court to resentence the respondent.
The respondent argued that if a ground of appeal was made out, then the following circumstances warranted the dismissal of the appeal in the exercise of the court’s residual discretion: the contribution by the prosecution to the sentencing judge’s error about the totality principle, the respondent’s performance of the probation order since the sentence, the uncertainty suffered by the respondent during the course of this appeal and the length of the operational period.
The respondent’s submission cited R v Hopper; Ex parte Attorney-General (Qld) [2014] QCA 108. An Attorney-General’s appeal was there dismissed where the respondent had been sentenced to two and a half years imprisonment, wholly suspended for three years, for dangerous driving causing death and grievous bodily harm. That offender was 17 years old at the time of the offence and 19 when sentenced. Without objection, the court received evidence on the appeal as to her creditable conduct between the sentence hearing and the appeal hearing. It was noted that if the respondent had been given an appropriate custodial sentence, she might have served it in full and been released by the time the appeal was heard. Fraser JA said that:
“[T]he desirability of correcting the sentence on appeal by imposing a relatively short period of actual custody does not justify the resulting interruption of the rehabilitation and reintegration into society upon which this youthful and psychologically vulnerable respondent has substantially embarked”
so that it was “an appropriate case in which to exercise the residual discretion to decline to intervene”.6
In the present case, there is a report from a psychologist, Mr Emslie, who has treated the respondent over several counselling sessions since April. His report describes the respondent as showing empathy for his victims and making progress towards rehabilitation. At the request of the court, the probation officers also reported on the respondent’s progress. They say that he appears to be complying with all reasonable directions, reports as directed and has engaged well in their interview process. They describe the respondent as having positive supports in his family and say that his level of disclosure “around his precautions and sexual behaviours is deemed as acceptable and positive”.
The present case does not have some of the important features of Hopper, in particular the youth and psychological vulnerability of that offender as well as the fact that she had never been to prison. As I will discuss, the performance by the respondent since April is relevant to the orders which should now be made. But that circumstance, taken together with the others to which the respondent’s counsel refers, does not warrant the exercise of a residual discretion to decline to intervene in the present case. It is therefore necessary to resentence the respondent.
For the 1996 offences, the maximum penalty in each case was 10 years imprisonment. For the 2001 offences, the maximum penalty was 14 years imprisonment. The respondent was aged 52 years at the time of sentence. The sentencing judge referred to what had been said by the Victorian County Court judge in 2012, which was that the respondent had developed insight as a result of the respondent’s participation in the program. The sentencing judge here was “a little more cynical about that” and remarked that without some supervision, the respondent was still a risk of reoffending.
His Honour accepted that the respondent had “important support systems” from his family. There was evidence from the respondent’s wife and daughter as to the positive effects of his completion of the program. The respondent was in employment.
The sentencing judge referred to the substantial impact upon the complainant, evidenced by the victim impact statements, which he said were “tragically typical of this type of offending”.
The court was referred to several cases which were said to be comparable but all of which had some distinguishing features.7
Whilst the totality principle does not apply, the relatively recent term of 18 months served by the respondent is nevertheless relevant. Because of that matter, it is difficult to say that some further custodial term would provide any significant benefit of rehabilitation. Nor would it serve any purpose of personal deterrence. Of course the subject offences were quite distinct from those for which the respondent has already been punished and there must be some adequate punishment for and denunciation of these offences. In my view however, that could be imposed by increasing the two sentences of 18 months imprisonment, although fully suspending those sentences. The element of general deterrence would not be compromised with the imposition of a substantially higher head sentence.
Orders
I would make the following orders:
Allow the appeal.
Vary each of the sentences of 18 months imprisonment to two and a half years imprisonment, wholly suspended with an operational period of five years.
Otherwise affirm the orders made on 17 March 2014.
(1988) 166 CLR 59. ↩
Mill v The Queen (1988) 166 CLR 59 at 63. ↩
Mill v The Queen (1988) 166 CLR 59 at 63-64; R v Todd [1982] 2 NSWLR 517 at 519-520. ↩
R v Gordon (1994) 71 A Crim R 459 at 466 per Hunt CJ at CL; Postiglione v The Queen (1997) 189 CLR 295 at 308; R v Hunter (2006) 14 VR 336 at [30]; see also R v LAE [2013] QCA 189 at [35]-[37]. ↩
R v Hopper; ex parte Attorney-General (Qld) [2014] QCA 108 at [42]. ↩
Ibid. ↩
R v S; ex parte Attorney-General (Qld) [2002] QCA 141; R v SAQ [2002] QCA 221; R v Nash [2001] QCA 543; R v KP; ex parte A-G (Qld) [2006] QCA 301; R v Wharton; ex parte A-G (Qld) [2009] QCA 396; R v Koster [2012] QCA 302 and R v Bradfield [2012] QCA 337. ↩
cf R v Koster [2012] QCA 302 at [41]. ↩
R
Beattie; Ex parte Attorney-General
(1988) 166 CLR 59
(1997) 189 CLR 295
(2006) 14 VR 336
The 2001 offences involved a 12 year old boy who was in the respondent’s car when the respondent touched the boy’s penis on a number of occasions. On the same journey, the respondent stopped his car at an isolated spot and masturbated the boy. They then continued their journey to the respondent’s workplace, which was deserted at night, where the respondent again masturbated him.
The child in the 1996 offending did not make a formal complaint to police until June 2011. The child in the 2001 offending did not make a formal complaint until June 2012. The respondent did not participate in an interview but the sentencing judge accepted that his pleas of guilty were timely.
The respondent had an extensive criminal history of similar offending. In 1992 in South Australia, he was sentenced to two and a half years imprisonment for six counts of indecent assault, involving two boys aged nine and twelve. The respondent was then aged about 30 years. In 2004, he was sentenced to a term of nine months imprisonment, which was wholly suspended for two years, for similar offences committed in Victoria.
In August 2007, he was sentenced in the District Court at Bundaberg for the indecent treatment of children under 16, between January 2001 and June 2002. The sentence imposed was six months, wholly suspended with an operational period of three years.
In September 2010, after a trial in the District Court at Bundaberg, he was sentenced to a term of 18 months for the indecent treatment of children under 16 in November 2008. A period of 150 days of presentence custody was declared.
In September 2012, he was before the County Court of Victoria where he pleaded guilty to like offences for which he received a wholly suspended term of 12 months imprisonment. That offending had occurred in 1985.
In the present case, counsel for the respondent submitted to the sentencing judge that “the principles of totality that apply in this case arise with respect to the sentencing procedure after trial on 7 September 2010”, a reference to the sentence of 18 months which was then imposed. It was further submitted that “this court … has to put itself in the position of the sentencing court on that date”. Counsel also pointed out that the respondent had completed the medium intensity sexual offending program during that period of imprisonment. The prosecutor expressly agreed that the totality principle applied.
The sentencing judge said this about the totality principle:
It is also relevant that the respondent has now been undergoing the regime of probation imposed by the sentencing judge now for some months and has performed satisfactorily. In such a circumstance, the further rehabilitation of the respondent could be damaged by requiring him to interrupt that program and to go to prison for a short time before having to again readjust upon his release.8
The submissions for the appellant accepted that the sentencing judge’s approach, in imposing a heavier sentence for two of the offences, was valid and in my view it should be adopted here. I would vary the two terms of 18 months imprisonment to two and a half years imprisonment, each suspended for a period of five years. I would not disturb the probation order made for the other offences.