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[2003] QCA 547
respondent. Application for leave to appeal against sentence refused.
The Court of Appeal refused the applicant’s sentence application. It held that the Act’s transitional provision allowed the original indefinite-sentence regime to apply to a sentence imposed after commencement, even for an earlier offence. The Court accepted that the guilty pleas and cooperation had value, but held that a plea does not always require a reduction. Given the scale, duration and seriousness of the offending, the sentences were not shown to be manifestly excessive.
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2,216 words · generated 02/10/2026
The Queensland Court of Appeal considered an application for leave to appeal against sentence. The applicant had pleaded guilty to 116 sexual offences against girls. The offending occurred over almost 28 years, from January 1972 to September 1999. Chesterman J recorded that 62 girls had been identified, with some other victims not identified [2]. The offences included maintaining sexual relationships with children, indecent treatment, and unlawful carnal knowledge.
1 cited instrument linked from this judgment.
The judgment describes the applicant as having used positions of trust to obtain access to children. He was a church youth leader and gymnastics instructor, and gained the confidence of parents [3]. The victims included members of his family, children of friends, and children he met through community organisations [3], [30]-[32]. The conduct ranged from touching and filming to penetration and the insertion of objects. The judgment also records evidence of substantial and lasting effects on victims, including counselling, difficulties with trust and emotional wellbeing, and effects on family members [24], [29].
The District Court imposed two life sentences for offences of maintaining a sexual relationship with a child with circumstances of aggravation. It imposed other fixed terms and, for two offences of unlawful carnal knowledge, nominal terms of 15 years together with indefinite sentences under s 163 of the Penalties and Sentences Act 1992 (Qld) [5]. All sentences were concurrent.
The applicant challenged the two life sentences and the indefinite sentences [6]. One argument was that an indefinite sentence could not apply to an offence committed before the Act commenced. The other was that the evidence did not establish a risk of serious physical harm if the applicant reoffended. On the life sentences, the applicant argued that a term of 15 to 18 years should have been imposed to recognise his guilty pleas [6]. The Court refused leave to appeal. McPherson JA and Mullins J agreed with Chesterman J’s reasons [1], [52].
The Court first dealt with the indefinite sentences. Section 163 allowed a court to impose an indefinite sentence instead of a fixed term for a violent offence, subject to statutory requirements. The relevant considerations included the seriousness of the danger to the community, the offender’s background and character, relevant reports, the risk of serious physical harm if an indefinite sentence were not imposed, and the need to protect the community [8]. Section 162 included an offence under s 215 of the Criminal Code in the definition of a violent offence [9].
The disputed offence occurred before the Penalties and Sentences Act commenced. The applicant relied on R v Mason; R v Saunders. The Court considered Mason distinguishable. Mason dealt with Part 9A, added by a 1997 amendment, and with whether later, more severe measures could apply to offences committed in 1996 [13]. Here, Chesterman J read s 204(1), which said the Act applied to any sentence imposed after commencement “irrespective of when the offence was committed”, as making the original Part 10 available [12]-[14]. The Crown conceded the applicant’s argument, but Chesterman J said both the submission and concession appeared wrong [11].
On risk, the Court relied on both the nature of the offending and expert evidence. The forensic psychiatrist, Dr Kingswell, assessed the applicant as presenting a very high risk of reoffending without supervision and considered the sexual preference likely to persist [15]-[16]. Dr White described the applicant as among the more dangerous people with that diagnosis whom he had encountered and assessed the chances of reoffending as extremely high if the applicant had an opportunity [17]-[18]. Counsel did not challenge that evidence or the sentencing judge’s finding that reoffending on release was all but certain [19].
The applicant’s argument focused on whether future offending would involve serious physical harm, given that past offending had not caused serious physical injury. The sentencing judge had referred to penetration and accepted that sexual activity by an adult with young girls carried a risk of serious physical harm [19]. Chesterman J agreed. He considered the nature of the acts, including penetration with fingers and objects, the ages of the victims, and the applicant’s established pattern of offending [20]-[32]. He concluded that there was a risk of serious physical harm if the applicant were released [32].
Chesterman J also gave an alternative reason at [33]. Even if the sentencing judge had been wrong about serious physical harm, Chesterman J said he would have exercised the s 163 power himself, referring to the future risk and the serious degradation and harm to victims and families. That alternative reasoning should be distinguished from the main conclusion that the sentencing judge’s finding was supportable.
On the life sentences, the Court accepted that the pleas had practical value. The applicant had assisted police to identify children and explain the recorded material, and the pleas spared victims from giving evidence [35]. But the Court held that guilty pleas do not always produce a reduction. Cameron v The Queen recognised that a plea may be mitigating even without remorse, because it can facilitate the administration of justice and spare victims the ordeal of giving evidence [37]-[38]. However, the reasons in Cameron did not impose a mandatory discount [39]-[41]. Section 13 likewise required the plea to be considered but said the court “may” reduce the sentence [40].
The Court then applied the maximum-penalty principles discussed in R v Marshall and Veen v The Queen (No 2). A maximum sentence is not excluded just because a worse case can be imagined; it is appropriate where the case falls within the worst category [42]-[44]. Chesterman J found this offending to be in that category [44]. He relied on the number of offences and victims, the period of offending, the victims’ ages, the planning involved, and the abuse of trust [49]-[50]. He also applied the sentence appeal threshold: showing that a lesser sentence could have been imposed is not enough; the sentence must be shown to be manifestly excessive [47]. The Court concluded that the life sentences did not meet that threshold [49]-[51].
The judgment explains two legal propositions against the statutory and case-law background it addresses. First, s 204(1) was a transitional provision for the Act as originally enacted. The Court read it to apply Part 10 to sentences imposed after the Act’s commencement, regardless of when the offence occurred [12]-[14]. That reading was not inconsistent with Mason, because Mason concerned later amendments that increased the applicable punishment, rather than the original Act’s transitional reach [13]-[14].
Second, the guilty-plea principle requires consideration, not an automatic or fixed discount. Section 13 requires a sentencing court to take a guilty plea into account and permits a reduction [40]. Cameron explains the public value of pleas, including saved trial costs and sparing victims from giving evidence [38]. The Court read Cameron and Siganto as supporting ordinary mitigation, while preserving a discretion to impose the otherwise appropriate sentence, including the maximum, in a sufficiently serious case [39]-[42].
The judgment does not describe a change in the law caused by this decision, and the provided text does not contain any later legislative or appellate history. Its contribution in this judgment is the application of the existing statutory language and authorities to these facts. It treats the original Part 10 as applicable through s 204(1), distinguishes Mason’s treatment of later amendments, and applies the established maximum-penalty and guilty-plea principles to an exceptional pattern of offending.
At [12], Chesterman J says s 204(1) makes Part 10 available “irrespective of when the offence” was committed. In plain English, the Court read the provision as addressing the date of sentence, not restricting the provision to offences committed after the Act began.
At [14], he says the reasoning in Mason is “not apposite”. That means Mason did not answer the question before the Court because it concerned later amendments, rather than the Act’s original sentencing provisions.
At [33], Chesterman J says s 163(4)’s listed factors “are not exclusive”. In context, the listed matters are important but do not prevent a court from considering other relevant circumstances. He added that even without a finding of serious physical harm, he would have imposed an indefinite sentence on the facts before him. That is an alternative rationale, not a reason to overlook the statutory criteria.
At [39]-[41], the Court explains that a guilty plea must be considered but does not necessarily secure a discount. In plain English, a plea can assist the offender because it saves resources and spares witnesses, but the sentencing court must assess it alongside the seriousness of the offending and the other circumstances.
At [47], the Court says an applicant must show that the sentence is “manifestly excessive”, rather than merely show that a lesser sentence was available. This frames the appeal question: the Court was reviewing whether the sentence crossed the applicable threshold, not choosing afresh between every sentence that might have been open.
At [49]-[50], Chesterman J links the life sentences to the scale of the offending and the protection of the community. The reasons emphasise the number of children affected, their ages, the duration and planning of the conduct, and the betrayal of trust.
The decision’s s 204(1) reasoning concerns sentences imposed after commencement of the Penalties and Sentences Act where the relevant indefinite-sentence provisions were part of the Act as originally enacted, but the offence occurred earlier. The distinction from Mason is important: the judgment says Mason concerned a later amendment that subjected offenders to more severe measures than those in force when the offences were committed [13]-[14]. The reasoning should not be detached from that distinction.
The risk analysis arose from a combination of circumstances, not from a bare diagnosis. These included decades of repeated offending, conduct directed at very young children, planning to obtain access through positions of trust, penetration and insertion of objects, expert evidence of a very high risk of reoffending, and the absence of a persuasive basis to expect the pattern to stop on release [15]-[19], [22]-[32]. The Court’s conclusion about risk followed from those features taken together.
The guilty-plea discussion is relevant to sentence cases where a plea has practical value, including by saving a trial and sparing victims from giving evidence, but where the sentencing court imposes a maximum penalty. The decision says the plea must be taken into account, but the result depends on the circumstances and does not have to be a defined reduction [39]-[42]. It also makes clear that the seriousness of the offending may outweigh the plea’s mitigating value in the final sentence.
Finally, the judgment addresses an appeal where the complaint is that a maximum sentence was imposed despite available mitigating features and comparable sentences in other cases. It states that comparison with other cases, or the possibility of a lesser sentence, does not itself establish manifest excess [45]-[49]. The court must assess the particular offending and apply the appeal threshold.
The judgment text supplied here does not identify any later decisions considering or applying R v D. It therefore does not support a conclusion about how later courts have treated this case. The authorities it discusses are authorities considered in this decision, rather than later treatment of R v D.
Within this judgment, Chesterman J distinguishes Mason on the operation of the transitional provision [13]-[14]; considers Cameron and Siganto on guilty pleas [36]-[41]; considers Marshall on the imposition of maximum sentences [42]; applies Veen (No 2) to the worst-category principle [43]-[44]; and refers to Veen (No 1) on community protection and life imprisonment [48]. Ruhland, R v P and Ridsdale are mentioned as sentencing comparisons, but the Court explains that their sentences do not resolve whether the sentences in this case were manifestly excessive [45]-[47].
The judgment does not set out a general medical or evidentiary test for determining when sexual offending against children creates a risk of “serious physical harm”. Its conclusion rests on the particular evidence, including the nature of the acts and expert assessments [15]-[20], [32]. The precise application of that statutory phrase to different conduct is not resolved by this decision.
The judgment also does not establish that every offence involving penetration, or every high risk of sexual reoffending, will satisfy s 163. Its reasoning is fact-specific and discusses the cumulative pattern, the victims’ ages, the seriousness and planning of the conduct, and the expert evidence. It does not define the boundaries of the statutory threshold for cases with materially different facts.
Nor does the decision prescribe a numerical discount for a guilty plea. It confirms that the plea must be considered and may warrant a reduction, while recognising that the maximum sentence remains available in a case within the worst category [39]-[44]. The judgment leaves the weight of a plea to assessment in the particular sentencing circumstances.
Finally, the supplied text does not provide later judicial consideration, subsequent statutory amendments, or a complete account of how the decision has operated in later cases. Those matters cannot be determined from this judgment alone.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, get a qualified Australian lawyer to check it.
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 D [2003] QCA 547
PARTIES: R v D (applicant)
FILE NO: CA No 259 of 2003 / DC No 3475 of 2000 / DC No 3335 of 2002 / DC No 3336 of 2002
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: District Court at Brisbane
DELIVERED ON: 12 December 2003
DELIVERED AT: Brisbane
HEARING DATE: 7 November 2003
JUDGES: McPherson JA, Chesterman and Mullins JJ / Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER: Application refused
CATCHWORDS: CRIMINAL TRIAL - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - APPEAL BY CONVICTED PERSONS - APPLICATION TO REDUCE SENTENCE - SEXUAL OFFENCES - where applicant made subject to a sentence of indefinite duration pursuant to s 163 of the Penalties and Sentences Act 1992 (Qld) - where declaration of conviction of a serious violent offence - where serious risk of physical harm to members of the community if applicant released - interaction between Part 10 and s 204(1) of the Penalties and Sentences Act 1992 (Qld) / CRIMINAL LAW - JURISDICTION PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - FACTORS TO BE TAKEN INTO ACCOUNT - FACTUAL BASIS FOR SENTENCE - PLEA OF GUILTY - whether the imposition of the maximum sentence afforded a recognition of the applicant’s plea of guilty - whether plea of guilty given adequate weight as a factor of mitigation - whether plea of guilty must result in a reduction of sentence - where there is a discretion to impose the maximum penalty in cases in which an offender has pleaded guilty / Acts Interpretation Act 1954 (Qld), s 20C(3) / Criminal Code (Qld), s 11(2), s 215 / Penalties and Sentences Act 1992 (Qld), s 13, s 163, s 204 / Cameron v The Queen (2002) 209 CLR 339, considered / R v Marshall [1993] 2 Qd R 307, considered / R v Mason; R v Saunders [1998] 2 Qd R 186, followed / R v P; ex parte Attorney-General(Qld) [2001] QCA 188,cited / R v Ridsdale (1995) 78 A Crim R 486, cited / R v Ruhland CA 147/1999, cited / Siganto v The Queen (1998) 194 CLR 656, considered / Veen v The Queen (No 1) (1979) 143 CLR 458, considered / Veen v The Queen (No. 2) (1988) 164 CLR 465, applied
COUNSEL: A J Rafter, with P J Davis, for the applicant / P F Rutledge, with S P Vasta, for the respondent
SOLICITORS: Legal Aid Queensland for the applicant / Director of Public Prosecutions (Queensland) for the respondent
[1] McPHERSON JA: I would refuse the application for leave to appeal against sentence. I agree with the reasons of Chesterman J.
[2] CHESTERMAN J: The applicant is a paedophile. For almost 28 years, from January 1972 until September 1999 he molested young girls for his own sexual gratification. He has an obsession with pre-pubescent female genitalia which he indulged by touching, observing, and photographing, and more intrusive activity, on as many occasions as he could contrive. His criminal conduct involved 62 girls who have been identified and some others whose names have not been discovered. He was ultimately charged, and pleaded guilty to, 116 counts of unlawful sexual activity. They include 19 counts of maintaining a sexual relationship with a child under the age of 16; 30 counts of the indecent treatment of a child under 12; 12 counts of indecent dealing with a girl under 14, two such counts with a girl under 12 and three similar counts with a girl under 16.
[3] He engaged in a variety of activities designed to bring him into contact with female children. He indecently assaulted his own one year old daughter. He obtained positions as a church youth leader and gymnastics instructor. He gained the confidence of parents so as to have access to their children. He used every occasion to betray the trust of friends and associates, as well as his wife, in his perverted lust. His victims include his own sister as well as his daughters, a niece and his cousin’s children as well as the children of friends.
[4] He was 17 years of age when he first committed an act of indecency upon his sister. He was 45 at the time of the commission of the latest offence. It was only his apprehension by police which stopped his predatory sexual activity. But for that there can be no doubt he would be at large in the community seeking out opportunities, and indulging in them, to molest more children.
[5] The applicant was sentenced to life imprisonment on each of two counts of maintaining a sexual relationship with a child under the age of 16 years with circumstances of aggravation. On 11 further counts of maintaining an unlawful sexual relationship with a child with circumstances of aggravation he was sentenced to 14 years imprisonment. On two counts of having unlawful carnal knowledge with a girl under 16 he was sentenced to a nominal term of 15 years imprisonment but made subject to a sentence of indefinite duration pursuant to s 163 of the Penalties and Sentences Act 1992 (Qld). On all other counts he was sentenced to five years imprisonment. All sentences were to be served concurrently.
[6] The applicant complains about the two life sentences and the imposition of the indefinite sentences. As to the former the submission is that a sentence of between 15 and 18 years should have been imposed to reflect the fact that the applicant pleaded guilty. He has said that he received no discount for that plea and this was an error in the sentencing discretion. The argument against the indefinite sentence is that the evidence relevant to the commission of the offences does not show that there is a serious risk of physical harm to his victims should he re-offend.
[7] It is convenient to deal first with the attack on the indefinite sentences. If that should fail the complaint about the imposition of life sentences loses much of its practical significance.
[8] Section 163 of the Penalties and Sentences Act 1992 (Qld) provides that:
‘(1)A court may, instead of imposing a fixed term of imprisonment, impose an indefinite sentence on an offender convicted of a violent offence on –
(a)its own initiative; or
(b)an application made by counsel for the prosecution
(3)Before a sentence is imposed under subsection (1), the court must be satisfied –
(b)that the offender is a serious danger to the community because of –
(i)the offender’s antecedents, character, age, health or medical condition; and
(ii)the severity of the violent offence; and
(iii)any special circumstances.
(4)In determining whether the offender is a serious danger to the community, the court must have regard to –
(a)whether the nature of the offence is exceptional; and
(b)the offender’s antecedents, age and character; and
(c)any medical, psychiatric, prison or other relevant report in relation to the offender; and
(d)the risk of serious physical harm to members of the community if an indefinite sentence were not imposed; and
(e)the need to protect members of the community from the risk mentioned in paragraph (d).
(5)Subsection (4) does not limit the matters to which a court may have regard in determining whether to impose an indefinite sentence.’
[9] By Section 162 a ‘violent offence’ is defined to mean, inter alia, an offence against s 215 of the Criminal Code which makes it unlawful to have or attempt to have unlawful carnal knowledge with a child under the age of 16 years.
[10] It was contended that one of the indefinite sentences cannot be sustained. It was the one imposed for the offence described in count 43 on the second (longer) indictment dated 28 November 2002 presented against the applicant. The charge was of having unlawful carnal knowledge with a girl under the age of 16 between 19 June 1992 and 6 July 1992. The offence pre-dated the commencement of the Penalties and Sentences Act on 27 November 1992. The submission was that the reasoning of the court in R v Mason; R v Saunders [1998] 2 Qd R 186 is applicable with the result that Part 10 of the Act dealing with indefinite sentences does not operate retrospectively.
[11] Counsel for the Crown accepted that the submission was correct and conceded that the indefinite sentence should be set aside. Both the submission and the concession appear to be wrong.
[12] Section 204(1) of the Penalties and Sentences Act provides:
‘This Act applies to any sentence imposed after the commencement of the section, irrespective of when the offence was committed.’
The Act was assented to on 24 November 1992. Section 204(1) commenced on that day. As originally enacted the Act included Part 10, the subject matter of which is indefinite sentences. The apparent effect of Section 204(1) is to make the provisions of Part 10 applicable ‘irrespective of when the offence’, in respect of which an indefinite sentence might be imposed, was committed.
[13] Mason was concerned with the operation of Part 9A of the Penalties and Sentences Act which came into operation on 1 July 1997 by way of amendment to that Act. Mason and Saunders committed serious violent offences in September 1996 but were sentenced in August 1997 subsequent to the inclusion of Part 9A. The court held that s 11(2) of the Criminal Code (Qld) and s 20C(3) of the Acts Interpretation Act 1954 (Qld) forbad punishment by reference to the more severe measures to which Part 9A gave rise. Importantly the court held that s 204 did not apply to amendments made to the Penalties and Sentences Act after November 1992 which had the effect of subjecting an offender to a greater penalty than that to which he would have been exposed under the law at the time the offence was committed. Davies and Pincus JJA (with whom de Jersey J agreed) said (188):
‘It (Section 204(1)) was a transitional provision in the original Act, its purpose being to ensure that any sentence imposed after 27 November 1992 would be subject to terms of the Act as originally enacted notwithstanding that the offence in respect of which it was imposed was committed before that date.
[14] The reasoning in Mason is not apposite. Section 204(1) applies so that the provisions of Part 10 were available despite the offence having been committed prior to the commencement of the Act.
[15] Dr Kingswell, a most experienced forensic psychiatrist, examined the applicant and reported for the purpose of sentencing. He wrote:
‘(The applicant) victimised girls aged between 18 months and 16 years between the years 1972 and 1998. The pattern was of exclusive heterosexual paedophilia. (The applicant) was aware of his interest in young girls from his teenage years. He had never been in a stable heterosexual relationship … he did not develop much sexual interest in his wife …
(The applicant) said that between 1976 and 1988 he maintained an interest in sexual activity with children and took a number of pictures in public and private areas. He denied offending physically against children during this period although did acknowledge there was a victim from 1982. … Between 1988 and 1998 (the applicant) was involved in hundreds of offences including carnal knowledge. 177 video cassettes were seized along with a number of computer discs and his computer. (The applicant) had hidden cameras throughout his home. He took any opportunity presented to interfere with children. … (The applicant) was never unaware of the illegal nature of his actions … He reported “I had a choice and I made that decision”. He said he was confident that he could have chosen to act in a different fashion but did not because the opportunity to offend against children was present. Most victims he said were unaware of his behaviour and he did not consider that he was hurting them.
(The applicant’s) behaviour identifies him as a paedophile and his admissions reveal he has paedophilia of heterosexual and exclusive type. That is, his interest in female children was his only strong sexual preference. … (It) was evident in adolescence and had persisted throughout adulthood … (The applicant) throughout the assessment sought to minimise the extent of his offending. His greatest concern was for his future. At no time did he express any concern for his victims and reported that, as many were unaware of his offending, he had done no harm.
(The applicant) has been quite stable in his range of behaviours, which have been predominantly to take photographs and videos and touch … vaginas and breasts. However, there are a number of much more serious offences, including rape.
Victims have included his sister, biological daughters and children contacted through his positions in community organisations.
(The applicant’s) behaviour has been well planned, carefully executed and escaped legal prosecution for almost 30 years despite previous police inquiries. There was no evidence that (the applicant) was incapable of exercising proper control over his sexual instincts. He did so whenever detection was likely. There was no evidence of any intellectual deficit, physical illness, mental retardation, psychiatric illness or substance use disorder which would have lessened or prevented capacity to control sexual instincts.
There are a number of comments … relevant to this case.
1.…
2.Sexual preference probably persists throughout life. There are a number of follow-up studies of sex offenders that have reported continued offending 25 years after the index offence.
3.Biological and psychological treatments might reduce recidivism but the evidence is not compelling …’
[16] Dr Kingswell gave evidence before the sentencing judge. He said:
‘… In terms of looking at his overall profile without supervision he is at very high risk of re-offending … Incarceration is not going to change (the applicant’s) sexual preference …
So it might very well be that if (the applicant) was incarcerated for quite a lengthy period of time, upon release he would not re-offend? – I don’t think there is a lot of evidence to support that if you are talking about release from any kind of supervision. … These are disorders that are lifelong … I’m talking about likelihood. I think with … no supervision the likelihood of re-offending is enormously high. And so if we are talking about what is a period of custody going to do, a period of custody is going to protect the community for as long as that period of custody is in place and as soon as he is released from that custody … then we return to a very high risk of re-offending.
A risk of re-offending at some degree but can’t say what degree, can you? – Well, I can say it was very high because I think he has a whole lot of very negative risk factors in his profile … If you look at the literature sex offenders do tend to repeat the same sort of offending. They don’t change their spots. They don’t … change from an heterosexual paedophile to an homosexual paedophile, or from an heterosexual paedophile to a rapist, that’s not really the pattern, but people do tend to repeat their established behaviours.
Well you can’t say surely that after a lengthy period of incarceration, plus a lengthy period of proper control, you can’t say that it is then likely that he would return to this level of offending, can you? - There is a measurable risk that he would.
But it is not a likelihood. You can’t say that surely? - … This man began offending at 17, he is now 48. We know from the literature that these disorders persist lifelong. I think the risk would sit with him forever, I can’t see how you are going to modify that. I mean we are talking … about changing somebody’s sexual preference. It’s not going to happen, is it?
The issue is whether or not he can learn to control it? - That’s right.
… My view is he would have to control it if … supervision was adequate, rather than choose to do so. The problem for me is he has got a 30 year history of not choosing to do so … and I find that very concerning. … There is a significant risk of re-offending at the end of any period on incarceration.’
[17] The applicant was also examined by Dr White, a consultant physician in psychiatry at the Mater Hospital. He reported:
‘(The applicant) stated that once the police had made him aware of the suffering, which his victims had alleged, he had no longer found it appealing. He said that he had been unaware that any of his victims had suffered or had not wanted him to embark upon his activities. He stated that a number of his victims were clearly unaware of any contact by him. He particularly related this to occasions of assault where he had moved young children’s underwear whilst they were asleep, or otherwise preoccupied.
However he appeared to be confused when questioned about his more serious assaults in which the young girls can be seen on video tape to be crying and are pleading with him to stop. He was unable to explain … how it was that he was unaware of their suffering. On all these occasions he would turn to discussions of other small children who had not protested.
(The applicant) and I discussed his 30 years history of offending behaviour during which time he made 177 video cassettes and other computer discs. He had hidden cameras throughout his house and at other times in other people’s houses. I agree with Dr Kingswell that he appeared to have taken any opportunity presented to him to interfere with children.
(The applicant) was at all times aware of the illegal nature of his offending. He does not appear to have made any attempts to curtail his offending behaviour or bring himself to the attention of authorities.
There was no abnormality of (the applicant’s) insight or judgment. In relation to the issue of remorse, there were inconsistencies in … accounts that more properly reflect a lower level of moral development, probably that of regret. (The applicant) regrets the result of his actions now that he has been apprehended and imprisoned … His actions were consistently of a predatory and sadistic nature over a prolonged period of time. There is no evidence that there is any intervention available which is likely to reduce his dangerousness to the community at any time in the future.’
[18] Dr White also gave evidence. He said:
‘I thought that (the applicant) was one of the more dangerous people with that diagnosis (paedophilia, heterosexual type, exclusive) that I have met and I thought that his chances of re-offending were extremely high if he were allowed the opportunity to do so.
… You described his actions as predatory. … What led you to that conclusion? - It appeared from the evidence that (the applicant) had spent a large amount of time availing himself of the opportunity to offend against young children and that the efforts that he had gone to had been of a quite exceptional nature. If one were to consider the normal heterosexual or homosexual actions of the general community … people would not normally spend as many hours upon hours upon hours in the pursuit of sexual contact or go to the lengths that (the applicant) appears to have done. … In relation to the comment about sadistic, I’d refer to the three victims that I have … mentioned and the screams and pain that was clearly evident. My assessment is if an offender was able to tolerate that and to maintain sexual arousal and interest it can only be held to be of a sadistic nature.
Now you also say … there is no evidence that there is any intervention available which is likely to reduce his dangerousness … in the future. Is that so? - Yes.
And what basically has led you to that conclusion? - You will have seen my literature review which was done several years ago. It was the sum total of virtually two years working half time on nothing else but that … I would suggest I have probably read more of the literature than most other people in the area. I have worked in the Corrective Services for over 15 years and much of that time was involved with … assessment of people with sexual offences. So I feel I have some grounds for an opinion.’
[19] Counsel for the applicant did not challenge this evidence or the finding of the sentencing judge that it is all but certain that the applicant will re-offend when released from prison. The point taken was that the offences of which the applicant was convicted did not involve the use of excessive or actual violence so that there was not a risk of serious physical harm to members of the community should the applicant re-offend in the future as he has in the past. The District Court judge to whom the same submission was made rejected it. His Honour pointed to the fact that the applicant had penetrated the vaginas of many of his victims using fingers, vegetables, writing implements and, on two occasions, his penis. The learned judge accepted the view that sexual activity by an adult with young girls ‘carries with it the risk of serious physical harm.’
[20] In my opinion his Honour’s conclusion cannot be fairly criticised. A review of some of the applicant’s conduct shows why.
[21] A grim starting place is afforded by the two offences found in the first indictment: that the applicant between May 1995 and September 1999 maintained an unlawful relationship of a sexual nature with JLC, a child under 16 years, in the course of which the applicant had unlawful carnal knowledge of JLC when she was under 12; and that in April 1996 the applicant had unlawful carnal knowledge of JLC when she was less than 12.
The first of these charges resulted in a sentence of life imprisonment. The second resulted in the other sentence of indefinite duration.
[22] The following is a summary of the applicant’s misbehaviour with JLC:
‘He met JLC in 1992 at a gymnastics club where the applicant was an instructor. He became JLC’s instructor. He got to know the family and started to encourage them to send JLC’s brother to Boys’ Brigade where he was a leader. He became close to the family who started to respect him as “an important person in the community”. They accepted what the applicant told them and had no qualms about leaving JLC in his company. The families often holidayed together and kept in touch even after the applicant moved to Victoria.
Offences involved sexual intercourse, fellatio, cunnilingus, digital penetration and the inserting of foreign objects such as carrots and pens into the vagina. A large amount of video footage was taken but JLC claims that only about half of their sexual activity was photographed. Police located 16 edited video tapes containing images of the applicant’s sexual activity with JLC on different occasions. The complainant’s statement identifies over 100 separate incidents. The offences occurred whenever the applicant had access to JLC and took place at his house or caravan, but also his car and at the Brisbane Exhibition and Gold Coast theme parks. The applicant used considerable emotional coercion. He importuned her not to reveal what he had done.’
[23] The offences were committed over a period of four years when JLC was between 10 and 14 years and the applicant was between 41 and 45. On some occasions when the applicant was indecently assaulting JLC and photographing the event the camera was connected to a television set in the room so that he could watch their activities as they occurred. On two occasions when the applicant inserted his fingers into the complainant she is observed on the video tape to be in pain and to cry. He persisted.
[24] JLC described the consequences in her victim impact statement. She wrote:
‘Since the abuse I have had several medical problems … These have included … skin allergies, general sickness and stress, and sleeping disorders. Over the last three years it has been necessary for me to use various types of medications some of which I am still required to use.
I have also been emotionally affected by my experiences. I currently attend counselling sessions each week and have been doing this since early 2000. … I find it extremely difficult to express emotion towards others. I also find trusting others is challenging and I have sometimes … felt suicidal. I have also found that … concentrating on work has become a hard task and this has affected my performance at school. My family has also required counselling … They too have required medication and my mother is currently required to use anti-depressant drugs.’
[25] Another complainant, ELM, with whom the applicant maintained a sexual relationship over a period of three years was three when he began molesting her. He was then 42. They met through the applicant’s church where he gained the trust of ELM’s parents who allowed her to visit the applicant’s house to play with the applicant’s daughters. Offences involved touching and fondling ELM’s vagina and filming her genital area.
[26] Counts 42 and 43 in the second indictment were, respectively, that between 1 January 1991 and 10 December 1992 the applicant maintained an unlawful sexual relationship with AIF who was then under 12 and was in the applicant’s care; and that between 19 June 1992 and 6 July 1992 the applicant had unlawful carnal knowledge of AIF who was then under 12.
For the first of these two offences the applicant was sentenced to life imprisonment. For the second he was given an indefinite sentence. This is the one that the applicant claimed should be quashed because it occurred prior to the commencement of the Penalties and Sentences Act.
[27] The offences were committed over a two year period when AIF was between 10 and 11 and the applicant 27 years older. They met through gymnastics. The applicant was her coach. The complainant’s parents trusted the applicant with AIF and her sister to the extent that during mid-year holidays the two girls stayed at the applicant’s house because they were taking part in gymnastics demonstrations. The offences involved touching AIF on the vagina and filming her while bathing and in other positions where her genitals were exposed. His criminal conduct included an act of sexual intercourse and fellatio. After these events the applicant told AIF not to tell anyone what had happened or ‘he would lose his job and his wife.’ This made AIF feel responsible to avoid that consequence.
[28] During the period that the applicant was systematically molesting AIF he abused her younger sister, JLF. The offences involved touching the child’s vagina and filming her genitals.
[29] AIF has been badly affected. Her victim impact statement explains:
‘… In 1992 I was raped by (the applicant)1 … He took so much more than just that. He took my dignity, my sense of worth, my right to choose. He tore my family apart. It took me six years to tell my family all of what he had done to me. It took a really long time for me to be able to close my eyes without seeing his face.
My mother still blames herself. In many ways I think I blame her too. How could she have let this happen to me? It’s not fair that I blame her. … I lost the first boy I ever loved because I couldn’t let go of what had been done to me. I thought there was only one thing he could want from me. It never occurred to me that not everyone would take something from me.
Trying to pretend it didn’t happen didn’t work. I tried a new theory. I’d lost everything – it didn’t matter what I did anymore. I fought with my parents constantly – they couldn’t love me if they could let this happen. I pretended I didn’t care. I went out a lot. Formed meaningless relationships. I would get drunk fairly often. I experimented with drugs. … I hated myself. My family … was shattered. I didn’t want to be alone any more. … I … got sleeping tablets … I took half the bottle. And it was the first time in a long time that I didn’t see his face. I didn’t feel or sad or lonely or lost or worthless. I just felt free. …’
[30] The applicant’s first criminal behaviour was committed on his sister when she was between 10 and 12 years old and he was between 18 and 20. The offences involved the applicant fondling his sister’s vagina with his hand and penis. He used his age and superior position in the family to ensure her compliance.
[31] The applicant’s youngest victim was his own daughter. He photographed himself inserting his finger into her vagina when she was about one year old as he changed her nappy.
[32] The applicant indecently assaulted and dealt with 62 girls over a 30 year period. He maintained sexual relationships with several of them at the same time. His obsession was with pre-pubescent and often very young children indeed. He sought and obtained positions of trust and respect in his own church community and youth groups and gymnastic clubs. He did this for the sole purpose of obtaining a source of female children to molest for his gratification. He won the trust of their parents intending to betray it and so as to gain access to their daughters. His depravity extended to his own infant daughter whom he photographed while he molested her. He inserted his penis, fingers, carrots, pens and pencils into the vaginas of these children. On the evidence there is no real doubt that were the applicant to be released from prison after serving a finite term he would re-engage in the same predatory, sadistic sexual activity. Given the nature of that activity and the preferred age of the applicant’s victims it is impossible, it seems to me, not to conclude that there is a risk of serious physical harm to members of the community if he were released. That was the opinion of the learned District Court judge who passed sentence on the applicant and I agree with it.
[33] It would not matter to the outcome of the application if the submission of counsel for the applicant were accepted. The argument was that because of the fortuity that there has been no serious physical harm done to any of the complainants by the applicant’s past conduct it can not be concluded that similar misconduct in the future would involve risk of serious physical harm. If the sentencing judge were wrong in his conclusion, that the applicant’s pattern of conduct does constitute a risk of serious physical harm to members of the community, it would be necessary for this court to itself exercise the sentencing discretion. Given the degree of menace which the applicant constitutes to society, particularly young female society, I would have exercised the power given by s 163. The factors enumerated in subsection 4 are not exclusive. Other factors may make it appropriate to order the indefinite detention of an offender. Given the nature of what the applicant has done, and will do in the future unless confined, it is necessary that he be detained in prison indefinitely, subject, of course, to the reviews provided for by Part 10 of the Act. Whether or not there would be a risk of serious physical harm there would inevitably be further degradation and outrage, blighted lives and families made miserable. It is in the interests of the community that this suffering be avoided by confining the applicant indefinitely.
[34] Because the indefinite sentence should not be disturbed the applicant’s challenge to the two life sentences imposed on him has less practical significance. The submission is that the imposition of the maximum punishment allowable afforded no recognition for the applicant’s pleas of guilty.
[35] Subsequent to his arrest and the discovery of the video tapes and the computer discs containing images of his depravity the applicant assisted the police to identify the children who had been photographed and provided information about the circumstances of the offences. His plea of guilty ‘facilitated the course of justice’ and saved the victims from the embarrassment and anguish of having to give evidence. These were factors which had to be taken into account in passing sentence. In this case the sentencing judge thought other factors were so grave that they called for the maximum penalty.
[36] It is clear from the psychiatric evidence that the applicant has no remorse for his appalling misconduct. His only feeling is of regret that he had been caught and imprisoned. Nevertheless there was some utility to the community and to the administration of justice in the pleas of guilty. The applicant submits that Cameron v The Queen (2002) 209 CLR 339 requires that some reduction from the maximum be allowed for the pleas and their consequences in saving resources and the feelings of the victims.
[37] In Cameron it was made clear that a plea of guilty need not be the product of, or accompanied by, remorse on the part of a prisoner before it may be taken into account as an ameliorating factor in the exercise of the sentencing discretion. A plea of guilty made by a prisoner who is not remorseful and shows no contrition for his misbehaviour may still result in a reduction in sentence on the ground that the plea expresses a ‘willingness to facilitate the course of justice’.
[38] What is meant by facilitating the course of justice appears in the judgment of Kirby J. His Honour said (360-361):
‘The main features of the public interest, relevant to the discount for a plea of guilty, are “purely utilitarian”. They include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner … it also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; supply of legal aid …; witness fees; and the fees paid … to any jurors … even a plea at a late stage … may, to some extent, involve savings of all these kinds … It is in the public interest to facilitate pleas of guilty by those who are guilty and to conserve the trial process substantially to cases where there is a real contest about guilt. Doing this helps ease the congestion in the courts that delay of the hearing of such trials as must be held. It also encourages the clear-up rate for crime and so vindicates the public confidence in the processes established to protect the community and uphold its laws. A plea of guilty may also help the victims of crime … Especially in cases of homicide and sexual offences, a plea of guilty may spare the victim or the victim’s family and friends the ordeal of having to give evidence.’
[39] Nevertheless it is clear from the judgment in Cameron that while a plea of guilty will ordinarily result in a reduction in sentence it will not necessarily do so. Gaudron, Gummow and Callinan JJ in their joint judgment referred with approval to Siganto v The Queen (1998) 194 CLR 656 in which it was said that a plea of guilty is ordinarily a matter to be taken into account in mitigation (emphasis added). Kirby J said (358):
‘Unless specifically authorised by legislation, no principle or guideline could be adopted that obliged the application of a rigid approach or an unchanging discount for a plea of guilty. In each case, it is necessary to the sentencing judge to take such a plea into account, but having regard to all the circumstances. It is not the law that a sentencing judge must exercise a discretion to provide a given reduction in a sentence for a plea of guilty.’
[40] This principle is recognised by s 13 of the Penalties and Sentences Act which provides that when passing sentence on an offender who has pleaded guilty the court must take the guilty plea into account and may reduce the sentence that it would have imposed had the offender not pleaded guilty. The section clearly recognises that there may be occasions when it is appropriate to offer no reduction to an otherwise appropriate sentence by reason of the fact that the offender has pleaded guilty.
[41] I do not read the judgments in Cameron as mandating the result contended for. That case establishes that a plea of guilty unaccompanied by remorse may still, and will ordinarily, entitle a prisoner to a reduction in the severity of his sentence. The judgments make it clear that a plea of guilty, with or without remorse, is a factor to be regarded in fixing the appropriate sentence. Their Honours were careful, it seems to me, not to lay down in principle that a plea of guilty must always and necessarily result in a reduction from the maximum.
[42] That there remains a discretion to impose the maximum penalty in cases in which an offender has pleaded guilty is recognised in R v Marshall [1993] 2 Qd R 307. Macrossan CJ said (311):
‘Two factors should be noticed. A timely guilty plea by an accused person who shows remorse and saves the State the expense and perhaps a complainant the pain of a full trial deserves recognition in sentencing but calls for no specifically quantifiable reduction.
Next cases which show a degree of variation in the seriousness of their circumstances can nevertheless each result legitimately in the imposition of the maximum statutory penalty. It has long been exposed as a heresy to suggest that the statutory maximum should never be imposed because it is always possible to imagine a worse case: R v Manson [1974] Qd R 191 and Veen v The Queen (No. 2) (1988) 164 CLR 465 at 478. Every ameliorating circumstance that exists and every absence in some respect of the gravest possible aspect do not necessarily preclude the imposition of the statutory maximum. Thus, although it is only in the most serious cases that consideration should be given to the imposition of the statutory maximum … it is a matter always of balancing the aggravating circumstances with the ameliorating factors. It may be an unimpeachable exercise of discretion to order confinement for the maximum term even though, for example, the offender is relatively youthful and does not have the worst type of criminal record. This can be so if the circumstances of the commission of the offence in question are so bad that the maximum term is the appropriate penalty. In short, the discretion of the sentencing judge continues to operate.’
In their joint judgment Davies JA and Williams J said (313):
‘It clearly emerges from the analysis made by the learned Chief Justice that there will be a variety of circumstances (or combination of circumstances) which would entitle, or even require, the sentencing judge to impose the maximum sentence allowable by law. One can no longer contend that a sentence is manifestly excessive merely because it is the maximum that may be imposed and there have been or can be worse cases.’
Marshall was a case in which the offender pleaded guilty and was sentenced to the maximum term of imprisonment imposable for the offences with which he was charged. The Court of Appeal reduced the sentence, not because the plea of guilty required it, but only because the sentencing judge had not made allowance for a substantial time the prisoner had spent in custody awaiting sentence.
[43] In Veen Mason CJ, Brennan, Dawson and Toohey JJ said (478):
‘The second subsidiary principle material to this case is that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed … That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worst category.’
I apprehend that these remarks apply not only to imaginably worse cases. There may be actual cases which are worse in some particular or to some slight degree. A maximum penalty will be appropriate if the case is in the ‘worst category’.
[44] This case is in the worst category.
[45] The applicant’s argument is that sentences of life imprisonment have not been imposed in Queensland on those convicted of numerous and serious sexual offences. Three cases are cited as examples. The first is R v Ruhland CA 147/1999 in which 13½ years imprisonment were imposed on an offender who had committed 98 offences against 12 boys including 20 instances of sodomy against a 13 year old boy. At the time of the offences Ruhland was on parole having been released from a sentence for similar offences. He was part of what was called a ‘paedophile ring’. The second case is R v P; ex parte Attorney -General [2001] QCA 188 in which 17 years imprisonment was awarded for an offender who had committed 236 offences including sodomy of eight boys. The third case, from Victoria, R v Ridsdale (1995) 78 A Crim R 486 was one in which 18 years imprisonment was imposed in respect of 46 counts of a variety of sexual offences including buggery, indecent assault and gross indecency on boys and girls over a period of 21 years.
[46] In R v P both the prisoner and Attorney General appealed, the one complaining about the severity of the sentences and the other that a period of life imprisonment should have been imposed. Both appeals failed. The President observed that the sentence ‘was within the appropriate range’. The Attorney’s appeal was dismissed because it was impossible to regard a sentence of 17 years, 80 per cent of which must be served before the prisoner would be eligible for parole, as manifestly inadequate.
[47] The cases to which the applicant refers show that a sentence of 17 or 18 years for the offences of maintaining a sexual relationship with an underage child in the circumstances found here could be appropriate. That, however, is not the test which an applicant for leave to appeal against sentence must satisfy. It is not enough to show that another sentence would have been appropriate or even more appropriate than the one under challenge. What must be demonstrated is that the sentence is inappropriate because it is manifestly excessive. It is not enough that a proper exercise of the sentencing discretion could have resulted in a lesser penalty.
[48] The majority judgment in Veen recognised that a relevant factor in the exercise of the sentencing discretion is the perceived need to protect society from the criminal whose behaviour needs to be punished. Their Honours quoted with approval remarks made by Mason J in Veen v The Queen (No. 1) (1979) 143 CLR 458 at 469:
‘… there is no opposition between the imposition of a sentence of life imprisonment with the object of protecting the community and the proportionality principle. The court imposes a sentence of life imprisonment on taking account of the offender’s record, his propensity to commit violent crime, the need to protect the community and the very serious offence of which he stands convicted …’
[49] That consideration is not so compelling in this case where an indefinite sentence has been imposed to ensure the protection of the public. It is still a factor to be considered. In my opinion it is not possible to regard the life sentences imposed on the applicant as being manifestly excessive. One has to have regard to the scope of the offending, the number of offences, the period over which they were committed and the number of children whom the applicant mistreated. It is also necessary to remember the very tender age of some of the victims. Some were infants. The applicant’s conduct involved the planned and systematic corruption of innocence. He employed cunning, determination and calculation to defile the helpless and the vulnerable. He has left behind a trail of misery, outrage and despair. The applicant’s conduct must be condemned in the strongest terms.
[50] In a case of this kind the protection of the community is a principle purpose of the sentence. That requirement coupled with the enormity of the harm done to those who had every reason to trust the applicant is a sufficient justification for the life sentences.
[51] I would refuse the application.
[52] MULLINS J: For the reasons given by Chesterman J, I also would refuse the application for leave to appeal against sentence.
The charge against the applicant to which he pleaded guilty was having unlawful carnal knowledge, not rape. ↩
R
D [2003] QCA 547
(2002) 209 CLR 339
(1998) 194 CLR 656
(1979) 143 CLR 458
(1988) 164 CLR 465
Application for leave to appeal against sentence refused.