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[2008] QCA 67
Court of Appeal (Qld)
2008-03-28
McMurdo P, Holmes JA and Mackenzie AJA, Separate, reasons for each member of the court, each concurring as to the orders
Original judgment source is linked above.
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 EH [2008] QCA 67
PARTIES: R v EH (applicant/appellant)
FILE NO/S: CA No 175 of 2007 / DC No 302 of 2007 / DC No 303 of 2007
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: District Court at Southport
DELIVERED ON: 28 March 2008
DELIVERED AT: Brisbane
HEARING DATE: 22 February 2008
JUDGES: McMurdo P, Holmes JA and Mackenzie AJA / Separate reasons for each member of the court, each concurring as to the orders made
ORDERS: Application for leave to appeal against sentence allowedSet aside the sentences imposed at first instance.Substitute a sentence of six months imprisonment on count 7 on Indictment 4428/07Substitute sentences of two years imprisonment on counts 1-6 and 8 on Indictment 4428/07Substitute a sentence of six years and nine months imprisonment on the maintaining count on Indictment 4429/07****Fix the parole eligibility date at 20 December 2008
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – DISPARITY- GENERALLY – where applicant pleaded guilty to one count of maintaining an unlawful sexual relationship with a child under 16 years, two counts of indecent treatment of a child under 12 years, and six counts of indecent treatment of a child under 16 years – where indecent treatment counts accompanied by aggravating circumstance that the child was in his care – where applicant sentenced to seven years and nine months imprisonment, with eligibility for parole after three years –– where relevant acts in maintaining charge included the applicant sucking, rubbing lubricant on and masturbating the complainant’s penis, and procuring the complainant to sodomise the applicant – where six indecent treatment counts involved relatively brief incidents of touching the genitals or genital areas of two complainants – where two indecent treatment counts involved the applicant supplying alcohol to, and showing pornography to, three of the complainants – where victim impact statements demonstrated deleterious effects upon two of the complainants – where applicant had no criminal history – where applicant did not use violence – where offending, with the exception of the procuring of sodomy, was at the lower end of the scale – whether sentence manifestly excessive / Criminal Code Act 1899 (Qld), s 229B / R v BAO [2004] QCA 445, considered / R v Dillon [2003] QCA 305, considered / R v H [2003] QCA 392, considered / R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered / R v SAG (2004) 147 A Crim R 301; [2004] QCA 286, considered / R v Souter [2002] QCA 516, considered / R v TWB [2001] QCA 111, considered
COUNSEL: B W Farr SC for the applicant/appellant / S G Bain for the respondent
SOLICITORS: Kelly & Thomas Lawyers for the applicant/appellant / Director of Public Prosecutions (Queensland) for the respondent
McMURDO P: I agree with Holmes JA.
HOLMES JA: The applicant was convicted, on a plea of guilty, of one count of maintaining an unlawful sexual relationship with a child under 16 years between July 2003 and April 2006, two counts of indecent treatment of a child under 12 years, with a further aggravating circumstance that the child was in his care, and six counts of indecent treatment of a child under 16 years, with the same aggravating circumstance. He was sentenced to seven years and nine months imprisonment on the maintaining charge with an eligibility for parole date set at 20 April 2009, which, allowing for a period of pre-sentence custody which could not be declared, made the applicant eligible for parole after three years in custody. Concurrent sentences of four years imprisonment were imposed on the indecent treatment counts.
The factual basis for sentencing
The maintaining count concerned a complainant who at the relevant times was aged between 12 and 14 years. He suffered from the difficulties associated with Asperger's syndrome. Six incidents were identified to support the maintaining charge. They occurred on four different occasions while the complainant was staying at the applicant's house, the last occasion being while the applicant was on bail on the indecent treatment charges, with the condition that he not have unaccompanied contact with any child under the age of 16 years. At that time, the applicant's own son had been removed from his care and he invited the complainant, his son's friend, to visit him. Four of the relevant acts involved masturbation of and sucking of the child's penis. The fifth concerned the applicant rubbing lubricant on the complaint's penis, immediately followed by the sixth act, the applicant procuring the complainant to sodomise him.
The indecent treatment charges involved three different boys, friends of the applicant's son, who stayed at his house on various occasions. Six of the counts involved relatively brief incidents of touching the genitals or genital area of two of the boys, A and J. A was only 11 years old at the time two of the assaults on him occurred, while in the other instances A and J were aged 12 or 13. The remaining two counts concerned two separate occasions on the same evening when the applicant showed his own son and two friends, A and H, pornographic films, having first given them vodka cruisers to drink. The applicant’s son and A were then 13; H was 14.
The applicant took part in an interview with police officers in relation to the indecent treatment charges, in which he confirmed a good deal of the surrounding detail but not the offences themselves. The maintaining offence came to light later, when the applicant's son became aware that the complainant was staying at his father's house notwithstanding the contravention of bail conditions, and the complainant's father was informed of the situation. The applicant did not take part in any interview in relation to the maintaining charge.
The sentence hearing
Victim impact statements from the parents of two of the boys and from the applicant's own son were tendered. The father of the boy who was the complainant in respect of the maintaining charge said that he had exhibited considerable regression in his behaviour. H’s mother referred to his change in temperament from being confident and outgoing to an anxious, confused and depressed state. The applicant’s own son spoke of his feelings of insecurity, anger, shame, embarrassment and guilt for what had happened to his friends.
The prosecutor at sentence contended, by reference to a schedule of sentences for maintaining, that the sentencing range lay between eight and nine years. Four hundred and forty nine days (not quite 15 months) that the applicant had already spent in custody could not be declared, but should be allowed for by adjusting the head sentence to reflect that period, and the parole eligibility date set at one third of the head sentence, brought forward by approximately 15 months to allow for the time served.
The applicant was aged between 47 and 50 years at the time of the offences. He held a business degree and had occupied a senior position in publishing. He suffered from diabetes and hypertension, which his counsel at sentence said had presented some difficulties in the prison environment but were likely to improve once he left the remand section for the regular prison system. The applicant had no relevant criminal history; his counsel referred to, but, surprisingly, chose not to tender, a number of character references. Defence counsel argued for a notional head sentence of eight years imprisonment with a parole eligibility date at one third, i.e., two years and eight months. Both head sentence and parole eligibility date, he said, should be adjusted to allow for the 15 months served.
The learned sentencing judge described as the most serious feature of the offending the fact that the applicant was subject to a bail condition preventing him from having contact with children when he initiated the contact with the complainant on the maintaining charge and procured him to engage in sodomy. Her Honour emphasised the youth of the complainants, their vulnerability, particularly that of the child with Asperger's syndrome, the applicant's manipulation of the boys and the effects of his conduct on them. She referred to the applicant's co-operation by way of an early plea of guilty, his lack of relevant previous convictions and his otherwise good standing in the community (which she accepted, notwithstanding the absence of documentation). However, she considered that the aggravating features of the offending warranted a sentence at the higher end of the range identified by the prosecutor, of nine years imprisonment. Her Honour ultimately set the sentence at seven years and nine months to recognise the 15 months spent in custody, with a parole eligibility date after a three year period which included the time already served.
Counsel’s submissions on the sentence application
Counsel for the applicant here submitted that the sentences of four years for the indecent treatment counts were manifestly excessive. One of those offences involved the applicant’s tickling and rubbing the stomach of one of the complainants and moving his hand towards the groin area; it did not warrant more than six months imprisonment, while the remaining counts did not call for a sentence in excess of two years. There was a concern that her Honour’s misperception of the seriousness of the lesser offences had led her to an erroneous view of the appropriate starting point for sentence on the maintaining count.
The proposition that the sentences for the indecent treatment counts were too high was not strenuously resisted by counsel for the respondent Crown. But the position was different in relation to the sentence for maintaining. Counsel for the Crown identified a number of aggravating features, all properly conceded by the applicant’s counsel. There were multiple complainants; the conduct was repeated; the behaviour regarding the complainant in the maintaining charge could only be regarded as serious, and on the last occasion was committed in breach of a relevant bail condition.
Nonetheless, counsel for the applicant pointed out, the case lacked some of the features of other cases in which sentences of nine years or less had been imposed: there were no threats or intimidation of the complainants, no use of force or violence, no penetration of any child’s body, and the most serious feature, the procuring of sodomy, occurred on a single occasion. The notional head sentence of nine years was, he argued, on the facts too high. The sentence should be adjusted to reflect a starting point instead of eight years; although he did not contend that the parole eligibility date ought to be adjusted.
Counsel for the respondent conceded that the head sentence of nine years in this case was severe. However, it was warranted, she said, by the aggravating factors, and its severity had been ameliorated by the reduction of both the head sentence and the period before parole eligibility by 15 months to reflect the pre-sentence custody. Counsel referred the court to R v SAG,1 not as a comparable sentence, but for its helpful list of matters relevant to sentencing on maintaining charges. Those, paraphrased, are: the age of the child; the period of the relationship; whether penile rape occurred; whether there was unlawful carnal knowledge and, if so, whether it was over a prolonged period; whether there was any protective relationship between offender and victim; whether more than one victim was involved; whether there was any physical violence, emotional blackmail or manipulation of the victim; and whether there was evidence of remorse.
Both counsel referred to four cases involving sentencing for maintaining, three of which were included on the schedule relied on at first instance. In all but one the maintaining count was charged with a circumstance of aggravation rendering the offender liable to life imprisonment (the maximum penalty to which the applicant here was exposed). In , the applicant had been sentenced to nine years imprisonment on one count of maintaining a sexual relationship with a circumstance of aggravation, one count of sodomy and one count of indecent dealing. The applicant lived on a property owned by the complainant child's parents. The child was nine or 10 when the incidents commenced and they continued for three years. There were three incidents of sodomy when she was aged nine or 10, digital penetration once or twice a week over the three year period, regular performance of oral sex by the applicant on the complainant and vice versa; and numerous incidents of oral, vaginal and anal penetration. The applicant was aged between 48 and 51 at the time the offences were committed, had no previous convictions and had pleaded guilty. The court refused an extension of time for leave to appeal on the basis that, although the sentence might be towards the upper end of the range, it was not manifestly excessive. The facts of that case were, the applicant’s counsel submitted, considerably worse than those here, and it was significant that the court had described the nine year sentence as towards the upper end of the range.
Conclusions
Those cases suggest that a notional head sentence of nine years imprisonment was too high a starting point here. In BAO, Souter, TWB and H, the offending was of a much higher order, involving a sustained and relentless course of sexual assault in all four cases, and repeated and multiple acts of penetration in the first two. Here, the offending, with the single exception of the procuring of sodomy, was not of that gravity and was confined to a relatively limited number of instances. It is of some significance, too, that the respective sentences of nine and eight years imprisonment in BAO and H were described as at the upper end of the range.
But for the aggravating features of the procuring of sodomy on one occasion and the offending contrary to a bail condition, I should have said the criminality here was closer in its proportions to that in R v Dillon. (Dillon did, of course, involve much smaller children, but the sentencing judge here proceeded on the basis that the last complainant was rendered more vulnerable by Asperger’s syndrome.) It must be borne in mind, of course, that the applicant in Dillon faced a maximum sentence of 14 years imprisonment, not life.7 On the other hand, Dillon, unlike the applicant here, had a significant previous conviction.
As counsel for the respondent pointed out, the learned sentencing judge in this case had to consider the eight indecent treatment charges involving other complainants, which were unrelated to the maintaining charge. She was entitled, instead of imposing cumulative sentences, to impose a higher head sentence on the maintaining charge to reflect the overall criminality of the applicant's conduct. Such an approach was endorsed by this Court in R v Nagy.8 Nonetheless, having regard to the cases to which counsel have helpfully taken us, I am left of the view that, adjusting for the variables involved here, nine years imprisonment was too high a notional sentence in this case. Although her Honour properly wished to reflect the exacerbating factors already referred to by sentencing at the higher end of the range, that range should not have been regarded as extending beyond eight years in a case where the offending conduct was limited and, with the exception identified, generally did not involve the graver kinds of sexual offending often seen in this court.
Taking eight years as the starting point, and adjusting for the 15 months spent in custody, a proper head sentence would have been one of six years and nine months imprisonment. There is no reason, given the applicant’s co-operation by pleading guilty and his lack of previous convictions, not to fix parole eligibility after 32 months (one third of the notional eight years). The sentences imposed on the indecent treatment counts were, it is clear, too high and ought also to be varied, although that adjustment is unlikely to have any practical consequence.
[2004] QCA 286. ↩
[2004] QCA 445. ↩
[2002] QCA 516. ↩
[2003] QCA 305. ↩
[2003] QCA 392. ↩
[2001] QCA 111. ↩
The offences there were committed prior to the amendment of s 229B (Criminal Code Act 1899 (Qld)) on 1 May 2003, when the maximum penalty for maintaining simpliciter was raised to life imprisonment. ↩
[2003] QCA 175. ↩
R
EH
In R v Souter,3 the applicant pleaded guilty to two counts of maintaining a sexual relationship with a child under 16 years with a circumstance of aggravation, four counts of sodomy and nine counts of indecent treatment. The complainants were brothers aged 15 and 13. The 15 year old had learning difficulties. The boys had regularly stayed overnight in the applicant's caravan over an eight and a half month period. The applicant engaged in masturbation and anal intercourse with the boys; in respect of the 13 year old there were an estimated 40 acts of anal intercourse, one of which the applicant recorded on video. The court refused leave to appeal his sentence of eight years imprisonment, reduced from a notional sentence of nine years to allow for the applicant's guilty plea. The observation was made that given the magnitude of the offending, without the plea of guilty a sentence of 11 or 12 years might have been imposed. Again, the applicant’s counsel submitted, the conduct in Souter was far worse than that alleged against the applicant.
In R v Dillon4 the applicant pleaded guilty to four counts of maintaining a sexual relationship with children under 12. In this case there was no circumstance of aggravation. The complainants were a girl and three boys aged between four and seven years. The applicant had fondled or masturbated their private parts and procured the children to masturbate him. He had, many years earlier, been sentenced to three and a half years imprisonment for indecently dealing with a boy under 14. He pleaded guilty on an ex-officio indictment. A sentence of eight years imprisonment with a serious violent offence declaration was set aside as manifestly excessive, the court observing that the conduct in that case did not have features which put it in the most serious category of such offences. A sentence of six years imprisonment was substituted, without any serious violent offence declaration.
In R**v H,5 leave was sought to appeal a sentence of eight years imprisonment with a recommendation of parole after three years in respect of one count of maintaining a sexual relationship with a circumstance of aggravation. The aggravating circumstance was one of incestuous carnal knowledge, which was also the subject of two separate charges. The applicant, who had no prior relevant criminal history and had pleaded guilty, was the de facto husband of the complainant's mother. Over a two year period he regularly touched the complainant’s genitals and breasts and placed his erect penis against her, in conduct lasting up to 30 minutes at a time and occurring between one and several times a week. He had threatened her with the loss of her family if she told anyone. The sentence was described as at the upper end of the sentencing range, but was upheld. That was, the applicant’s counsel submitted, again a much worse case factually, given the incest counts, the relationship of trust and the threats made to the complainant.
The applicant’s counsel also referred to R v TWB,6 which had been in the schedule of cases placed before her Honour at sentence. The applicant there appealed against concurrent sentences of seven years imprisonment with a recommendation for eligibility for parole after three years. He had pleaded guilty to two counts of maintaining an unlawful sexual relationship with circumstances of aggravation, the complainants being his son and stepson who were respectively aged between five and nine and five and seven when they were molested. The misconduct consisted of the applicant’s simulating sodomy by rubbing his erect penis between the child’s buttocks, often while fondling the child’s penis, and, on some occasions, the sucking of the child’s penis. In respect of his son, the conduct occurred once every two or three months over five years; in respect of his stepson, between five and 10 times. The applicant had warned his son to keep quiet about what was happening to him and told him that if he revealed the events he would never see him again.
The applicant in TWB had some prior criminal history but no convictions for sexual offences. By way of mitigation, he had ceased offending against his son when the boy finally objected and had voluntarily desisted from the conduct against his stepson. He had co-operated by making admissions in a police interview; his admissions being the entirety of the case in respect of his stepson. He had pleaded guilty by way of ex officio indictment. It was submitted that those mitigating factors were not sufficiently reflected in eligibility for parole at a point which was close to the half-way mark of the sentence. This Court rejected that submission: it was open to the sentencing Judge to reflect the mitigating factors by a combination of moderation in the head sentence and a recommendation for earlier than usual parole. The sentences were not beyond the range of a sound sentencing discretion.
I would make the following orders:
grant leave to appeal;
set aside the sentences imposed at first instance;
substitute a sentence of six months imprisonment on count 7 on Indictment 4428/07;
substitute sentences of two years imprisonment on counts 1-6 and 8 on Indictment 4428/07;
substitute a sentence of six years and nine months imprisonment on the maintaining count on Indictment 4429/07;
fix the parole eligibility date at 20 December 2008.
MACKENZIE AJA: I agree with the reasons given by Holmes JA and with the orders she proposes.