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[2001] QCA 209
Court of Appeal (Qld)
2001-05-31
Thomas JA, Helman J, Atkinson J
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.
COURT OF APPEAL
THOMAS JA
HELMAN J
ATKINSON J
CA No 21 of 2001
THE QUEEN
v.
MARK ANTHONY FOY Respondent
AND
ATTORNEY-GENERAL OF QUEENSLAND Appellant
BRISBANE
DATE 31/05/2001
JUDGMENT
ATKINSON J: The respondent was convicted in the District Court on 22 January 2001 on his own plea of guilty on 12 counts of indecent treatment of a child under 12 and one count of indecent treatment of a child under the age of 16. Counts 1 to 4 involved events which occurred on 13 October 1999 and counts 5 to 13 involved events which occurred six days later on 19 October 1999.
Counts 1 to 4 occurred at Regents Park at Morningside where two sisters, one aged 10 and one aged 11, went to the park after school with an adult male. They went into a stormwater drain to look at graffiti and the respondent followed them. The 11 year old asked him for a smoke and he requested that she kiss him on the lips in return which she did. That formed count 1 on the indictment for which the respondent was sentenced to six months imprisonment.
Count 2 refers to events that happened after the 11 year old left the area and the respondent put his hands down the 10 year old's shorts and touched her on the vagina. The respondent was sentenced to three and a half years imprisonment on that charge. The respondent then pulled his own pants down and masturbated in front of the 10 year old. That constituted count 3 of the indictment to which the respondent was sentenced to two years imprisonment.
He then knelt down and licked the 10 year old between the legs. That offence constituted count 4 on the indictment to which the respondent was also sentenced to three and a half years imprisonment.
The second series of offences occurred at a park at Deception Bay on 19 October 1999. Seven children aged between six and twelve years were playing together in the park. Four boys went to the public toilet and the respondent turned up and went into one of the cubicles. Some of the boys were watching him through a hole in the toilet door and saw him sitting on the toilet masturbating. The boys then had a discussion about the size of their penises and they heard the respondent say, "Well, I've got a bigger one." He then opened the toilet door and masturbated in front of a six year old boy. That constituted count 5 on the indictment to which the respondent was sentenced to a term of imprisonment for two years.
The respondent then took the six year old's hand, put it on the respondent's penis and rubbed it up and down. That constituted count 6 on the indictment to which the respondent was sentenced to three years imprisonment.
Count 7 involved another boy who was seven years old. That child looked through the hole in the door and saw the respondent open the door, stand up, and masturbate in front of him. The respondent was sentenced to two years imprisonment in respect of that count.
Count 8 concerned a boy who was eight years old. He also saw the respondent open the toilet door, stand up, and masturbate in front of him. The respondent was sentenced to two years imprisonment on that count.
Count 9 involved another six year old child. He heard the respondent say, "Do you want to keep a secret?" and the child said, "No". The respondent then pulled the six year old into the toilet, grabbed his hand and put it on his penis. The respondent was sentenced to three years imprisonment in respect of that count.
Count 10 involved another child who was 10 years old. She was looking into the male toilets from the outside and saw the respondent walking around holding his penis. He was sentenced to two years imprisonment in respect of that count.
Counts 11 and 12 involved an 11 year old child. He saw the respondent open the toilet door and saw him playing with his penis. That represented count 11 on the indictment to which the respondent was sentenced to two years imprisonment. The boys then left the toilets and the six year old ran back in. The 11 year old ran in to get the six year old and saw the six year old's hands on the respondent's penis. The respondent then grabbed the 11 year old by the arms and put him on his lap. He said to him, "You can either stick it in your mouth or up your bum." The 11 year old screamed and ran from the toilets. The respondent was sentenced to three years imprisonment in respect of that count.
Count 13 involved a 12 year old boy. He went into the toilets to get the 11 year old and the six year old and saw the respondent sitting in the doorway holding his penis and wiggling it at the boys. The respondent was sentenced to two years imprisonment in respect of that count. The sentencing Judge declared that all of the terms of imprisonment should be served concurrently.
Some of the children had the presence of mind to seek help from a resident of the house opposite the park who called the police. This resident had observed suspicious behaviour from the respondent. The children returned to the park and ask the respondent to push them on the swings in order to detain him. He did so until the police arrived. All of the children made complaints to their parents. The respondent participated in an interview with the police but denied any of the offences. He was in custody on the second group of offences when charged with the offences with regard to the first incident. He declined to take part in an interview with regard to the first group of offences.
The matters proceeded by way of full hand-up committal with no cross-examination but the respondent indicated his intention to plead guilty only in the week before the cases were due for hearing.
The respondent has a serious and persistent criminal history going back as far as 1980 in Victoria. He was born on 28 July 1961. Between 1980 and 1994 in Victoria the respondent was convicted on 33 counts of burglary, 13 counts of criminal damage, 19 counts of theft, 11 counts of theft of a motor vehicle and one count of attempted theft of a motor vehicle, three counts of attempted burglary and many other offences including firearm offences, many driving offences, offences involving the lighting of fires, resisting arrest, drunkenness, unlawful assault, tampering with motor vehicles and with breach of community based orders, parole, bail and probation.
His first conviction for a sexual offence occurred on 24 September 1986 when he was convicted of wilful and obscene exposure. On 8 November 1989 he was convicted on four counts of indecent assault. One of the conditions of his release on a good behaviour bond was that he should receive treatment from Dr Crouch. In October 1993 he was convicted on four counts of indecent acts with or in the presence of a child under the age of 16 and four counts of wilful and obscene exposure in public. He was again ordered to attend psychological and sexual treatment programs.
On 29 August 1994 he was convicted on four counts of indecent acts with or in the presence of a child under the age of 16 and four counts of wilful and obscene exposure in public. As he was in breach of the community based order which had been imposed in October of the previous year that order was cancelled. He was fined in respect of those charges.
In April 1995 he was convicted in Cairns in North Queensland for wilfully doing an indecent act. In February 1997 he was convicted in the Wynnum Magistrates Court on one charge of wilful exposure. He was sentenced to four months imprisonment suspended wholly for three years. However he was convicted during the period of that suspension on 26 June 1997 on three further counts of wilful exposure. He was sentenced to four months to be served concurrently.
In November 1997 he was convicted on six charges of wilfully exposing a child under the age of 12 years to an indecent act, two charges of wilfully exposing a child under the age of 16 to an indecent act and one charge of indecent dealing with a child under 12 years and one charge of permitting himself to be indecently dealt with by a child under the age of 12 years. On the wilful exposure charges he was sentenced to a period of imprisonment of 12 months. On the indecent dealing charges he was sentenced to two years imprisonment and it was recommended he be considered for release on parole after serving seven months. He was ordered to serve the whole of the suspended term of imprisonment concurrently.
In June 1999 the respondent was convicted of wilful exposure and he was sentenced to six months imprisonment. An appeal against that sentence was allowed and the sentence was varied by substituting imprisonment for four months for the imprisonment of six months.
The pattern of offending behaviour is particularly disturbing given that the offences for which he was convicted are similar to the offences for which he was convicted in November 1997 and sentenced to two years imprisonment. The first of the offences were committed nine months after his release from prison. The earlier offences were committed in public recreational areas and involved similar sexual offences against children of a similar age to those involved in the present offences.
The parents of children who were the victims of the offences produced victim impact statements for consideration by the learned sentencing Judge which attests to the emotional suffering of the children involved. In addition a number of psychological and medical reports were tendered on behalf of the respondent. None of those reports however was prepared specifically for this set of offences. They had been prepared with regard to earlier occasions on which the respondent was sentenced and that fact should be taken into account in assessing them.
As a child the respondent had difficulties both at home and at school and his employment since leaving school after year 10 has been irregular. He has had a continuing problem with the abuse of alcohol. It appears he was sexually assaulted at about the age of 17. He described to Mr Grantham, a psychologist, a progression of disturbed sexual behaviour with a history of exposing that went back to 1984. Mr Grantham concluded that the respondent has deviant sexual preferences with a progressive development which appears to centre around him countering depressive moods through risk taking acts.
Although Mr Grantham said that the respondent was insightful about his offending and knew that obtaining adrenalin rushes through illegal acts was not a viable strategy to counter negative emotional states, it appears that he has engaged in precisely the same behaviour after his release from the imprisonment to which he was sentenced after Mr Grantham's report. While individually each of the offences may appear to be at the lower end of the scale of offending, two further factors of significance appear from these offences. The first is the number of children involved and the second is the persistence of his sexual offending behaviour against children. His criminal history in relation to offences against children has escalated and has occurred in public.
Section 9(1) of the Penalties and Sentences Act 1992 sets out the only purposes for which sentences may be imposed on an offender. They are:
To punish the offender to an extent or in a way that is just in all the circumstances; or
To provide conditions in the Court's order that the Court considers will help the offender to be rehabilitated; or
To deter the offender or other persons from committing the same or a similar offence; or
To make it clear that the community, acting through the Court, denounces the sort of conduct in which the offender was involved; or
To protect the Queensland community from the offender; or
A combination of two or more of the purposes mentioned in paragraphs (a) to (e).
Unfortunately, there seems to be little real prospect that this offender will be rehabilitated, although completion of a sex offenders' course whilst he is in custody may be of assistance. In those circumstances, it appears that punishment, public denunciation of the behaviour and protection of the community are the most important factors to be considered in a sentence of this type.
It is also important in fixing the sentence to take account of the fact that while there was no early indication of the intention to plead guilty, the pleas of guilty did avoid any distress to the children which may have been brought about by them having to give evidence at the trial, and it saved the community the cost and uncertainty of a trial.
Those factors should undoubtedly reduce the sentence that would otherwise have been imposed: see AB v The Queen (1999) 198 CLR 111 at 155 per Hayne J. The applicant submits that the proper term of imprisonment in the circumstances is a four to five year term of imprisonment. The difference is one of six to 18 months from the sentence that was imposed upon the respondent.
The applicant submits that while the learned sentencing Judge took into account all relevant matters on sentence, he did not give full weight to them. In particular, the applicant relies on the respondent's long and disturbingly worsening criminal history in relation to sex and other offences, the fact that the respondent had only recently concluded his parole period for previous similar offences and that the offences were in public places where children were playing.
However, the ground of appeal in this case was that the sentence imposed was outside the scope of the proper sentencing discretion. The appellant referred to a number of cases to assist the Court in determining what was the proper range of sentence which should have been imposed in this case, including R v Schwob CA 59 of 1996, 24 April 1996; R v Massey CA 63 of 1999, 16 June 1999; R v Marsh CA 351 of 1993, 9 November 1993; and R v Mathers CA 225 of 1995, 27 July 1995.
However, the appellant was unable to point to any case that was really similar to this case. A number of those cases involved individual offences which were more serious, but none of them showed the pattern of persistent and uncontrolled sexual offending that has been shown in this case.
Taking all of those matters into account, I agree with the submission that the maximum sentence given of three and a half years on Counts 2 and 4 was outside the proper range of sentencing discretion, considering all of the charges with which the respondent was convicted in this case.
In my view, the proper sentence which should have been imposed is a sentence of four and a half years imprisonment, and that should have been imposed on Counts 2, 4, 6, 9 and 12 on the indictment. I would otherwise not disturb the sentence, but I would recommend that the respondent be psychologically assessed while he is in custody and that he undertake treatment in a sex offenders course.
I would accordingly allow the appeal and substitute a sentence for four and a half years imprisonment on Counts 2, 4, 6, 9 and 12 on the indictment.
THOMAS JA: I agree.
HELMAN J: I agree.
THOMAS JA: The order of the Court is that the appeal is allowed and the orders which have been stated by Justice Atkinson will be substituted in respect of the counts to which she has referred.
R
Foy & A-G [2001] QCA 209
(1999) 198 CLR 111