R v G [1997] QCA 479

Court of Appeal (Qld)|1997-11-21|Before: Pherson JA, Thomas J, Dowsett J

McPHERSON JA: The applicant was convicted on pleas of guilty of two counts of maintaining an unlawful sexual relationship with a child under 16 years; seventeen counts of indecent treatment of a child, two of assault occasioning bodily harm; one of unlawful exposure of a child to an indecent act and one of child abduction. The latter offence was committed while he was on bail and in breach of the conditions of bail. In respect of all or most of these offences, it was an aggravating circumstance, to which the applicant pleaded, that the child in question was under his care at the time of the offences. The applicant was sentenced to imprisonment for 13 years, to be served concurrently, on each of the first two counts, and to lesser and concurrent periods of imprisonment for the other offences. The effective sentence, in the result, was therefore 13 years.

The circumstances of the offences are extremely serious. The applicant successfully applied to the Department of Family Services some time ago to become a foster parent. A boy named G, who was the first of the three complainants to whom reference will be made here, came under the care of the applicant at the time when that complainant was aged about 11 years. The applicant's treatment of him included masturbation, fellatio, simulated anal intercourse and ejaculation onto the complainant. According to the complainant's estimate there was some 500 such incidents, taking place at a frequency of about four to five times a week in the course of which, he said, the applicant frequently punched his head, ribs and stomach. The applicant's own estimate, it ought to be said, was that there were only 40 to 50 such instances, although in saying only 40 one must bear in mind that there should have been none at all. The sexual abuse, on any view of it, persisted over a period of some four years until the first complainant finally moved out at the age of 15 years.

What in the appeal record is said to have been conditions and economic need drove complaint G back to the applicant again, on which occasion he had the opportunity to observe the applicant's mistreatment of S, who is the second of two complainants and another child that was placed under his care by the Department. It was the first complainant G who reported the applicant's mistreatment of that boy S, which, one would think, ought to stand to the credit of complainant G.

S suffered sexual abuse from the age of 11 to 13 years. This unfortunate child, in addition to other burdens imposed on him by the applicant, is said to have a mental age of eight years coupled with some physical disabilities. S estimated that the applicant fondled his genitalia on some hundreds of occasions, also simulated anal intercourse, and ejaculated onto him on eight to 10 occasions. Defence counsel submitted that on his instructions there were many fewer than hundreds of occasions. S made some but unsuccessful attempts to resist the applicant, who it may be noted, is a man weighing about a hundred kilograms and therefore so much bigger than his victim. Not only the first complainant G, but also that complainant's girlfriend, and an elderly couple who were living in the house with the applicant, gave accounts of acts of violence visited upon the second complainant S. Some attempt was made to deny some of these claims of violence; but one can in count 17 see an offence of that kind. It involved a charge of assault occasioning bodily harm, to which the applicant pleaded guilty. The complainant S had run from the house. The applicant located him, it seems, at some shops nearby, and, in the presence and view of complainant G, punched the boy in the face and dragged him back home. The blow was struck with such a degree of force as to knock a gemstone out of a ring on the applicant's hand. S the complainant sustained a black eye and lacerations beneath his eye, and suffered pain for some three weeks afterwards. Count 20 was an instance when the applicant climbed into the boy's bed and masturbated him. When the complainant finally succeeded in pushing him out of the bed the applicant took a swing at him.

Not content with having affected these two young lives the applicant then again, it seems with the assistance of the Department, took a third foster child, David, who was 13 years old. As to that complainant the applicant struck him in the face causing a one centimetre long cut that bled.

After receiving the report from complainant G and the matter passing into the hands of police, a search was conducted by police of the applicant's premises in October 1996. On that occasion the police found among other matters empty condom packets, lubricating jelly, pornographic magazines and videos. In December 1996 after being granted bail the applicant took the second complainant from his school and took him with him away up to Bowen. Needless to say these offences had a serious impact on the two boys, and it needs no evidence to tell us that it is likely to have a permanently adverse effect on their lives.

The psychiatric report that was obtained in respect of the applicant assesses him as having limited insight and suggests that recidivism is likely. It is said that unfortunately offenders of this kind seldom abandon, or succeed in controlling, their habit.

At the hearing the Crown contended for a sentence of 15 to 20 years imprisonment. The sentencing Judge considered 15 years was appropriate, but then proceeded to reduce that term to 13 years to accommodate the applicant's plea of guilty and

co-operation with the police. Now, the maximum penalty for offences under section 229B of the Code is, or certainly was then, imprisonment for 14 years. It should be noted that the applicant committed these offences with two defenceless boys under his care. Nevertheless, in reference to the sentencing standard of 15 years adopted by His Honour, it is possible that he may have done so assuming, but incorrectly, that the maximum for the offence was life imprisonment. It would, therefore, not have been beyond the limits of a proper sentencing discretion in my view to decide that cumulative sentences should be imposed in this case. In this instance there was sexual predation on two separate individuals in the care of the applicant, which took place separately over long periods amounting in the case of the first complainant to four years. The applicant abused the trusts of both boys themselves and of one or more officers of the Department of Family Services, or so we may assume. It cannot be said that, in placing these children with the applicant, the Department emerges with any particular credit for their actions in these three cases. The evidence now before this Court must, to my mind, raise serious concerns about the wisdom of Departmental decisions to foster out young boys to single males.

A sentence of 15 years was sustained in this Court in the case of Krieger (CA 12 of 1991) in what might be considered a comparable case of a little girl, and another sentence of 20 years was sustained in a somewhat similar case of S

(CA 316 of 1993). In both, however, it is right to say that the child complainant was much younger and that penetration was involved. There fortunately were, however, only single victims involved in each of those instances. Here the applicant treated the helpless and defenceless wards under his care in a manner which, to my mind, can only be said to be reminiscent of the treatment by some owners of their slaves in bygone times. There was no one in the home to whom they could turn for help other than the applicant himself, who was supposed to be their protector but was in fact their tormentor and oppressor.

It is difficult to be sure precisely what is contended for by the applicant on this appeal as an alternative sentence to substitute for that imposed. However, I have come to the conclusion that it is possible that His Honour made an error in one or two respects in the exercise of his sentencing discretion.

The first is that he may, as I have suggested, have mistaken the maximum sentence that was available for the principal two offences in counts 1 and 2. Secondly, it is also possible he may have taken into account offences of which there were some that were not charged against the applicant and to which he of course did not plead.

This being so, it would be the proper course to set aside the sentences and re-exercise the sentencing discretion from the beginning. In doing so, however, I would allow the appeal, but only to the limited extent of reducing the principal sentences imposed from terms of imprisonment for 13 years to terms of imprisonment for 12 years. Doing so would give effect to the Judge's view of the extent of mitigation that should be allowed in respect of the applicant's plea of guilty and his co-operation, but would start it from a slightly lower level of head sentence.

The offences in this case, I must add, are among the most serious of their kind which I have had the misfortune to encounter since I became a Judge of this Court in 1982. Apart from the plea of guilty the appellant's conduct has no discernible redeeming features, and the prognosis or hope of rehabilitation on his part does not seem to be at all favourable.

The unfortunate victims are, according to their own account, in a disturbed state of mind, and it is difficult to believe that the experience they have suffered at the hands of the applicant will not last for the rest of their lives.

His Honour also made an order that, for 10 years after the applicant's release from imprisonment, he should report any change of address to the police within 48 hours of such a change. It is not contested on appeal that such an order is capable of being made under the Criminal Law Amendment Act of 1945, or indeed that an order of that kind was not justified in the circumstances.

What is challenged, however, is the duration of 10 years that was selected for the order. It is true it is a lengthy period; but the inconvenience of obeying it is, to my mind, correspondingly slight and it may in the end afford some degree of necessary protection to other potential victims of the applicant. I would therefore not interfere with that part of the order.

In the result, what I propose is that the appeal be allowed to the extent of varying the sentences imposed by reducing those sentences in respect of count 1 and count 2 from imprisonment for 13 years to imprisonment for 12 years.

In other respects I would not disturb the orders made below.

THOMAS J: With two reservations I agree with the reasons just given by Mr Justice McPherson.

Firstly, I do not consider the present matter to be one that would have justified the imposition of cumulative sentences.

The learned sentencing Judge did not advert to this as a possibility and he seems to have acted on the premise that a sentence of 15 years was within his power to impose on these particular charges. That was erroneous because the maximum sentence for the offences with which we are concerned when penetration is not alleged to have occurred is 14 years. With that in mind the applicant's offences fall within the worst category of offences of this kind and I agree that a maximum sentence would prima facie be justifiable for the present circumstances. The sentence, however, must be tempered by the fact that he pleaded guilty and co-operated with the police once the matters were investigated.

The other reservation is that I am not in a position to associate myself with the concern that has been expressed to the effect that children should not be entrusted to the care of a single male. I do not know enough about the problem to know whether to agree with the comment or not. For example, I know nothing of the availability of carers compared with the need for care and therefore make no comment about the system as it was administered at the relevant time.

Apart from that, however, I agree with what my brother has said and with the order which he proposes.

DOWSETT J: I agree with the orders proposed by Mr Justice McPherson and with His Honour's reasons. I specifically agree that this was a case in which the possibility of cumulative sentences could have been considered.

McPHERSON JA: The order of the Court will be as I have stated it.

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