R v Gallagher; ex parte Attorney-General [1997] QCA 467

The complainant child's account of what had happened was that at some time after 2.00 a.m. he was wakened by the respondent calling to him. They talked for some time, in the course of which the respondent quizzed him about "wanking", and asked him if he wanted to see a video. The television was turned on, and the respondent told the complainant to come and lie on his bed. The video showed a man and a woman, who was undressed, or at least partly so, and who was engaged in sucking the man's penis while he was licking her vagina. While this was on the screen, the respondent was rubbing his own erect penis with his hand. He had taken his pyjama shorts off and he persuaded the complainant to do the same. Then he reached over with his hand and began rubbing the complainant's penis. It was at that moment that his mother entered the room, after which she and the two children left the respondent's residence.

There is no excuse for what the respondent did. He is a man, then aged 26 years, who comes from a respectable family, prominent in Gold Coast business, sporting and social circles. The respondent has worked in various occupations including estate agency, and at the time he had a business of his own. He has an alcohol problem, and had drunk a good deal on the evening in question.

When the charges against the respondent came to court they received extensive publicity in the media, in which the respondent was named, and, for that reason or perhaps others, his business collapsed. The respondent experienced great remorse. He feels the disgrace keenly and at one stage attempted to take his own life by swallowing sleeping pills and cutting his wrists. All the members of his family have been and are most supportive of him, and they and others have provided written pleas for clemency and character references on his behalf. The psychiatrist who has been counselling the respondent since the offences were committed considers that the respondent does not have the personality characteristics of a paedophile and ascribes the offending conduct to the effects of alcohol, for which the respondent is continuing to receive treatment.

In sentencing the respondent, the learned judge remarked that all sexual offences against children were serious, but that these two offences appeared to come at the lower end of the scale. Although it was not specifically mentioned in his Honour's remarks, there was no victim impact statement before the court, and in the particular circumstances it is not necessarily to be assumed that the complainant suffered any lasting adverse effects from the experience. It cannot, however, have helped him to form a proper impression of appropriate sexual behaviour among adult persons. The episode during which the video was shown is said to have lasted for only about 15 minutes before the boy's mother intervened, and it was not accompanied by "penetration" of any part of the complainant's body. On the other hand, it was a case in which the offences were committed at a time when the respondent was being trusted with the complainant. His Honour seems to have accepted that it was an instance of aberrant conduct on the part of the respondent that was induced by alcohol . While acknowledging that being "very drunk" did not excuse the offences in any way, his Honour said that it did "put them in context".

The criticism of counsel for the Attorney-General on appeal essentially is that the sentence imposed by the judge overemphasised the rehabilitative aspects of sentencing at the expense of the need for deterrence and for protection of children from sexual abuse. Reference was made to R. v. Pham (C.A. 435 of 1995), in which it was said that "other than in exceptional circumstances, those who indecently assault or otherwise deal with children should be sent to gaol", and also to R. v. Lashford (C.A. 463 of 1995). Both cases involved offences more serious than those committed here, and it remains true that the proposition stated in Pham does not, and indeed cannot, exclude the judicial discretion to refrain in appropriate cases from imposing a prison sentence even in respect of sexual offences against children.

As it is, counsel for the Attorney-General candidly acknowledged that, because the respondent had remained in the community since the offences were committed and the sentence was imposed, it would not now be appropriate to insist on a sentence which at most would probably mean only a relatively short period of detention before release on parole or probation. As an alternative, he submitted that this Court should substitute a sentence of imprisonment for perhaps 12 months and suspend it for a period of up to three years. That, however, would not differ greatly in substance or effect from the term of probation for two years already in place, which has at least the additional merit of ensuring that the respondent continues to submit to treatment for his alcohol addiction. In view of the principles governing appeals of this kind, there is, in the particular circumstances, no readily apparent justification for interfering with that part of the sentence below.

A much more contentious issue is whether convictions should have been recorded in respect of these offences. In deciding that they should not be, the learned judge was evidently influenced by statements from the Bar table that recording convictions would or might place the respondent's real estate agent's licence in jeopardy. He does not, however, appear to have been referred to s.29(1) of the Auctioneers and Agents Act 1971. Section 29(1) provides that, if a licensee under the Act is convicted of an indictable offence "that ... is against sexual morality or constitutes an assault", the licence of the convicted person "shall be deemed to be ipso facto cancelled". Section 29(2) provides that a person is taken to have been convicted of an indictable offence if summarily convicted of such an offence. By s.29(3) of the Act, s.29(2) is expressed to apply:

Those provisions are rather oddly framed, in that, by apparently confining the operation of s.29(3) to s.29(2), the legislation may have inadvertently passed over the more obvious case (of which the present is an example) of conviction on indictment for an offence against sexual morality.

On the face of it, however, s.29(1) operates to cancel a real estate agent's licence automatically on conviction and independently of whether or not the conviction is recorded. In that regard, it may be recalled that the word "conviction" is susceptible of more than one meaning: see Cobiac v. Liddy [1969] HCA 26; (1969) 119 C.L.R. 257, 271-273; but, in the sense in which it is commonly used, it refers, at least in the case of conviction on indictment, to the court's acceptance of the verdict or of the offender's plea of guilty, rather than to the verdict or the plea itself. See R. v. Jerome and McMahon [1964] Qd.R. 595, 602-603. The process of recording a conviction is something else again, and assumes that there has already been a conviction that is capable of being recorded. It is the event of conviction in that sense that activates s.29(1). The authority exercised by the learned sentencing judge in refraining from recording a conviction was s.12(1) of the Penalties and Sentences Act 1992 which confers a discretion to record or not to record a conviction. In so providing it assumes the fact of the conviction but allows for it not to be recorded. It is not in the same form as s.4(1) of the Offenders Probation and Parole Act (S.A.), which was considered in Cobiac v. Liddy [1969] HCA 26; (1969) 119 C.L.R. 257, 269, of which the first paragraph (I) expressly authorised dismissal of the information or complaint without convicting the person charged.

Section 12(3)(a) of the Penalties and Sentences Act provides that a conviction without its being recorded "is taken not to be a conviction for any purpose". Apart from that provision, it is doubtful if much would be achieved by exercising the power under s.12(1) of that Act to refrain from recording a conviction. As, however, was pointed out by Dowsett J. in R. v. Briese, ex parte Attorney-General [1997] QCA 10; [1998] 1 Qd.R. 487, an advantage of not having a conviction recorded is conferred by the Criminal Law (Rehabilitation of Offenders) Act 1986. Section 5(2) of that Act provides that a person shall not be obliged or asked to disclose, and if required or asked to do so shall not be obliged to disclose, for any purpose a conviction that is not a part of that person's criminal history, or of the criminal history of another person, or a charge made against that person or another person. Under s.12 a monetary penalty is imposed for contravening the Act. The word "charge" in this context is defined in s.3(1)(b) of that Act to include a case where, an allegation having been formally made in a court that a person has committed an offence, a conviction is not recorded by the court in respect of that allegation. Having regard to the provision in s.12(3)(a) of the Penalties and Sentences Act that an unrecorded conviction is not to be taken as a conviction "for any purpose", it may be that s.29(1) of the Auctioneers and Agents Act has ceased to have effect in that respect. Equally, however, it is arguable that, because it is a specific provision applicable only to licensees under that Act, it has survived the later enactment of s.12(3)(a) of the Penalties and Sentences Act. If the latter provision has the effect of overriding all earlier but specific provisions similar to s.29(1) of the Auctioneers and Agents Act, it would have far-reaching consequences for other legislation of that character, including for example s.5(3) of the Rehabilitation Act.

Submissions were not addressed to us on the interaction of these provisions. If s.29(1) of the Auctioneers and Agents Act has survived, there was nothing that the sentencing judge could have done here to save the respondent's real estate licence from its operation. It may, however, not be directly material at present because the respondent's former career as an estate agent has evidently been destroyed by the adverse media publicity which the charges against him received. He has, it was said, now been offered employment with a foreign mining company that operates in or through various other countries including the United States, England or Tanzania. The principals of that company are aware of these offences; but it was said that the recording of convictions would prevent the respondent from obtaining a visa for travel to those countries. It is, however, a matter of some notoriety that no visa is necessary for an Australian citizen to enter the United Kingdom, nor, as we understand it, now to enter the United States. Whether the same is true for Tanzania is less apparent. It would, however, be surprising if s.5(2) of the Rehabilitation Act of 1986 could be regarded as preventing questions from being put in Australia by representatives of foreign nations to Australian citizens intending to enter their countries, particularly when the answer to such a question is related to the time of entry to those countries rather than of departure from Australia. It may be added that the provisions of art.31 of the Vienna Convention on Diplomatic Relations scheduled to the Diplomatic Privileges and Immunities Act 1967 (Cth.), read with s.11 of the Act, confer on diplomatic agents and members of their administrative staff an immunity from criminal jurisdiction and, for the most part, from civil jurisdiction in Australia. In any event, what s.5(2) of the Rehabilitation Act does is to relieve a person from disclosing an unrecorded criminal conviction. It does not go so far as to authorise a person to misrepresent the true state of affairs by asserting that he was not convicted of an offence, when in fact he has been convicted but the conviction was not recorded.

It is therefore, to say the least, very doubtful whether not recording the respondent's convictions on this occasion would have the effect of protecting his new employment or his future career in the respects suggested. On appeal, the further submission was made that recording of the convictions was also likely to impede the respondent's career because of the provisions of s.229(3) of the Corporations Law. That provision is as follows:

"229 (3) [Convicted person - waiting period] A person who has, whether before or after the commencement of this Part been convicted:

(a) on indictment of an offence against an Australian law, or, any other law, in connection with the promotion, formation or management of a body corporate or corporation; or

(c) of any offence for a contravention of section 232, 590, 591, 592, 595, 996 or 1307, of Part 6.6, of Division 2 of Part 7.11, or of a previous law corresponding to any of those provisions; or

(d) of an offence of which the person is guilty because of subsection 1317FA(1);

shall not, within 5 years after the conviction or, if the person was sentenced to imprisonment, after release from prison, without the leave of the Court, manage a corporation."

Those provisions have only to be set out for it to be seen that they are directed solely to offences in relation to bodies corporate and corporations; to serious frauds; and to certain specified offences under the Corporations Law. The offences of indecency under the Criminal Code of which the respondent was convicted are not within any of the categories described in s.229(3).

It is therefore difficult to identify the precise basis on which it could be considered that "the conviction would result in [the respondent's] career being destroyed", if, in saying this, his Honour meant that recording a conviction would have that consequence, which is implicit in his ensuing remark that "Rehabilitation in your case is important. For that reason I've decided not to record convictions". As regards the specific matters that the judge was invited to consider, it is not sufficiently established that recording these convictions would have the effect contended for.

It does not follow that the process of recording convictions might not have some presently unidentified or unidentifiable effect in the future. It was urged that general knowledge that he has sustained such convictions would inflict on the respondent shame and degradation and impede his efforts to achieve rehabilitation. However, the fact of his having been charged and convicted of the offences is already widespread public knowledge. In addressing the judge at the sentence hearing, counsel for the respondent made the following submission:

"The business that my client came back from Darwin to start up collapsed in June of this year. Presently receivers have not been appointed so its uncertain as to what debts are owed. When my client was charged with this offence he resigned from positions in the company that was building and worked basically - his job was to market the development but due to the charges and the ensuing publicity he was unable to do so.

In June of this year one of the television channels ran an article in relation to my client and his business and my client's picture was on the news and my client basically has been in a position since that happened he has been unable to work on the Gold Coast in any ---

HIS HONOUR: Just a moment. Was his picture shown on the news in relation to these allegations, this matter?

MR KIMMINS: No. It was "alleged child molester Anthony Gallagher" and the last article right at the end of the segment on the news was along the lines of that "Mr Gallagher has not been convicted of any offence" and his face was on the television and I have seen a copy of the article myself.

So far as his life of working on the Gold Coast is concerned, it's all but over. So far as personal deterrence is concerned, he has, I would submit, suffered more so than a lot of persons because of the media attention to him.

As for his future, he has only known business basically and real estate. He has been contacted by the people he worked for in Darwin. They know about it but they are prepared to have him back to work for them. He has also been contacted by the chairman of the mining company who too heard about it through the media and he himself has offered my client a job as well.

The problem with both has been this. To work in the real estate industry he can't have a conviction. To work for the mining company whose interests are in Tanzania and London he can't travel overseas if he has a conviction. We strike a situation where we go back to what Dr Wilkie has said, Your Honour. My client was very employment orientated, was a highly successful person in business. The two areas that he could excel in to continue with the rehabilitation process really hang in the balance of what happens to him today. If a conviction is recorded against him today, business or employment as he knows it will cease because he cannot do either of those two factors."

So far as publicity is concerned, little, if any, further harm can now be done to the respondent's reputation than has already been occasioned through the media publicity which has already taken place.

It remains true that there might nevertheless perhaps be some beneficial impact on the respondent's sense of personal well-being if the convictions are not recorded. In a sense, he might be inclined to view it as an adjudication that, in the catalogue of sexual offences against children, his offences were, as the learned judge remarked, "at the lower end of the scale of seriousness". That has, however, already been said, and even the published account of the proceedings referred to the fact that the respondent had not been convicted of any offence.

Having considered the question at length, it seems to me that the proper conclusion is that, in deciding not to record convictions, the discretion of the sentencing judge miscarried in at least one respect. In accepting, as he evidently did, that the submission that the respondent's career prospects would be damaged by recording convictions, he gave weight or undue weight, to factors which, for reasons already explained, will not produce the consequences ascribed to them at the hearing. That being so, it falls to this Court to re-exercise that discretion. In doing so, regard must be had to the matters, among others, specified in s.12(2) of the Penalties and Sentences Act, which include:

(c) the impact that recording a conviction will have on the offender's

As to the nature of the offence, as a general rule convictions for offences like these under ss.210(1)(a) and 210(1)(e) of the Criminal Code ought ordinarily to be recorded. Refraining from recording convictions in such cases serves to deprive those who have care or custody of children of practically the only opportunity they have of finding out if someone has in the past committed a sexual offence or offences against a child, and so of enabling them to take reasonable precautions for the welfare of those children on occasions when such an offender is or may be brought into contact with them. Not allowing a child to sleep in the same room as the offender is an obvious precaution of that kind. Most parents and other custodians of young children would be puzzled and concerned to discover that they are not entitled to insist on knowing if someone, like a visitor or proposed visitor or employee in their home, has an unrecorded conviction for committing a sexual offence in relation to children. Section 9A of the Rehabilitation Act has introduced a list of exemptions from its provisions, which to that extent recognises the need for government and other agencies to find out about matters of that kind; but its scope is very limited and it does not appear to include ordinary members of the community in their capacity as parents.

As to the matters referred to in s.12(2)(b) and (c), the respondent in the present case has no previous convictions and, apart from these offences, he bears a good character. The considerable age difference between him and the complainant is a factor that weighs slightly in favour of recording convictions. Although the material strongly suggests that commission of the offences was the result of his intoxicated condition, it nevertheless remains surprising that even a drunken 26 year-old man would have committed offences of this nature against a 12 year old boy on an occasion like this. The impact on the respondent's economic well-being and his chances of finding employment have already been considered. His existing business was, according to what was said by counsel, damaged or destroyed by the publicity associated with his being charged and convicted of the offences rather than by recording convictions. As regards his chances of finding employment, he now appears to have succeeded in doing that. If his employment is put at risk by travelling abroad, it will not be prejudiced by refraining from recording convictions if the countries to which he travels are entitled to ask questions about and act on the convictions even if not recorded.

It remains to consider the impact on the respondent's social well-being. As to that, most of the damage has already been done by the media publicity. If the convictions are recorded they will for almost all purposes be expunged by the operation of s.6 of the Rehabilitation Act after the lapse of 10 years. By s.8 it then becomes permissible to deny having sustained the conviction in question. Apart from that, it is to my mind a question whether it is not the impact of the respondent's alcohol problem, rather than a recording of these convictions, that is detrimentally affecting his social well-being. In discussing this aspect of the matter, the psychiatrist in his report said that he was "sure that [the respondent] in a sober state would never do anything to upset or distress his friends or his parents. Waking a child up from a sound sleep and masturbating in front of him is the sort of behaviour one associates with drunkenness". Even if recording convictions for these offences might to some extent impede the process of rehabilitation in that particular respect, the matter remains one in which, after considering the relevant factors and particularly those referred to in s.12(2) , it seems to me that the community interest in having these convictions recorded prevails over the individual interest of the respondent in refraining from recording them.

It follows in my opinion that, in respect of the two offences to which the respondent pleaded guilty in the District Court at Southport on 21 August 1997, the appeal should be allowed and the order made below should be varied by ordering that convictions for those offences should be recorded.

I have had the advantage of reading the reasons of McPherson J.A.

Although I take into account, in favour of the respondent, that he has suffered severely, in the way disclosed by the record and discussed by McPherson J.A., it appears to me necessary that convictions be recorded. If that is not done, then under s. 5(2) of the Criminal Law (Rehabilitation of Offenders) Act 1986 the respondent will be legally entitled to conceal these convictions, if asked to disclose whether he has committed any offences. The result could be that an inquirer with a real need to know about offences of the present character - sexual offences against a young child - might be misled, with unfortunate consequences. I note that by the Justice Legislation (Miscellaneous Provisions) Act 1996, s. 9A of the Criminal Law (Rehabilitation of Offenders) Act 1986 has been amended so as to remove the protection of s. 5, in relation to applicants for certain positions in which they might have, among other things, responsibility for children; this is a summary of the general effect of the amendment. The amendment recognises the obvious truth that people in such positions need to be of excellent character. It is improbable, perhaps, that the respondent would ever seek to be entrusted with formal responsibility for the care of the children of others; but it seems undesirable, in general, that people convicted of sexual offences against children should be given the benefit of not having the convictions recorded. I am of opinion, with all respect to the learned primary judge, that his Honour gave too much weight to what he conceived to be the disadvantage, from the point of view of the respondent, of convictions being recorded and I agree with McPherson J.A. that it is necessary for this Court to reconsider the matter and exercise its own discretion. I would also remark that the fact that the respondent was intoxicated when he committed the offences does not appear to assist him, although the trial judge implied the contrary. Persons who have had an alcohol problem, as has the respondent, and have committed offences while intoxicated, as the respondent has done, may well be perceived, for these very reasons, to present a special risk of reoffending.

I agree with McPherson J.A. as to the orders which should be made.

I have had the advantage of reading the reasons for judgment of Mr Justice McPherson, and I agree with them.

It is not possible to characterize the respondent's conduct as other than grave. Deliberate sexual interference by an adult with a child invariably must bear that description. That being so, a conviction for such an offence should in my opinion usually be recorded. I say "usually" because one cannot properly exclude the possibility of exceptional cases. There may conceivably be rare cases where the contact is so minimal, maybe bordering on accidental - such as momentary touching on the outside of clothing, that it could be appropriate not to record a conviction. But those cases would I think be rare. In cases like this one, a conviction should in my view certainly be recorded, such that not doing so would involve a miscarriage of the discretion. I would for my part signal firmly to Courts that convictions should in such cases be recorded.