R v Mirza; ex parte A-G

SUPREME COURT OF QUEENSLAND

CITATION: R v Mirza; ex parte A-G (Qld) [2008] QCA 23

PARTIES: R v MIRZA, Shakeel (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)

FILE NO/S: CA No 264 of 2007 / DC No 661 of 2007

DIVISION: Court of Appeal

PROCEEDING: Appeal against Sentence by A-G (Qld)

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 22 February 2008

DELIVERED AT: Brisbane

HEARING DATE: 4 February 2008

JUDGES: McMurdo P, Holmes JA and Fryberg J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal against sentence refused

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – where respondent pleaded guilty to attempted indecent treatment of a child under 12 years – where respondent sentenced to 12 months probation with no conviction recorded – where respondent did not actually touch the child, and desisted when the child objected – where respondent's attempt was not pre-meditated and testimonials suggest it was out of character – where respondent genuinely remorseful – where, if conviction recorded, respondent could face difficulties with continuing his medical studies, gaining employment and registration as a medical practitioner and maintaining his student visa – whether sentence manifestly inadequate – whether trial judge erred in not recording a conviction / Commission for Children and Young People and Child Guardian Act 2000 (Qld), s 102, s 199B / Medical Practitioners Registration Act 2001 (Qld), s 42, s 45(1)(c), s 45(2), s 51 / Migration Act 1958 (Cth), s 501 / Penalties and Sentences Act 1992 (Qld), s 9(6), s 12, s 90 / Gallagher (1997) 98 A Crim R 513, distinguished / R v Moffat [2003] QCA 95; CA No 439 of 2002, 11 March 2003, distinguished / R v Quick; ex parte A-G (2006) 166 A Crim R 588, considered / R v SAT [2006] QCA 70; (2006) 170 A Crim R 156, applied

COUNSEL: M J Copley for the appellant / B W Farr SC for the respondent

SOLICITORS: Director of Public Prosecutions (Queensland) for the appellant / Gilshenan and Luton Lawyers for the respondent

1. McMURDO P: The respondent, Shakeel Mirza, pleaded guilty on 5 September 2007 to one count of attempted indecent treatment of a child with the aggravating circumstance that the child was under 12 years. He was sentenced on 3 October 2007 to 12 months probation with no conviction recorded. The appellant, the Attorney-General of Queensland, appeals against that sentence contending it is manifestly inadequate.

The offence

2. In August 2005 Mr Mirza, a 25 year old medical student, was participating in a community service club's "uncles and aunties programme" aimed at supporting children under 12 at risk of falling into the social welfare cycle. To participate he had obtained a Queensland "blue card" under the Commission for Children and Young People and Child Guardian Act 2000 (Qld). The programme linked him to the complainant's younger brother, D, then aged eight. Mr Mirza became closely involved with D's family, spending two or three nights each week sleeping over at their house. The boys' mother trusted him as she would a family member and gave him permission to sleep in the boys' beds. After the community club ended the programme because of concern about the closeness of his involvement with the family, Mr Mirza continued to visit the home.

3. One evening between September and December 2005 the 11 year old complainant, S, was lying with Mr Mirza on top of his single bed watching TV. Lying on top of another single bed in the room, also watching TV, were S's younger brothers, N and D. Mr Mirza was massaging S's head. He told S that the massaging would feel better on his penis. S rejected that suggestion. Mr Mirza tried to put his hands into S's pants and feel his penis. S pushed Mr Mirza's hands away. Mr Mirza stopped his conduct.

4. The Queensland Police Service and the Department of Child Safety investigated Mr Mirza's contact with S and his brothers without any complaint having been made. S told police he did not want to say anything about Mr Mirza's conduct because he was embarrassed. He was a reluctant complainant. Mr Mirza was charged on 23 February 2006. He had no previous convictions. He pleaded not guilty at committal and initially in the District Court to this and other charges involving S. The complainant gave pre-recorded evidence at trial. After S was cross-examined Mr Mirza was re-arraigned. He pleaded guilty to the present charge and the other charges were withdrawn.

The sentencing proceeding

5. The prosecutor at sentence submitted that a sentence of 9 to 12 months imprisonment was appropriate. The impact of a conviction for this offence on Mr Mirza's medical career and the fact that he desisted after the complainant expressed reluctance could amount to special circumstances warranting wholly suspending the sentence.

6. Defence counsel at sentence made the following submissions. Mr Mirza was born in Pakistan and grew up in Brunei. He emigrated to New Zealand when he was 17 years old to further his plan of studying medicine. He was in his third year of his studies in Queensland and held an Australian student visa. He was committed to fulfilling his dream of becoming a doctor. He had undertaken a wide variety of community service work. Many references were tendered which supported the submission that the present offence was very much out of character. These references described Mr Mirza as a hard working, conscientious community-oriented young man who had learned his lesson and was regretful and remorseful for his conduct.

7. Defence counsel emphasised that the offence involved no actual improper touching. Mr Mirza committed it in a joking fashion. It was a spur of the moment act of stupidity, committed in the presence of others, and he quickly desisted. He accepted by his plea of guilty that in all the circumstances his conduct was indecent.

8. Defence counsel urged the judge to impose a period of probation or community service without recording a conviction. In support of that contention, he referred to a number of sentences imposed in the District Court (which had not been the subject of appeal to this Court) where no convictions were recorded for relatively minor sexual offences, not unlike the present. He also referred to this Court's decision in R v SAT,¹ where no conviction was recorded for a sexual offence against a minor.

9. He then set out the considerations listed in s 12 Penalties and Sentences Act 1992 (Qld) ("the Act") relevant to determining whether to record a conviction He pointed out that under s 42 Medical Practitioners Registration Act 2001 (Qld) Mr Mirza would probably have to disclose his offending prior to becoming registered, whether or not a conviction was recorded. It would then be a matter for the Medical Board of Queensland to determine his application.²

10. He explained that Mr Mirza was in Australia on a student visa. Visas may be cancelled by the relevant Minister under s 501 of the Migration Act 1958 (Cth). He was liable to have his visa cancelled if he had a "substantial criminal record", an expression under that Act which included being sentenced to a term of imprisonment of 12 months or more.

The appellant's contentions

14. Counsel for the Attorney-General, Mr Copley's, first contention is as follows. The sentence imposed was manifestly inadequate. Nothing less than a wholly suspended term of six months imprisonment should have been imposed. This proposition is supported by the sentence imposed by this Court in R v Moffat.³ In the absence of exceptional circumstances, a sexual abuser of children should ordinarily be detained in custody: R v Quick; ex parte Attorney-General.⁴That principle applied equally to the present offence of attempted indecent dealing where there had been no actual physical sexual abuse. The primary judge first determined that a conviction should not be recorded in this case and then wrongly failed to consider appropriate sentencing options which necessarily involved the recording of a conviction, namely suspended imprisonment or an intensive correction order. The really serious aspects of the present offending were the youth of the complainant and the gross abuse of Mr Mirza's position of complete trust placed in him by the complainant and his family.

15. Mr Copley's alternative contention is that, if the sentence imposed was not manifestly inadequate, the primary judge erred in failing to exercise his discretion to record a conviction under s 90 of the Act. He submits that a sexual offence committed on a young boy by a mature adult in a position of complete trust is simply too serious a matter for a conviction not to be recorded: Gallagher.⁵

The respondent's contentions

16. Mr Mirza's counsel, Mr Farr SC, responded to the appellant's first contention in this way. The serious features of the offending were the breach of trust and the age disparity. Importantly, there was no actual indecent touching of the complainant and in all other respects the offence fell at the lowest end of the scale of seriousness for offences of a sexual nature involving children. A custodial sentence was not the only sentencing option open. Rehabilitation was an important consideration. A 12 month probation order appropriately recognised the rehabilitative considerations and, given the relatively minor nature of the offence, gave due recognition to the principle of deterrence. The sentence was not manifestly inadequate.

17. As to the appellant's second contention, Mr Farr made the following points. The judicial exercise of the discretion to not record a conviction was sound in light of the many relevant mitigating factors. These included the absence of pre-meditation, any actual physical indecent contact with or evidence of significant impact on the complainant; the guilty plea; his excellent history of solid employment and voluntary community service; his promising rehabilitative prospects; and the impact that recording a conviction would have on his economic or social wellbeing and on his chances of finding future employment. The judge did not err in any way in exercising his discretion.

Conclusion

18. In sentencing Mr Mirza, s 9(6) of the Act required the court to have regard primarily to the following factors:

"(a)the effect of the offence on the child;

(b)the age of the child;

(c)the nature of the offence, including, for example, any physical harm or the threat of physical harm to the child or another;

(d)the need to protect the child, or other children, from the risk of the offender reoffending;

(e)the need to deter similar behaviour by other offenders to protect children;

(f)the prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community;

(g)the offender’s antecedents, age and character;

(h)any remorse or lack of remorse of the offender;

(i)any medical, psychiatric, prison or other relevant report relating to the offender;

(j)anything else about the safety of children under 16 the sentencing court considers relevant."

19. The complainant was 11 at the time of the offence. It is common ground that, despite the concerning aspects of the breach of trust and the complainant's young age, the offence was at the lower end of the range of seriousness of sexual offences committed on children. The respondent's actions moved from an innocent head massage and joking behaviour to criminally inappropriate conduct amounting to the offence of attempted indecent dealing. Importantly, he did not actually touch the child and desisted as soon as the child brushed his hand away. The offence did not involve any threat of physical harm. It was committed in front of others and not, as is so often the case, in secret. There is no suggestion he attempted to use his position of trust and his age advantage as an instrument of power over the boy or his brothers. No evidence was placed before the sentencing court as to the effect of the offence on the complainant. Because of the relatively fleeting and minor nature of the offending and the surrounding circumstances, there is no reason to conclude that there has been a significant detrimental impact on the boy.

20. Mr Mirza has frankly admitted this offence to the university at which he is studying for a medical degree and to the many other associates who provided the character references tendered at sentence. These testimonials support the conclusion that the offence was an error of judgment, out of character, unlikely to be repeated and one about which he was genuinely remorseful. The material before the sentencing court did not suggest there was any significant risk of re-offending.

21. The breach of trust and the young age of the complainant required the imposition of a sentence which would deter both Mr Mirza and others who may so lack judgment as to cross the boundary between inoffensive behaviour and inappropriate conduct amounting to attempted indecent dealing. He has been charged with a criminal offence punishable by up to seven years imprisonment. He has been publicly dealt with in the criminal justice system. He has had to inform his university and his associates of his conduct. The legislative framework now applicable in Queensland, to which I will refer in more detail shortly, is aimed at the protection of children. It also has the effect of imposing a significant deterrence on those who offend against children by closing off many employment opportunities.⁶The terms and conditions of the 12 month probation order to which Mr Mirza was sentenced imposed significant obligations and subjected him to the authority of his probation officer for 12 months. It was an adequate deterrent to minor offenders, like Mr Mirza, who might cross the boundaries of propriety through misjudgement. The case of Moffat relied on by Mr Copley is clearly distinguishable: Moffat's conduct involved the actual touching of the complainant girl and was a conviction after trial; the extraordinary combination of mitigating factors present in this case were absent there. A probation order has the advantage over the suspended sentence favoured by Mr Copley of offering guidance and supervision within the community. It was not a manifestly inadequate sentence.

"(a)the nature of the offence; and

(b)the offender’s character and age; and

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

(i)economic or social wellbeing; or

(ii)chances of finding employment."

23. I have already canvassed the relevant aspects of the nature of the offence. A significant consideration in this case is that there was no actual physical indecent touching of the complainant child or exposure of him to any indecent act. When the child brushed away Mr Mirza's hand, he immediately realised the wrongfulness of his act and that he had gone too far, and he desisted. This was not a case where he used his position of trust and power to suborn the will of the child. The offence was not premeditated and was committed in front of others. The observations in Gallagher relied on by Mr Copley as mandating the recording of a conviction are therefore not directly apposite. In any case McPherson JA there referred merely to "a general rule" that convictions for offences like indecent dealing should "ordinarily" be recorded.⁷Pincus JA considered it "undesirable, in general, that people convicted of sexual offences against children should be given the benefit of not having the convictions recorded."⁸ de Jersey J (as he then was) considered that:

"… a conviction for such an offence should … 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."⁹

24. This Court has previously recognised that in exceptional circumstances the recording of a conviction in sexual offences against children is not necessary: R v SAT.

25. The recording of a conviction would not necessarily require the Commissioner for Children and Young People to cancel Mr Mirza's blue card enabling him to work with children: Commission for Children and Young People and Child Guardian Act 2000 (Qld), s 119B. The Commissioner has a discretion not to cancel the card despite Mr Mirza's guilt of the present offence if satisfied the case was exceptional. In exercising that discretion, the Commissioner would be entitled to take into account whether or not the sentencing court had recorded a conviction. The learned sentencing judge was right to conclude that the recording of a conviction may have an impact on Mr Mirza's holding of a blue card and on his ability to complete the paediatric segment of his medical degree.

26. Under the Medical Practitioners Registration Act 2001 (Qld) in applying for registration Mr Mirza will have to disclose this offence as part of his criminal history, whether or not a conviction is recorded: s 42(2), s 45(1)(c), s 45(2) and Sch 3 dictionary "criminal history" and "convicted".¹⁰ It nevertheless seems likely that the Medical Board of Queensland would consider whether or not a conviction was recorded for the present offence in determining any future application from Mr Mirza for registration as a medical practitioner.

27. The recording of a conviction for this offence would not, on its own, justify the cancellation of Mr Mirza's visa under s 501 Migration Act 1958 (Cth). Even so, it would seem to be information which may be considered by the Minister in determining the character test relevant to visa cancellations under s 501.

28. It follows that the judge did not err in taking these factors into consideration. The recording of a conviction for this offence could well have an impact on Mr Mirza's economic and social wellbeing and his chances of finding employment. That, together with the circumstances of the offence and Mr Mirza's character and age, placed this matter into that rare category of cases involving a sexual offence against a child where the recording of a conviction, although certainly open, was not mandatory. The learned sentencing judge weighed the various competing relevant considerations and finally determined not to record a conviction. That conclusion was within the exercise of a sound discretion under s 12(2). In so deciding, I am conscious that the non-recording of a conviction here does not prevent the relevant authorities under the legislation to which I have referred from having full knowledge of the respondent's commission of this offence and the circumstances surrounding it.

Footnotes

1. [2006] QCA 70; (2006) 170 A Crim R 156. ↩

2. Medical Practitioners Registration Act 2001 (Qld), s 51. ↩

3. [2003] QCA 95; CA No 439 of 2002, 11 March 2003. ↩

4. [2006] QCA 477 at [5]; (2006) 166 A Crim R 588 at 589 [5]. ↩

5. (1997) 98 A Crim R 513 at 519-521. ↩

6. See Commission for Children and Young People and Child Guardian Act 2000 (Qld), s 102. ↩

7. Gallagher at 519. ↩

8. Gallagher at 521. ↩

9. Gallagher at 521. ↩

10. See also, for example, Application for General Registration – Intern, Form M1(a), Version 1.02, Medical Board of Queensland (2007) Question 20, page 4 at 12 February 2008. ↩