R v PGW [2002] QCA 462

SUPREME COURT OF QUEENSLAND

CITATION: R v PGW [2002] QCA 462

PARTIES: R v PGW (applicant)

FILE NO/S: CA No 184 of 2002 / DC No 1136 of 2002

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Brisbane

DELIVERED EX TEMPORE ON: 31 October 2002

DELIVERED AT: Brisbane

HEARING DATE: 31 October 2002

JUDGES: de Jersey CJ, McPherson JA, Mullins J / Separate reasons for judgment for each member of the Court, each concurring as to the orders made

ORDERS: 1.Allow the application and appeal / 2.Pursuant to s 19(1)(b) of the Penalties and Sentences Act 1992 (Qld), set aside the orders made in the District Court and order in lieu that the applicant be released upon entering into a recognisance, without surety, in the amount of $1,000 on conditions that he be of good behaviour and appear for conviction and sentence if called on at any time during the period of three years

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where applicant pleaded guilty to five counts of aggravated dealing with a child under 16 years of age – where applicant 15 years old at the time of the offence and complainant step-brother 7 to 8 years old – where complainant had suffered considerable emotional distress because of applicant's conduct / CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PURPOSE OF SENTENCE – RELEVANT PRINCIPLES – where s 107B(2)(b) of the Juvenile Justice Act requires sentencing Judge to have regard to the sentence which could have been imposed had the applicant been sentenced as a child – where applicant if sentenced as a child the emphasis would have been on rehabilitation not custody but could have been detained for up to 2 years – where case factually similar to R v CCC [2001] QCA 39 but distinguished because CCC was not completely rehabilitated in that he had substantially re-offended – where applicant had not subsequently re-offended and may be regarded as fully rehabilitated – where applicant at that time would have been unlikely to have seen effect on victim – where case unique because both the victim and offender were at the time of the offences, in law, children – where case not to be regarded as relevant to the sentencing after years of delay of adults who, as adults have preyed sexually on children / Juvenile Justice Act 1992 (Qld), s 107B, s 107B(2)(b) / Penalties and Sentences Act 1992 (Qld), s 19(1) / R v CCC [2001] QCA 39; CA No 264 of 2000, 15 February 2001

COUNSEL: P J Davis for the applicant / P D Kelly for the respondent

SOLICITORS: Russo Lawyers for the applicant / Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE: When aged 36 the applicant pleaded guilty to five counts of aggravated indecent dealing with a child under 16 years of age.

The unusual feature of this case is that at the time of committing the offences the applicant was only 15 years old and the complainant was his step-brother, aged seven to eight years. The offences involved touching of the genital area, simulated intercourse, oral intercourse and mutual masturbation.

The complainant's position before the sentencing Judge was that he had suffered considerable emotional distress and disturbance over the years, at least inferentially caused by this offending. What the Judge was told follows:

"Some years after the offending the complainant eventually told his mother and his defacto wife of these offences. In his statement the complainant indicates that in April of 1997 he spoke of trying to kill himself and also indicates that he had been in and out of hospital for the past three years. He relates that conduct to the stress that was caused by the acts committed upon him by the applicant."

Because of section 107B(2)(b) of the Juvenile Justice Act the sentencing Judge was obliged to have regard to the sentence which might have been imposed had the applicant been sentenced as a child. Although the Judge did not refer to the section in terms, she did have some regard to that matter in that she accepted the prosecutor's contention that had the applicant been dealt with as a child the Court's focus would have been on rehabilitation, not custody. In fact, the Judge sentenced the applicant to 12 months' imprisonment fully suspended for 18 months.

Her Honour was constrained by another provision within section 107B, providing that she could not order the applicant "to serve a term of imprisonment longer than the period of detention that the Court could have imposed on the offender if sentenced as a child". I take that to mean that the sentencing Judge is limited to any maximum applicable had the person been sentenced as a child - in this case, two years' detention. The sentencing Court could, in theory, therefore, have sentenced for up to two years' imprisonment.

Now, I appreciate that the explanatory notes speak of not exceeding the term that the person "would" have received if sentenced as a child. But the section uses the word "could", not "would", and I believe that is referring to the limit imposed by the applicable maximum. That approach is not, in my view, inconsistent with anything said in The Queen v. J [2001] QCA 216 or CCC [2001] QCA 39.

CCC, when 43 years old was sentenced for offences committed when he was 13 to 16 years old. The six complainants were aged between seven and 13 years at the time. CCC exerted some pressure on them - a feature not evident here. The acts involved mutual masturbation, oral sex and simulated intercourse. There was no penetration or violence.

The conduct was roughly similar to that involved in the present although there were more victims in CCC's case. He pleaded guilty and had no prior criminal history, although significantly he had some subsequent convictions for drug and assault offences. CCC was sentenced to 12 months' imprisonment suspended after three months for a period of two years.

While the sentencing Judge in that case accepted that CCC's sexual problems were behind him he was, nevertheless, influenced by the need for general deterrence and CCC's subsequent criminal history, and those were the features which led to the requirement in particular that CCC serve three months' actual imprisonment.

Counsel for the applicant, Mr Davis, has pointed to some distinction between this case and CCC's. In particular, there were in CCC six victims whereas, here, only one. CCC pleaded to 21 counts, by contrast with the present five. CCC did not fall to be sentenced as a completely rehabilitated person and, in CCC, it was accepted that he could, had he been dealt with as a child, have been detained. There is some substance to those points of contrast.

Mr Davis submitted that "the imposition of a custodial sentence, albeit suspended, upon an adult in circumstances where it was common ground that if he was sentenced as a child the sentence would have been noncustodial is contrary to the intent of section 107B". That section limits the sentencing Court as relevant to the present case in two ways. First, it constrains the Court to the maximum which would have applied if sentencing the child, here two years' imprisonment. Second, it obliges the Court to "have regard to" the sentence which might have been imposed on the child. That does not tie the Court to that sentence. Circumstances may warrant imposing a sterner penalty than would have been visited upon the child.

In CCC's case, for example, there was the subsequent offending. A contemporary approach to offending of this character stressing the need for deterrence might sometimes warrant some strengthening in the response should the person, having offended as a child, fall to be sentenced as an adult.

Unfortunately, in this case, the learned Judge was not given proper assistance. While I believe the Judge would have had in mind the approach dictated by section 107B of the Juvenile Justice Act, specific reference should have been made to it by counsel for both parties. The fact is that defence counsel before the learned Judge accepted that the course proposed by her Honour - which, in fact, she followed - was appropriate.

But it does seem to me that insufficient attention was given to what I regard as the unique aspect of the case, and that is that both actors - the offender and the victim - were, in law, children. It is a very unusual case in that it concerns the prosecution, after 20 years or so, of a person who was but an adolescent at the time of offending.

The case has no relation to the prosecution, even after many years, of adults who prey on children. This is a case where, had the applicant been sentenced as a child, he would not have been placed into custody. That was the position taken before the learned Judge and it was the correct position. By force of the Juvenile Justice Act the sentencing Court was statutorily obliged to recognise that circumstance.

The question which the sentencing Judge should have addressed was why therefore should the applicant now be sentenced to a term of custody, albeit suspended. It was accepted that the applicant has not subsequently been convicted or subsequently misconducted himself and, as it was put, that he should be taken as fully rehabilitated.

While it is true that the sentencing Judge, from her perspective, knew a matter which would not have been known had the applicant been sentenced as a child, that is the serious effect on the victim, and that is not to be overlooked or understated, the fact is that it is highly unlikely that a 15 year old boy who, as put by the sentencing Judge, was sexually experimenting with the younger victim, would reasonably have foreseen such consequences for him.

Now, it is also true that society rightly and reasonably expects punitive and deterrent responses from the Court in cases of sexual misconduct, but this case is, as I have said, unique for the circumstance that both offender and victim were, at the time, in law, children and, in development, comparatively immature.

In all these circumstances I can see no justification for the sentencing Court's having taken a stronger line when dealing with the applicant as an adult. The distinction to be drawn ultimately between this case and CCC is the important distinction that in that case rehabilitation had not been complete, in that CCC had since substantially offended.

I say again that the result of this case must not be regarded as relevant to the sentencing after years of delay of adults who, as adults, have preyed sexually on children. It is to be regarded, in my view, as unique in the respects I have indicated.

I would allow the application and appeal, set aside the orders made in the District Court and order in lieu that the applicant be released upon entering into a recognisance, without surety, in the amount of $1,000 on conditions that he be of good behaviour and appear for conviction and sentence if called on at any time during the period of three years. That order would be made, of course, pursuant to section 19 subsection 1 paragraph b of the Penalties and Sentences Act.

McPHERSON JA: The case is an especially unusual and difficult one. With that consideration in mind I agree with the approach taken by the Chief Justice and with the reasons he has given for adopting it. The application and appeal should be granted with the outcome predicated in the order now proposed.

MULLINS J: This was a difficult case, as stated by the Chief Justice, for the sentencing Judge in view of the ages of the applicant and the complainant at the time of the offending which took place over a period of months approximately 21 years ago; that rehabilitation of the applicant, at the time of sentencing, was unnecessary because of the applicant's good behaviour since the offending; and that in the intervening years, the significant effect of the offending on the complainant had become apparent. The sentencing Judge also had to take into account the need for deterrence in respect of that type of offending.

As the Chief Justice has pointed out, section 107B of the Juvenile Justice Act 1992 provides limits on the sentencing of an adult who was a child at the time of the offending. There is no doubt if the applicant had been sentenced while he was still a child the sentence would have been non-custodial. Taking into account the additional matters that were known to the sentencing Judge at the time of sentencing, I am not persuaded that a custodial sentence was within the sentencing range at the time of sentencing.

I agree with the orders proposed by the Chief Justice.

THE CHIEF JUSTICE: The orders are as I have indicated.