R v Porter; ex parte A-G

Court of Appeal (Qld)|2009-11-17|Before: Keane and Holmes JJA and McMeekin J, Separate, reasons for judgment of each member of the Court, each concurring as to the, order made

[1] KEANE JA: I have had the advantage of reading in draft the reasons for judgment prepared by McMeekin J. I agree with those reasons and with the order proposed by his Honour.

[2] HOLMES JA: I agree with the reasons of McMeekin J and the order he proposes.

[3] McMEEKIN J: On 13 August 2009 the respondent pleaded guilty to three counts of unlawfully exposing the complainant to an indecent act between 30 July 2007 and 3 October 2008, two counts of breaching a condition of bail on 4 December 2008, and one count of possessing the dangerous drug cannabis sativa on 3 October 2008. On the same date the respondent was sentenced:

(a) in relation to the indecent treatment offences to 2 years imprisonment suspended after he had served 248 days (the period of pre-sentence custody) with a three year operational period;

(b) in respect of each breach of bail a concurrent term of three months imprisonment; and

[4] The learned sentencing judge declared 248 days of pre-sentence custody as time served under the sentences he imposed. He ordered that the respondent have no contact with the complainant for a period of two years pursuant to s 43B of the Penalties and Sentences Act 1992.

[5] The Attorney-General seeks to appeal against the sentences imposed on the ground that they are manifestly inadequate by reason of the following:

(a) they fail to reflect adequately the gravity of the offences generally and in this case in particular;

(b) they fail to take sufficiently into account the aspect of general deterrence; and

[6] The complainant was aged between six and seven years at the time of the offences. She was in Grade Two. The respondent was her teacher. Her parents were friends with the respondent, the friendship having begun in mid 2007. Because of that friendship the respondent would on occasion sleep over at the complainant's family home on the lounge room floor. On occasions the complainant and her family slept over at the respondent's house.

[7] The offending conduct occurred on three separate occasions. On the first occasion, at the respondent's home, the respondent masturbated in front of the complainant to the point of ejaculation. He invited the complainant to place her mouth over his penis. She did not do that.

[8] The second offence occurred at the complainant's house. The complainant got into the swag in which the respondent was sleeping overnight and the respondent showed the complainant his penis.

[9] The third incident occurred at the respondent's home and again he masturbated in front of the complainant to the point of ejaculation.

[10] After his arrest the respondent was released on bail subject to conditions which conditions included that he have no contact with the complainant child, or with any child under the age of 14 years unless the child's parent was present. Following the reporting of these offences the complainant child was moved to a new school. On 4 December 2008 the respondent went to that school and, during a morning tea play period, called the complainant and a young friend over to the gate and asked the complainant how she was going and how school was. This was the conduct the subject of the two counts of breaching bail.

[11] On 3 October 2008 police conducted a search of the respondent's home following the reporting of the complaints by the complainant's parents. The police discovered 5.4 grams of cannabis in his house, hence the count for the possession of cannabis.

[12] On 3 October 2008 the police taped a telephone call between the complainant's mother and the respondent. The respondent denied any wrong doing with the complainant.

[13] The respondent declined to be interviewed by the police.

[14] There was a committal hearing. The prosecutor informed the learned sentencing judge that there was cross-examination of a large number of witnesses including a number of school teachers, the cross-examination in each case being "very brief". The pleas to the counts on the indictment now relevant were indicated in early August 2009, on the morning of a s 590AA hearing, the purpose of the hearing being to seek the exclusion of certain evidence.

[15] As the respondent's pleas of guilty were to the lesser charges on the indictment, and as the Crown did not proceed further with the more serious charges, the learned sentencing judge treated the plea as a timely one.

[16] The respondent was born on 19 October 1970. Hence he was 36 years of age at the time of the indecent treatment offences and 38 years of age at the time of sentence.

[17] The respondent had a criminal history which was somewhat dated at the time of his sentence and not relevant to the indecent treatment charges. His prior convictions related to the production and possession of dangerous drugs, presumably cannabis and possession of things used in connection with smoking dangerous drugs. The convictions occurred in March 1993 and January 1995.

[18] When aged 23 years the respondent was involved in a motor vehicle accident which apparently resulted in his suffering significant and serious injury. He was hospitalised for some two and a half months. The evidence placed before the learned sentencing judge suggested that he had suffered a closed head injury in that accident. The respondent's mother reported to a psychologist, who in turn reported to the court, that she observed changes in the respondent's behaviour subsequent to the motor vehicle accident including he having difficulty in forming relationships with adults, particularly females.

[19] Following two attendances on the respondent the investigating psychologist, Dr Ian Coyle, concluded: "On clinical grounds, his medical history and having regard to the circumstances of the offences that Mr Porter intends to plead guilty to I am very strongly of the view that he exhibits cortical disinhibition which would be consistent with organic brain damage subsequent to the motor vehicle accident he was involved in."

[20] After administering certain tests to the respondent and discussion of some of the literature in the field Dr Coyle advised that he had formed the opinion that it was highly unlikely that the respondent would offend again and "the effects of a further custodial sentence on Mr Porter will be profound, inimical to his re-integration into society and of no import as far as any putative recidivism is concerned."

[21] The respondent is a single man with no dependants. He qualified as a school teacher in 1995. His counsel informed the learned sentencing Judge that he had taught "in several schools from the beginning of 2006 until October 2008". As I have indicated at the time of the offending conduct he was a primary school teacher.

[22] The respondent's counsel informed the court that breach of the bail conditions was an innocent one as at the time he was unaware that the complainant had moved to a new school. He was in the vicinity of the primary school for the purpose of seeing a psychologist from whom he was obtaining counselling in relation to depression. He alleged that he did not initiate any discussion but that the complainant ran up to the fence where he was. He claims he did not engage in any lengthy conversation but informed her that he could not talk to her and that he would see her later. It is not clear what view the learned sentencing judge took of this. His sentencing remarks include:

"You breached your bail conditions by an attendance on a school to which the complainant had moved. You in fact spoke to the child and it breached two conditions of your bail. One, that you have no contact with her; and the second, that you have no contact with children under a certain age without their parents being present. Perhaps it was a coincidence that you had attended that school for other reasons but it clearly has had a worrying impact on the complainant's family and in my view constitutes a serious breach of your bail."

[23] At sentence the Crown sought that a head sentence of two years be imposed and submitted that it was appropriate that the sentence be suspended effective immediately given the time already served. That was the sentence that the learned sentencing judge in fact imposed.

[24] Whilst the sentence imposed was in accord with the submission made by the crown prosecutor below it is evident that that submission neither bound the sentencing judge[1] nor constrains this court.[2] That does not mean that taking such a course should not be seen as an exceptional course and one not to be lightly embarked upon, or to be encouraged.[3]

[25] The question on this appeal is whether in the exercise of its unfettered discretion this court thinks it necessary to intervene in order to impose such sentence as seems proper to this court.[4] The Attorney-General has no need to demonstrate error on the part of the primary judge. The Attorney-General contends for a three year head sentence as appropriate and seeks that the respondent be required to serve 12 months of that with a parole eligibility date set.

[26] The Attorney's submissions concentrated on the decision of this court in R v Quick; ex parte Attorney-General.[5] Counsel argued that the decision below was not in general accord with the decision there. The submission appears to take as its starting point the assumption that Quick sets the benchmark for cases of this type. It does not. Apart from any other consideration it was a decision on an Attorney's appeal that was acknowledged to be at the lower end of the available range. More cogently the facts are very different between the two cases making comparison difficult.

[27] Quick was a 29 year old school teacher who pleaded guilty to two counts of indecently treating a child aged 14 who had been his former pupil. His offending conduct involved taking the child to an isolated place where he parked his vehicle, sucked her breasts and secretly video taped his behaviour. Upon discovering that he was under investigation he tried to persuade her to falsely deny that the events had occurred. He was initially sentenced to 18 months imprisonment wholly suspended but this court intervened and required that Quick serve 3 months of actual custody. It is evident that the majority considered that this was a "moderate approach" and at the lower end of the range of available sentences.

[28] The appellant emphasised that the facts here involve a degree of criminality of a considerably worse kind than the facts under consideration in Quick. Whilst that may be conceded - the age of the child, the repetitive nature of the conduct, the position of trust of the offender, and the type of conduct involved are all worse features - the sentence imposed here was far more significant than that imposed in Quick, requiring as it did that over 8 months be served in actual custody before the suspension took effect, nearly three times the period required in Quick. As well there are aspects of Quick that were disturbing and not present here - taking the child to an isolated place where she would feel even more vulnerable and isolated, and threatening to cause her harm if she did not lie to protect him from prosecution, were serious aspects of the case.

[29] Comparison with other decisions of this court suggests that the sentence imposed was not out of the appropriate range, nor does it seem to me necessary in the interests of justice that a new and higher range be set.

[30] Counsel for the Attorney-General drew our attention to two decisions of this court which he conceded were against his submissions. In R v NH[6] the applicant was sentenced in respect of three counts of touching the complainant child, under her clothes, on her vulval area, and on a fourth occasion of digitally penetrating her. The complainant was 8 years old at the time of the offending conduct. The applicant was a family friend and in a position of trust. The offending conduct occurred on three separate days. The child was vulnerable, her father then being in prison and her mother dependant on the help of others. The applicant was employed as a teacher. He was said to be of previously good character and had an exemplary working history when sentenced aged 51 years. The court imposed a sentence of two and a half years imprisonment. The conduct in question there was plainly more serious than here and significantly so.

[31] R v Craig; ex parte Attorney-General[7] concerned a 43 year old school principal facing four counts - two of permitting himself to be indecently dealt with by a child, one of indecently dealing with a child, and one of exposing a child to an indecent act. The child was aged 11 years at the time and in Grade 7 at the respondent's school. The offending conduct included the respondent masturbating to ejaculation in the child's presence, touching the child's naked breasts, and having her touch his penis. A sentence of 18 months imprisonment with suspension after four months was said to be "entirely appropriate".

[32] The sentence contended for here by the Attorney, three years with 12 months to be served, was imposed by this court in R v SAH.[8] The case involved a conviction on a plea of guilty to one count of rape, the applicant there having inserted a finger or fingers into the anus of a three year old boy. He was in a position of trust he being the partner of the boy's mother and she being hospitalised at the time. The criminal conduct there was of far greater gravity than here.

[33] No case was cited to the court involving a sentence greater than two years for conduct of the type in question here. A review of three cases carried out in R v SAH suggested that cases involving digital penetration, which this case does not, attracted sentences from 12 months to three and a half years imprisonment, before the legislative change which made such conduct rape. Sentences at the higher end of the range involved digital penetration in conjunction with other more serious or more numerous instances of sexual abuse. That again tends to confirm the appropriateness of the approach taken here by the sentencing judge.

[34] The important factors here are personal and general deterrence and community denunciation of the respondent's conduct[9] which involved, as so many of these cases do, a gross breach of trust in respect of a young and vulnerable child.

[35] As to personal deterrence the sentence proceeded on the basis that the respondent was unlikely to re-offend, as the psychologist had opined. In my view the imposition of a two year head sentence and the requirement to serve eight months imprisonment prior to suspension, bearing in mind the imposition of an operational period of three years, together with the inevitable loss of the respondent's teaching career, sufficiently serves to denounce the respondent's conduct and provides, as far as sentences can, a deterrence to others.

[36] Nor should sight be lost of circumstances personal to the respondent and relevant to the sentencing process - the impact of the head injury on him, the acceptance by him of the inappropriateness of his conduct, his acceptance of an ongoing need for investigations into the impact of the head injury on him, and the uncontested opinion of the psychologist that further imprisonment would have a "profound" effect on the respondent and be "inimical to his re-integration into society".

[37] While the remaining counts involved conduct that deserved condemnation and, in respect of the breaches of bail, condign punishment, that is adequately reflected in the sentences imposed. In my view the sentencing judge has carefully balanced out the competing factors and arrived at an appropriate sentence.

[1] R v Walsh [2008] QCA 391.

[2] R v KU & Ors; ex parte Attorney-General (Qld) [2008] QCA 154.

[4] R v Lacey [2009] QCA 274.

[9] R v Quick [2006] QCA 477; (2006) 166 A Crim R 588 at [14] per Chief Justice.

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