R v Quick ; ex parte A-G

Judgment (56 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the appellant

[2]

[1] de JERSEY CJ: The respondent, then 29 years of age, pleaded guilty in the District Court to two counts of indecent treatment of a child aged under 16 years. At the time of the offending, the complainant was aged 14 years, and the respondent was aged 27 years. The respondent was the complainant's former school teacher, in mathematics and science.

[3]

[2] The respondent left the complainant's school in circumstances where a friendly relationship had developed between the complainant and him. He subsequently sustained that friendship by telephone and internet contact, and about three months later arranged to meet again with the complainant. The respondent drove her to an isolated location near Bundaberg, where in his car he caressed and sucked her breasts, that misconduct founding the first count. The second count involved his video recording the event, without the complainant's consent, by a camera he positioned on the dashboard of the car. (He had previously taken a still photo of the complainant with her consent.)

[4]

[3] The complainant told her father of the offences, and her father referred the matter to the Crime and Misconduct Commission. Made aware of the investigation, the respondent contacted the complainant telling her that she must tell lies in support of his position, failing which he would return and harm her. A victim impact statement from the complainant confirms her persisting psychological disturbance, and anxiety lest the respondent make contact with her. The events prejudicially affected her schooling.

[5]

[4] The respondent had no prior criminal history. A report from a psychiatrist, Dr Lotz, confirmed that the respondent suffered from depression, and the devastating effect upon him of the loss of his teaching career consequent upon these events.

[6]

[5] The learned sentencing Judge acknowledged the view strongly expressed by the Court of Appeal that the sexual abuse of children should ordinarily mean detention in custody of the offender, in the absence of exceptional circumstances. See, for example, R v L; ex parte A-G [2000] QCA 123; CA No 428 of 1999, 10 April 2000; R v M; ex parte A-G [1999] QCA 442; CA No 251 of 1999, 2 November 1999; R v Pham [1996] QCA 3; CA No 435 of 1995, 6 February 1996.

[7]

[6] The circumstances His Honour considered exceptional, in determining to suspend fully the imprisonment he imposed, were substantially these: the respondent's plea of guilty to an ex officio indictment; his lack of prior criminal history; that he had voluntarily sought psychological counselling; his remorse; the lack of paedophilic ideation; that the respondent would probably not re-offend; difficulty in his enduring custody; and that in terms of gravity, the offences fell at a lower level.

[8]

[7] In cases of this character, those features are not unusual. Neither is the aggregation of them. As synonyms for "exceptional", the Macquarie Dictionary offers "unusual" and "extraordinary".

[9]

[8] Of course whether the aggregation of such features warrants the conclusion the offender should be spared imprisonment, is a matter for careful assessment. That assessment falls to be made within the supervening context of a reasonable community expectation that adults who sexually abuse minors will serve a term of actual imprisonment. Sentencing courts should be astute to acknowledge that expectation. It is an expectation which, I believe, has strengthened over recent years, as the prevalence of this species of crime, and its devastating effects on victims, have become more apparent.

[10]

[9] Notwithstanding the first offence did not involve actual penetration of the complainant's body, it was grossly invasive and inappropriate offending because of these respects: the 13 year age difference between the participants; the respondent's exploitation of his relationship of trust with the child, in his capacity as her former teacher; the respondent's deliberation in setting up the encounter, plainly for his exploitative purpose; and the respondent's threat to harm the complainant should she not subsequently support his position. Further, and importantly, on the material before the Judge, the complainant remains traumatised.

[11]

[10] Additionally, there was the respondent's filming of the incident, the misconduct involved in count two, which really compounded the significance of the physical abuse of the complainant, filming obviously intended to fuel subsequent self-gratification on his part.

[12]

[11] The learned Judge sentenced the respondent, on the first count, to 18 months imprisonment, wholly suspended for two years; and on the second count, to a 12 month intensive correction order, under which he has continued to receive treatment from Dr Lotz.

[13]

[12] This is an appeal by the Attorney-General, on the ground of manifest inadequacy. The Attorney contends the Judge erred in principle in not requiring the respondent to serve actual imprisonment.

[14]

[13] I respectfully consider the sentencing Judge dwelt unduly on the effect of these events on the respondent, and insufficiently on the effect on the complainant; that he impermissibly apparently regarded, as relevant, a contention that the complainant exhibited "some level of consent" to the offending conduct; and that he did not give sufficient weight to the respondent's threat to harm the complainant. Further, the remorse experienced by the respondent seems more directed to his own plight, than an expression of genuine contrition for the damage done to the complainant. Also, he appears to lack insight into the true gravity of his offending, as may be gathered from this passage in the report of Dr Lotz:

[15]

"He stated that at the time when he was a teacher i.e. the time of the incidences, he was teacher in an isolated area, and he stated that the young girl complainant had initiated contact with him. He stated that due to his relative vulnerable state as a result of his isolation, he allowed the flirtation to evolve, and was ultimately seduced by the attentions of the young lady.

Mr Quick stated that he is [in] no way making excuses for his behaviour, and realises as the responsible adult he should not have permitted this infatuation to compromise his professional standing." (emphasis added)

[16]

[14] It may be unlikely the respondent would re-offend, but the primary considerations in sentencing for this sort of offending, apparently rife, are general deterrence and, in plain terms, community denunciation. The circumstances relied on by the sentencing Judge to put the case into the exceptional category were not in my view sufficiently unusual to warrant the respondent's avoiding incarceration, whereas the gross breach of the trust arising from his being the complainant's former teacher, taken with the substantial age disparity and the deliberation attending his misconduct and its aftermath, strongly supported his being imprisoned, to the point of requiring it.

[17]

[15] Taking a moderate approach consistently with the disposition of an Attorney's appeal, the respondent should be required to serve 3 months' actual custody. As to the appropriateness of requiring him now to serve a term of that order, reference may be made to R v Sittczenko; ex parte Cth DPP [2005] QCA 461; CA No 221 of 2005, 9 December 2005, para 28.

[18]

2. set aside the intensive correction order imposed in respect of count two;

[19]

3. set aside the order made in respect of count one, and order in lieu, in respect of each of counts one and two, that the respondent be imprisoned (concurrently) for 18 months, suspended after three months for an operational period of two years;

[20]

4. that a bench warrant issue for the arrest of the respondent, to lie in the Registry for seven days prior to any necessary execution.

[21]

[17] HOLMES JA: I have read the reasons for judgment of the Chief Justice, but do not, with respect, agree with his conclusion that the Attorney-General's appeal should be allowed.

[22]

[18] Counsel for the Attorney-General sought to demonstrate a number of sentencing errors. Unfortunately, the submissions made seemed, in a number of instances, to misapprehend what the sentencing judge had said. But to begin with, counsel contended that the learned sentencing judge identified, but did not apply, what counsel described as "an important principle": that in the usual course and in the absence of exceptional circumstances a sentence involving actual custody ought to be imposed in response to sexual offences committed against children.

[23]

[19] I think it may be going too far to describe the reality that ordinarily such offences are so inherently serious as to warrant a prison sentence as a sentencing principle; and even the more limited proposition I have suggested has generally been enunciated in respect of offences involving children under the age of 12. Indeed none of the cases cited by the Attorney to support the alleged principle involved any child over the age of 11 years. That is not to say that actual imprisonment is not the probable outcome for offences involving teenagers also; but there is no absolute rule, and the strength of the expectation that actual time in custody will be imposed must vary according to the circumstances.

[24]

[20] But in support of his contention, counsel said that the judge had not properly assessed the mitigating circumstances against the aggravating circumstances. As to the latter, his Honour plainly enough sentenced on the basis of what was contained in the statement of facts tendered by the Crown: that the respondent had, on 26 September 2004, committed the two offences alleged, the nature of which was certainly aggravated by the request to the complainant child to lie, and the threat to hurt her if she did not. But as to the mitigating circumstances, it is said, the learned sentencing judge regarded as exceptional a number of circumstances - the respondent's plea of guilty, his voluntary seeking of psychological counselling, his remorse, his psychiatric problems, his self-punishment in his retreat from society, his lack of paedophilic tendency, the unlikelihood of his re-offending, his public shaming, the particular difficulties he would face in a custodial sentence, and that the offences were, in physical terms, at the lower end of the spectrum of offending. Those circumstances were, the appellant submits, the "very ones" which were said by this Court in R v L; ex parte A-G [1] not to be exceptional.

[25]

[21] That submission is inaccurate; most of those circumstances were not raised in that case, and indeed the seeking of counselling was said to be exceptional. More importantly, the submission seems to miss altogether the point of R v L; ex parte A-G; which is that it is unnecessary to embark on a search for individual "exceptional circumstances" when in a given case a sufficient aggregation of mitigating circumstances, none of which is remarkable per se, may warrant a non-custodial sentence.

[26]

[22] The appellant contended that the learned sentencing judge overlooked the importance of deterrence because he did not refer to it. It does not, of course, follow that because a judge does not articulate a well-established sentencing principle he has overlooked it. That submission of itself is unconvincing. More concerningly, though, a number of points said to support the submission is made about the judge's approach. They do not seem to me entirely logical, but more importantly they seem not to understand what the learned sentencing judge actually said. He is said, in the appellant's written submissions, to have concentrated on what "he described as a 'balancing exercise' between the interests of the child ... and ... the interests of the respondent". When one looks at the part of the transcript where he is supposed to give that description, he is in fact speaking of balancing what he calls the "significant breach of trust ... with respect to a vulnerable young girl" against the exceptional circumstances which went in mitigation. There is nothing remarkable in the notion of considering aggravating circumstances on the one hand, and mitigating circumstances on the other, in arriving at a sentence.

[27]

[23] It is then asserted that the learned sentencing judge regarded the complainant's youth as "an advantage" and therefore as a mitigating factor in favour of the respondent. But when one goes to the passage relied on, one finds that the reference to the advantage of youth comes in the learned sentencing judge's expression of hope that the complainant will be able to recover and put her life back on track, and in that context having the advantage of youth.

[28]

[24] It is said that the learned sentencing judge took into account that the offences were committed against the complainant with some level of consent on her part. One finds in the same passage where the judge expresses concern for the complainant's recovery a reference to what she has been through, "albeit with some level of consent on her part". The reference to "some level of consent" seems to me an accurate reflection of what occurred. That state of affairs does not provide any excuse to the respondent; but the learned sentencing judge did not treat it as if it did. Specifically, he did not do what counsel for the Attorney-General contends, that is, use it as a positive factor in mitigation.

[29]

[25] In a similar vein, it is said that the learned judge improperly minimised the impact of the offences on the child and failed to appreciate the gravity of the offences. Nothing in the sentencing remarks supports either complaint and, unfortunately, what his Honour actually said is again misapprehended in the written submissions. He did not, as is suggested, give "over-riding weight" to the damage to the respondent, nor did he say that he considered the threat to the complainant to be "outweighed" by his co-operation with the Crime and Misconduct Commission.

[30]

[26] An examination of the transcript shows that the learned sentencing judge referred repeatedly to the effects of the offences on the complainant in terms which do not suggest that he failed to recognise their seriousness. And it is apparent that his Honour fully appreciated the significance of the respondent's role and position of trust as a teacher. Indeed, he emphasised at some length the unacceptability of what occurred given the age difference and the respondent's position as teacher, and referred specifically to the respondent's "significant breach of trust with respect to a vulnerable young girl".

[31]

[27] A further complaint is that the judge over-estimated the level of true remorse. Reliance is placed on the passage in the report of the psychiatrist Dr Lotz which the Chief Justice has set out. Counsel refers to this as the respondent's showing no regret or appreciation of the effect of his actions, beyond acceptance of blame for not correcting the complainant's wrong-doing at the expense of his own professional standing. The submission rather suggests that the learned sentencing judge was not entitled to give weight to the respondent's own direct statement of remorse and acceptance of blame which was before the court, nor to his own observation of the respondent. In fact, I think one has to be wary of too ready acceptance of any after the fact statement of remorse, but more particularly I think it is dangerous to place too much weight on the psychiatrist's paraphrase, which may simply reflect a rather clumsy mode of expressing what was said to him.

[32]

[28] I do not, as may be seen, consider that any specific error has been shown in the learned sentencing judge's approach. But, more generally, it is submitted that the sentence was out of range with other comparative cases. All of those cases referred to by counsel for the Attorney, as I have observed, involved much younger children and the offending in each case involved some form of genital handling. This case, I think is an unusual one, which on its facts does not readily lend itself to comparison.

[33]

[29] So far as it may be thought necessary that there be community denunciation of the behaviour, I should have thought that the imposition of a conviction and of two prison sentences, one suspended and one to be served by intensive correction order, the requirement of registration on the child protection register[2] and the ending of a teaching career, or indeed any career in working with children, amounted to very pronounced denunciation. Similarly, those matters in combination in my view are likely to have as profound a deterrent impact as most young men in the teaching profession would require.

[34]

[30] It seems to me that it would be unfortunate if the sentencing discretion of a judge at first instance were to be so curtailed in a case of a first time offender with compelling personal circumstances that no other option than imprisonment were to be regarded as available. In this case there was a number of such circumstances, particularly those involving the respondent's psychiatric state before and after the offences. It may be a fine question as to whether a combination of mitigating circumstances does or does not warrant a non-custodial sentence. I do not think that such an unequivocal answer can be given here as to justify allowing the Attorney-General's appeal.

[35]

[32] CHESTERMAN J: The facts and circumstances relevant to this appeal are set out in the judgments of the Chief Justice and of Holmes JA which I have had the advantage of reading in draft.

[36]

[33] The judgment appealed from is a discretionary one, and before an appeal can succeed an error of the kind described in House v The King (1936) 55 CLR 499 at 504-5 must be apparent. The reasons for judgment of the Chief Justice, at para 13, identify errors of the relevant kind made by the sentencing judge. I respectfully agree with what the Chief Justice has written, but would add that this is really a case in which the error is of the third kind described in House. The sentences imposed, in the circumstances giving rise to the exercise of the sentencing discretion, are 'unreasonable or plainly unjust' so giving rise to the inference that the discretion has not been properly exercised.

[37]

[34] This Court pointed out in R v Pham [1996] QCA 3:

[38]

'... offenders are often mature citizens who have otherwise led blameless lives whose disgraceful conduct is inexplicable. However, this Court has clearly indicated that, other than in exceptional circumstances, those who indecently assault or otherwise deal with children should be sent to jail.'

[39]

The Court did not, of course, attempt any explanation of what might amount to an 'exceptional case'. The statement of principle in Pham has been uniformly applied, as it should have been, by courts called upon to sentence sexual offenders of the kind described in the judgment. To qualify as 'exceptional' the circumstances of the offender or of the offence must be properly identifiable as truly out of the ordinary, or extraordinary. The judgment in Pham which has been repeatedly endorsed, is to the effect that those who commit sexual offences against children will be imprisoned unless there are exceptional circumstances. The judgment is not an invitation to sentencing judges to search for circumstances which might possibly be regarded exceptional and thus circumvent the application of the principle.

[40]

[35] The considerations identified by the sentencing judge as, in the aggregate, making this an exceptional case were:

[41]

(a) the respondent pleaded guilty to an ex officio indictment;

(b) he had no prior criminal history;

(c) he voluntarily sought psychological assistance and counselling;

(d) he has been 'crippled psychologically by his own remorse which is significant and ongoing';

(e) the respondent's underlying psychiatric condition is chronic and long-standing;

(f) the respondent's expressions of remorse and guilt;

(g) he is not a paedophile;

(h) his treating psychiatrist thinks it unlikely he will re-offend;

(i) his treating psychiatrist does not believe the respondent constitutes a risk to the community;

(j) the respondent is not a sociopath nor a psychopath;

(k) the respondent's depression would make it difficult for him to cope with imprisonment;

(l) the offence was towards the less serious end of the range of sexual offences;

(m) it did not involve penetration;

(n) the offence occurred once only;

(o) the respondent has been publicly shamed;

(p) there was a two year delay in bringing the matter to court; and

(q) '[t]he respondent has already punished himself more severely than any sentence the court could impose'.

[42]

[36] Much of this recital is repetitious. When properly condensed to their essential elements the circumstances come to these:

[43]

(a) the respondent pleaded guilty to an ex officio indictment;

(b) he had no prior criminal history;

(c) he has become depressed and requires psychiatric treatment for depression which will diminish his capacity to adjust to custody;

(d) he is remorseful;

(e) he is unlikely to re-offend;

(f) he has suffered public embarrassment and humiliation by reason of being charged and convicted;

(g) he suffered anxiety for the two years between investigation and conviction; and

(h) the offences were not the most serious examples of their kind.

[44]

[37] Factors (a), (b), (d) and (e) are circumstances of mitigation. Some or all of them appear in most, if not all, cases of sexual offences against children. They are not exceptional. The other factors, (c), (f) and (g), are usual consequences which commonly flow from the discovery and prosecution of sexual offences. Again there is nothing exceptional about them.

[45]

[38] The last factor, (h), is a description of the nature of the actual offence which, it may be accepted, was not of the most serious kind. But that factor is taken into account in the level of penalty imposed, which reflects the seriousness of the offence, as well, of course, as the other circumstances. There is nothing exceptional about the fact that the offences did not involve penetration, though that is very common.

[46]

[39] What makes this case relatively serious was the great discrepancy in age between the respondent and his victim and his position of influence over her which came from the fact that he was her teacher. There was, as well, the element of premeditation and the deceitful recording of the assault for his later gratification. The circumstances of the offence were, in accordance with established principle, such as to command a term of actual imprisonment. The circumstances personal to the respondent, which I have described, while being more or less powerful points of mitigation, are not exceptional, neither by themselves nor in combination.

[47]

[40] It is true that a court of criminal appeal entertaining an appeal against sentence by the Crown should allow the appeal only when an error in the sentence is demonstrated clearly and that the court should exercise restraint in allowing the appeal. These views were restated by Kirby J in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 341. This aspect of the judgment attracted the support of the other members of the court, Gleeson CJ, Hayne, Gaudron and Gummow JJ. Nevertheless Kirby J referred with evident approval to the judgment of McHugh J in Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 306. His Honour said:

[48]

'The jurisdiction to hear a Crown appeal against sentence is conferred on a court of criminal appeal so that that court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes.'

[49]

[41] These remarks are apposite to the present appeal. I would add, with respect, that inadequate sentences also give rise to a sense of injustice in those offenders who have been punished justly for their offences and were sent to jail by courts which did not shrink from their duty.

[50]

[42] In this case, and in cases like it, general deterrence is of particular importance. The sentencing judge here may well have had regard to the need for deterrence but the sentence imposed reveals that his Honour cannot have given it sufficient weight.

[51]

[43] I am conscious of the point made by Holmes JA that the victim here, at 14, was older than the victims in the comparable cases to which we were referred. I am also conscious of Kirby J's warning (202 CLR at 341) that when a Crown appeal against sentence succeeds:

[52]

'... it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences'.

[53]

In my opinion the sentences proposed by the Chief Justice meet both considerations.

[54]

[44] I agree with the Chief Justice that the appeal should be allowed and with the orders proposed by his Honour.

[55]

[1] [2000] QCA 123

[56]

[2] Under the Child Protection (Offender Reporting) Act 2004, the respondent must provide his personal details for inclusion in the child protection register, keep them up to date, report them annually and report travel plans, for a period of 8 years.

(2000) 202 CLR 321

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Judgment (56 paragraphs)

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