R v SAT [2006] QCA 70

Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: The applicant pleaded guilty on 10 November 2005 to indecently dealing with a child under 16 years. A conviction was recorded and he was placed on probation for a period of 12 months. On this application for leave to appeal against sentence the only issue is whether or not a conviction ought to have been recorded.

There were a number of unusual features about this case. The offence was committed on 28 November 2001. It was made known to members of the families of both the complainant and the applicant the following day. However, no complaint was made to police until more than three years later when the complainant girl turned 18 years.

At the time of the offence, the applicant was aged 17 having been born on 16 August 1984. He was therefore 21 years of age at the time of sentence. At the material time, the complainant was aged 15 and she and the applicant had been close friends for at least four years prior to the incident. Their respective families had also enjoyed a close relationship over a lengthy period of time. The applicant's father was a pastor in the Baptist Church and the complainant and her family were also members of that church. They all lived in Stanthorpe.

The incident in question arose after the applicant, the complainant, and other family members had attended a party in Brisbane for the complainant's oldest brother who had turned 21. The arrangement agreed to by both families was that on the return to Stanthorpe after midnight the applicant would sleep on a mattress in the lounge room of the complainant's family's home. The complainant went to bed in her bedroom and was sleeping lying on her stomach. The applicant was concerned about a conversation he had had with the applicant earlier that evening. He thought something he had said to her required further explanation and wanted to put the matter right. In consequence he went into the bedroom and tried to wake the complainant so that he could speak to her. He first put his hand on her leg and when she did not wake up he put his hand down under her pyjama pants on her backside but above her underwear. The complainant said she was awoken by a hand down her pants rubbing her backside. Initially she was surprised and confused but on seeing that it was the applicant she said:

"I no longer felt in fear for my life, but felt shocked. I did not know what to do or how to react".

The applicant immediately desisted from any further conduct and said he was sorry.

The following day the complainant spoke to her mother and as a result there was a meeting involving the complainant, the applicant, his parents, and her parents. At that time the applicant again apologised to the complainant. Subsequently he wrote a letter of apology to the complainant on 22 December 2001.

The matter was then placed in the hands of church elders who imposed a 12 month ban on the applicant from holding any leadership position, excluded him from the church band for a period, and directed that he attend regular meetings with a senior elder. The applicant paid for the complainant to attend professional counselling and he himself attended counselling for 12 months. Both the applicant and the complainant attended a mediation session conducted by a psychologist in 2002. In the course of that the complainant accepted that the applicant was sorry.

Subsequently the applicant graduated from high school and gained entry to a degree in Information Technology at the University of Southern Queensland. He has also obtained a Duke of Edinburgh award. Numerous references were placed before the sentencing judge deposing to the applicant's good character subsequent to the commission of the offence.

It is clear that by the time of sentence the circumstances of both parties, particularly the applicant, had changed since the date of the commission of the offence. Given the full and frank disclosures made by the applicant to his own and the complainant's family, given the punishment imposed by the church, and given the reconciliation proceedings between him and the complainant, it could no longer be said that there was any possibility of further offending.

In addition, it has to be said that the touching involved the commission of an offence at the lower end of the scale, given the types of cases which regularly come before the courts. By the time of sentencing, the applicant had embarked upon a university course which ought to lead to secure employment in the future.

In the circumstances, a probation order was the appropriate form of punishment to impose on the applicant. As noted above, the only issue is whether or not a conviction ought to have been recorded.

As pointed out in submissions to the learned sentencing judge, and again before this Court, such a conviction will have a significant impact upon the applicant's future. It makes it difficult, if not impossible, for him to obtain a Blue Card entitling him to work with young people. That is of significant concern to a young man who has in the past demonstrated a capacity to act as a leader and a willingness to help others.

The learned and experienced sentencing judge regarded the issue whether or not a conviction should be recorded as the most difficult part of the sentencing process. He was referred by counsel to the decision of this Court in R v K; ex parte Attorney-General [1997] QCA 427; CA No 321 of 1997, 28 October 1997. In that case, the Attorney-General unsuccessfully appealed against the non-recording of a conviction where a youth aged between 17 and 18 years pleaded guilty to four counts of indecent dealing with two girls aged 10 and 8, and one count of fellatio with a seven year old boy, and another count of indecent dealing with that boy. Certainly, this case is nowhere near as serious as R v K. Relevantly, the learned sentencing judge said:

"A very serious part of this incident of touching is that you entered her room. Your intention, as I understand it, was to talk to her. Now, there is nothing wrong with that and you should have persisted with that and spoken to her, woken her up, but you didn't. What you did, you touched her and touched her on a part of the body which didn't wake her up gently, but woke her up in fear. She lay there feeling fear for some time and that, in my view, means that I must record a conviction because of those particular circumstances."

Section 12(1) of the Penalties and Sentences Act 1992 (Qld) provides that a "court may exercise a discretion to record or not record a conviction" and then sub-section (2) provides that in determining whether or not to record a conviction:

"... a court must have regard to all circumstances of the case, including-

(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-

Macrossan CJ in R v Brown; ex parte Attorney-General [1993] QCA 271; [1994] 2 Qd R 182 at 185 considered the effect of that statutory provision. He relevantly said:

"In my opinion, nothing justifies granting a general predominance to one of those specified features rather than to another. They must be kept in balance and none of them overlooked, although in a particular case one, rather than another, may have claim to greater weight".

That was said after his Honour emphasised that the opening words of the section demanded that consideration be given to all the circumstances of the case. The section has also recently been considered by this Court in the R v Cay, Gersch and Schell; ex parte Attorney-General (Qld) [2005] QCA 467; CA Nos 241, 242 and 243 of 2005, 14 December 2005. The section was extensively considered in that case, and in particular, the Court dealt with the competing considerations of rehabilitation and deterrence in a matter of this kind.

Having regard to what was said by the learned sentencing judge in exchanges with counsel for the applicant before imposing sentence it appears that he placed a great deal of emphasis on the fact that in his view the applicant's level of education and general character were such that his chances of finding employment would not be significantly affected by the recording of a conviction and in consequence his economic future would not be significantly affected. He also emphasised in his sentencing remarks that the offence occurred in the complainant's bedroom. But in my view, concentrating on those matters undervalued consideration of all the circumstances of the commission of this offence, the age of the applicant at the material time and the applicant's overall character.

When due weight is given to those factors, in my view this was not an appropriate case in which to record a conviction. The age of the parties at the relevant time, their pre-incident relationship, the way in which the offending was dealt with in the families and in the social framework in which the parties moved, the significant delay in making a formal complaint to the police after the offence was generally known, and the character of the applicant demonstrated by his conduct during the period between committing the offence and sentence, are all factors establishing that the recording of a conviction was not justified.

It follows that there was an error in the exercise of discretion by the learned sentencing judge. In the circumstances, the recording of a conviction makes the sentence imposed manifestly excessive.

I would grant leave to appeal, allow the appeal and set aside the recording of a conviction.

THE PRESIDENT: I agree with all that has been said by Justice Williams. I wish only to make some further observations to emphasise why this Court is not recording a conviction for an offence of indecent dealing.

The offence was at the minimal end of the range of offences of this type. The complainant and applicant were relatively close in age, 15 and 17 years old respectively, so that there was no element of abuse of power, a common aggravating factor in these sorts of offences.

The applicant acted inappropriately but on the impulse, taking a wrongful advantage of an opportunity, not just of the complainant but also of the hospitality extended to him by her parents and her brother. His actions, whilst frightening for the complainant as her victim impact statement identifies, must be seen as those of an immature 17 year old who was still a child himself, a year 12 high student.

He has, in the many years since this offence occurred, done everything possible to demonstrate genuine remorse and to remedy the insult to the complainant. He has accepted responsibility for his actions and has undergone counselling and mediation. There is nothing to suggest he will re-offend, indeed, everything placed before the Court suggests the contrary. He has since become captain of his school, completed a Duke of Edinburgh Award and is well on the way to finishing his tertiary studies. A conviction for an offence of this type would, in my view, seriously hamper his career prospects and unfairly so in the light of the relatively minor nature of the offending to which he pleaded guilty.

The learned and experienced sentencing judge did carefully consider whether or not to impose a conviction but in deciding to do so in all the circumstances, the resulting sentence was manifestly excessive. The sentencing discretion miscarried. There is sensibly no appeal in respect of the period of probation imposed in this case. On the most unusual facts here, which strongly indicate that rehabilitation has already taken place, a bond would also have been within a sound exercise of the sentencing discretion.

I agree with Justice Williams that leave to appeal should be granted. The appeal should be allowed and the recording of a conviction set aside. I would also order that no conviction be imposed.

FRYBERG J: I agree with what has been said by my colleagues and with the orders proposed by the President. The complainant and the applicant are to be commended for taking part in the mediation session conducted in 2002, six months after the offence. That was a most appropriate way for the situation to be handled. This Court should encourage all reasonable attempts at restorative justice.

Unfortunately, no information was placed before the sentencing judge about events after that mediation. It would have been material to know whether the applicant maintained the constructive approach which he then demonstrated. The evidence available contained few hints and raised a number of questions.

The principal question was: why did an apparently successful mediation end in failure? What led the complainant some three years after the offence to complain to the police? Did the applicant do everything necessary on his part to implement what was decided at the mediation? What were the attitudes of their respective parents? What was the Crown Prosecutor hinting at when he said of the complainant, when she turned 18 she made a complaint to the police?

Favourable evidence regarding these matters might have supported a submission that no punishment at all should be imposed. It would be odd to impose probation on a person who, for three years since the offence, had led an exemplary life. If that were demonstrated to be the situation, probation would be a futile waste of public resources. Unfortunately, the picture was incomplete; that is why I agree that a probation order was appropriate.

It is profoundly to be hoped that in the future the possibilities of restorative justice are explored in all cases which can properly be characterised as arising from teenage immaturity. Trial on indictment is a clumsy response in such cases and is unlikely to satisfy anyone involved. A multiplicity of such trials might encourage a mistaken view that every instance of adolescent fumbling gives rise to a claim for criminal compensation. That would be unfortunate.