_R v Schneider; ex parte A-G

[1]

Director of Public Prosecutions (Queensland) for the appellant

[2]

**[1] McMURDO P and HOLMES JA: The respondent pleaded guilty on 12 October 2007 to one count of maintaining a sexual relationship with a child with circumstances of aggravation, three counts of rape, one count of indecent treatment of a child under 16 and seven counts of indecent treatment of a child under 16 whilst under his care. He was sentenced to five years imprisonment on the count of maintaining, and to lesser terms of imprisonment on the remaining counts. The judge ordered that he be eligible for parole on 12 October 2008, that is, after serving 12 months imprisonment. The judge also recommended that he undertake courses and counselling in relation to his sexual offending both during and after his imprisonment. The appellant, the Attorney-General of Queensland, appeals against that sentence contending that it is manifestly inadequate.

[3]

[2] The respondent pleaded guilty at a very early stage. The committal was by way of hand-up witness statements without any cross-examination. The respondent was 39 years old at sentence and between 32 and 34 during 2001 and 2002 when he committed 11 of the 12 offences. The remaining offence occurred on 19 December 1994. He had no prior criminal history but on 9 February 2006 he was sentenced to 15 months imprisonment suspended after five months for a period of three years for seven counts of indecent treatment of children. Those offences occurred between 1 February and 12 October 2002 when he exposed himself to seven young teenage female students at the church school which features in the majority of the present offences. The complainants in the present offences pursued their complaints after learning of his conviction and sentence in February 2006.

[4]

[3] The circumstances of the maintaining offence (count 1) were as follows. The respondent was a teacher at a suburban church school. He became friendly with the complainant, A, through a school gardening group which she joined in the third term of 2001. He made bets with her. If she lost the bet she was required to perform sexual favours for him. The sexual relationship with A commenced when he made her watch him take off his trousers and he stood in front of her in his underwear. It escalated to include the following. He had A masturbate him. He touched her on the chest, legs and vaginal area. He took her bra for the day. He digitally penetrated A's vagina on three occasions. He performed oral sex on her. He made her perform oral sex on him. He made her watch him whilst he masturbated. He threatened that if she told anyone she would be expelled and it would be her fault if he lost his job. He told her he would leave her friends alone if she did what he wanted. He told her that if she stopped coming to see him he would make school a difficult place for her. He regularly asked her to visit him in his classroom outside school hours. He attempted to push her skirt up her legs and look down her shirt. Sometimes they would just talk and he would help her with her school work. On one occasion she was late for sport. He told her to get changed in the back room while they were talking. He came into the room and watched her dress. He tried to convince her to wear a G-string to school. When she refused, he told her she would have to do something to make up for it.

[5]

[4] Counts 2-9 inclusive were particularised episodes of conduct involving A. These offences occurred when A was in grades 8 and 9 and aged 13 and 14 years.

[6]

[5] Count 11 concerned the complainant T, who attended the same school as A. The respondent was her physical education teacher in grade 6 and for part of grade 7 and tutored her in maths after school when she was in grade 7 and 13 years old. He discussed boys with her and told her how to give oral sex. He would dare her to do things if she got maths questions wrong, such as press her breasts or bottom against the window. During a school break-up at the end of grade 7 he was in the swimming pool with her. He put his hands under her swimming costume and slid the costume into a G-string effect.

[7]

[6] The complainant in count 12 , J, was also a student at the school attended by A and T. On one occasion in 2001 J and A were using computers in a classroom. The respondent showed them a video on his computer. The video depicted a piano keyboard effect with each key represented by a piece of cloth hanging vertically. A male would poke his erect penis through the gaps in the cloth in time with the music that was being played.

[8]

[7] In 1993, the complainant in count 10, L, attended another church school. The respondent was her teacher. The following year she was in grade 8. He was not her teacher but still taught at the school. He tutored her in maths one afternoon a week. He became friendly with L's family, who held a dinner party on 19 December 1994 to farewell him before he moved interstate. He arrived at L's home at about lunchtime to assist with preparations. L and her younger sister were home alone. He joined them in the swimming pool. He rubbed L's breasts and vaginal area, sometimes inside her swim suit.

[9]

[8] A, T and T's mother provided victim impact statements to the court. A developed an eating disorder following the respondent's offending. Her relationships with her family suffered. She continues to feel guilty about the relationship. She has nightmares, has attended two psychologists, and recognises that she will need ongoing counselling. T, a close friend of A, feels guilty that she did not know more of what was happening to A and do more to help her. The respondent's conduct made T's last years at school difficult and she now finds it hard to trust others. The statement from T's mother confirms the effect of the respondent's conduct on T. T's mother also feels a sense of guilt at not having been able to protect her daughter from the respondent.

[10]

[9] The prosecutor at sentence emphasised the following serious aspects of the offences. They spanned a 15 month period and also included the earlier episode in 1994. The respondent threatened A with disadvantage if she reported his behaviour. Three of the offences involved digital penetration. The present offences were much more serious than the convictions in February 2006. The sentence imposed on those offences, however, required some moderation of the present sentence because of the totality principle. A head sentence of about five years imprisonment was appropriate with a parole eligibility date after about one third. That date should be further reduced to take into account the five months served in prison in respect of the February 2006 offence.

[11]

[10] Defence counsel first tendered a psychological report from Dr Ian Lynagh dated 20 October 2005 prepared for the sentencing court in the earlier offences. It included the following information and opinion. The respondent had a good family upbringing, had tertiary qualifications as a teacher, and had studied overseas before commencing his career in various Australian schools. He was married with two children, then aged 4 and 21 months. He should seek psychological counselling and therapy from an appropriate psychologist. With such treatment and with the deterrent effect of criminal charges, his risk of recidivism was minimal. He should avoid being around impressionable young females until he showed significantly more personal maturity.

[12]

[11] Defence counsel next tendered a more recent psychiatric report from Dr Klug dated 4 September 2007 which contained the following information and opinion. The respondent's marriage had ended in divorce. The children were aged six and three and a half. The matrimonial assets were divided 70-30 in his former wife's favour. Since his release from prison in 2006, he had developed a new and positive relationship with a woman who was aware of his background and supportive of him. After being stood down by the school when the offences came to light, he sought professional help. This counselling enabled him to gain some understanding of his inappropriate behaviour. The respondent suffers from paraphilia, a psychiatric disorder characterised by aberrant sexual behaviour including exhibitionism and fetishism and he has a socially unacceptable interest in underage post-pubescent girls. Treatment is difficult but options include cognitive behaviour therapy to teach patients techniques to control their deviant sexual urges; psycho-pharmacological treatment to reduce the sex drive; dynamic psychotherapy; anti-androgenic medication to reduce sexual desire and selective serotonin reuptake inhibitors used on the premise that paraphilia may be part of the obsessive compulsive spectrum. Treatment outcomes vary and recidivism remains a problem. Untreated sexual offenders have a higher rate of recidivism than those who participate in and complete a treatment program. The following factors suggest a favourable prognosis in the respondent's case. He has voluntarily sought counselling. He has re-integrated himself into the work force in an occupation where he is unlikely to be tempted to carry out paraphilic acts. He had a normal heterosexual relationship with his wife of 15 years and is now engaged in another long-term heterosexual adult relationship. He maintains a good relationship with his sons. He has no interest in pre-pubescent females which suggests he is not a paedophile. There is nothing in his history to suggest violent tendencies. He expresses distress, shame, remorse and contrition over his past paraphilic conduct. He has no other psychiatric or forensic or anti-social behavioural history. He is making a strong effort to rehabilitate himself. It is in the interests of his mental health if he is able to continue his rehabilitation. The prospect of a further custodial sentence, should he relapse, would be a strong deterrent. His rehabilitation and society's interests would benefit from a long period of probation associated with compulsory treatment.

[13]

[12] Defence counsel emphasised the following. The respondent had already served five months imprisonment in respect of the February 2006 offences, been released and commenced his rehabilitation with promising prospects. Had the present offences been dealt with at the same time as the other offences in February 2006, an effective sentence for all his offending behaviour would have been one of 5 years imprisonment with a parole eligibility date after 18 months. His efforts at rehabilitation since his release from prison after serving five months warrant a further reduction in the term of imprisonment now to be served before release on parole. The respondent should be released after serving a further eight or nine months imprisonment.

[14]

[13] In passing sentence, the learned primary judge outlined the serious aspects of the offences and made the following observations. The respondent pleaded guilty at an early stage. None of the complainants had been required to give evidence. His Honour referred to the sentence imposed for the February 2006 offences and the psychological and psychiatric reports. Had he been dealing with all matters at the same time he would have imposed a head sentence of 5 years imprisonment with a recommendation for release on parole after serving one third (20 months). Because the respondent had now served 5 months in prison in respect of the earlier sentence, this would mean a recommendation for release after 15 months. That period should be further reduced to recognise the respondent's significant efforts at rehabilitation since his release from prison in 2006. He had obtained employment, entered into a new relationship and most importantly had undertaken counselling to address his personality aspects that led to commission of these offences. For those reasons, his Honour set parole eligibility at 12 months.

[15]

[14] The appellant contends the following. The judge erred in selecting a commencement point of five years imprisonment as the appropriate overall punishment for all offences. A term of between six and a half and eight years imprisonment was the appropriate sentence. The respondent occupied a position of great trust reposed in him not only by the victims but also their parents and the school authorities. He abused that position of trust over a substantial period spanning 2001 and 2002. He threatened the principal complainant, A, if she reported him. An additional aggravating feature was that three counts involved penetrating the complainant's vagina with his fingers. In support of his contention, the appellant relied on R v May;[1] R v Irlam; ex parte A-G;[2] R v CX;[3] R v MAM;[4] and R v M.[5] The appellant submits that the appropriate sentence on these offences was seven years imprisonment with a parole eligibility date on 12 October 2009, that is, after two years.

[16]

[15] The respondent emphasised the following matters to support the sentence imposed. He pleaded guilty at an early stage so that no complainant gave evidence. He had been sent to prison in respect of related conduct in much the same time period and had been released and rehabilitated. He now had to return to prison despite his commendable rehabilitative efforts. This required a moderation of the sentence to be imposed for the present offences. The cases relied on as comparable by the appellant were all distinguishable on their facts from the present case. The sentence imposed was within range and did not warrant interference on an Attorney-General's appeal. This was especially so when the sentence imposed was broadly consistent with that requested by the prosecutor at sentence: Everett v The Queen[6] and R v Vincent; ex parte A-G.[7]

[17]

[16] This case was an appropriate vehicle for the learned sentencing judge to apply the totality principle and consider what sentence he would have imposed had he been sentencing the respondent in February 2006 for the offences before the court on that occasion as well as the present offences. But in stating that had he done so he would have imposed a head sentence of five years imprisonment, his Honour was in error. Had such a sentence been imposed, it would have been manifestly inadequate because of the serious aspects of these offences, especially those involving A. But in imposing a 5 year head sentence on the present offences, in light of the 15 month head sentence imposed in February 2006, the true effect of the combined sentences, had they been imposed in February 2006, was a head sentence of 6 years and 3 months. The respondent will have served 17 months of this before he becomes eligible for parole. The real question in this appeal then is whether, in the unique circumstances pertaining here, the effective sentence of 6 years and 3 months with parole eligibility after 17 months was manifestly inadequate in respect of the respondent's conduct for the present offences and those for which he was sentenced in February 2006.

[18]

[17] The appellant has relied on a number of cases which he claims are comparable to demonstrate manifest inadequacy. In Irlam a sentence of 5 years imprisonment with parole eligibility after 12 months was increased on an Attorney-General's appeal to 7 years imprisonment with release after 2 years. Like the present case, it involved a serious breach of trust by a school teacher who sexually abused a female student, but the child was younger (10-12 years old) than the principal complainant in the present offences and Irlam's course of conduct included an offence of penile rape. Further, Irlam went to trial and so did not cooperate with the authorities, nor did he have the significant remorse and rehabilitative prospects of the respondent in this case. When these features are taken into account, although Irlam involved only 1 child instead of the multiple victims in the present case, it suggests the effective sentence imposed in the present case of 6 years and 3 months to serve 17 months before eligibility for release on parole was within range. Similarly, in CX, the offending conduct was more serious than here; it included penile penetration and sodomy and the sentence of seven and a half years imprisonment again was imposed after a trial. In MAM a sentence of six years imprisonment was imposed, again after a trial. The offences in May, as in Irlam, were perpetrated on a pre-pubescent girl. May, like the respondent, pleaded guilty. But the fact that this Court did not regard as manifestly excessive the sentence imposed there (6 years imprisonment with parole eligibility after 2½ years) does not persuade us that the effective sentence of 6 years and 3 months imprisonment with parole eligibility after serving 17 months was manifestly inadequate in the present case. These cases do not demonstrate that the effective sentence imposed on the respondent was outside the range established by decisions of this Court.

[19]

[18] The very serious aspects of these offences are that they constituted a gross abuse of trust placed in a teacher by his students, their parents and the school which employed him. Taking into account the February 2006 offences, he preyed upon 11 young teenage girls. The offences concerning A were the most serious. They took place between July 2001 and September 2002 and involved three acts of digital vaginal penetration. The respondent used his power as a teacher over her to threaten her with expulsion if she complained and to make school difficult for her and her friends if she avoided him. The offences have had a traumatic effect on A and T and T's family.

[20]

[19] On the other hand, there are many mitigating factors which must be given due weight. The respondent cooperated with the authorities through his early plea of guilty to all counts so that all complainants were saved from the further trauma of giving evidence in court. Because he was first sentenced on less serious offences in February 2006, he has suffered the unusual punishment of having served a term of imprisonment on those offences, been released into the community and apparently rehabilitated before being further sentenced and returned to prison for the related present offences. Dr Klug's report listed the multiple factors which suggest a favourable prognosis of rehabilitation. Dr Klug also noted that the respondent's rehabilitation and society's interests would benefit from a long period of community-based supervision with compulsory treatment. When released from prison in 2006, the respondent obtained employment where he is unlikely to have access to young teenagers. The Commission for Children and Young People and Child Guardian Act 2000 (Qld) should also ensure that his access as a teacher to young people will be prohibited unless his rehabilitation is beyond doubt. In addition, the respondent will have onerous reporting obligations to the authorities under the Child Protection (Offender Reporting) Act 2004 (Qld) for 15 years: see s 36(1) of that Act.

[21]

[20] The cases to which we have referred suggest that the effective sentence of 6 years and 3 months imprisonment with eligibility to be released on parole after serving 17 months was towards the lower end of the appropriate range for these offences. It was close to that urged on the primary judge by the prosecutor and not so very far from the sentence now contended for by the appellant. A somewhat heavier sentence could well have been imposed without the respondent having any legitimate grievance. The present sentence does, however, have the community benefit of ensuring that the respondent's to-date impressive efforts at rehabilitation are monitored in the community over a lengthy period by trained parole officers. In the end, we are not persuaded that the sentence, though compassionate to the respondent, was so manifestly inadequate as to justify this Court's interference.

[22]

[21] We would refuse the appeal against sentence.

[23]

[22] FRYBERG J: The circumstances giving rise to this appeal have been recorded in the joint reasons for judgment of the President and Holmes JA.

[24]

[23] I agree with their Honours that it is appropriate to consider the totality principle in assessing the sentence in this case and that the real question in the appeal is whether in the circumstances the effective sentence of six years and three months with parole eligibility after 17 months was manifestly inadequate.

[25]

[24] Six years and three months as the head sentence is undoubtedly low, perhaps even slightly below the bottom of the range appropriate for the case. However it is not so disproportionate in my judgment as to make the sentence manifestly inadequate.

[26]

[25] It is otherwise in relation to the order for parole eligibility. Under the sentence imposed the respondent will serve only about 22% of his total sentences before becoming eligible for parole, less than one quarter. There is no evidence to suggest that he will not get parole when eligible. Such an early eligibility date would be warranted only by unusual mitigating circumstances. I can see no such circumstances in this case. Indeed the use of threats by this school teacher against a young girl in his charge is a seriously aggravating factor.

[27]

[26] In particular the eligibility date is not in my judgment warranted by the fact that the respondent served part of that imprisonment and was released back into the community before his current period of imprisonment commenced. To regard that factor as warranting a heavy discount in this case is to extend the hypothetical exercise involved in artificially applying the totality principle for a purpose not warranted by that principle. The reality is that he is to serve two terms of imprisonment. That he is not serving a single term is the consequence of his own failure to confess to the offences of which he has now been convicted at the time of the earlier charges. At least one of them had been alleged at that time and it was open to the respondent to demonstrate his willingness to cooperate in the administration of justice by informing the police of others of which they may have been unaware, and facing up to all of his offending.

[28]

[27] The mitigating factors present in this case would adequately be reflected by fixing a parole eligibility date of 12 June 2009. That would result in his serving 25 months of the total of six years and three months referred to above.

[29]

[28] Even if one were to take the respondent's release into the community into account as a mitigating factor of unusual importance, advancing the parole eligibility date by eight months in recognition of it was disproportionate. It made the sentence manifestly inadequate.

[30]

[29] I would allow the appeal, set aside the parole eligibility date fixed in the District Court and in lieu thereof fix 12 June 2009 as the parole eligibility date. In the circumstances I would not vary the head sentence.**

[31]

[1] [1999] QCA 127; CA No 450 of 1998, 14 April 1999.

[32]

[2] [2002] QCA 235; CA No 157 and 173 of 2002, 26 June 2002.

[33]

[3] [2005] QCA 222; CA No 353 of 2004, 24 June 2005.

[34]

[4] [2005] QCA 323; CA No 118 of 2005, 30 August 2005.

[35]

[5] [2003] QCA 231; CA No 94 of 2003, 27 May 2003.

[36]

[6] [1994] HCA 49; (1994) 181 CLR 295 at 307.

[37]

[7] [2000] QCA 250; [2001] 2 Qd R 327 at 329 [9]; [2000] QCA 250 at [9].

At a glance

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