R v Simpson [1999] QCA 156

Court of Appeal (Qld)|1999-05-07|Before: Davies J, Pincus J, White J

I agree with the judgment of Pincus JA and with his reasons. I also agree with the comments of White J.

This is an application for leave to appeal. The applicant, having been convicted on pleas of guilty of sexual offences against boys, complains that sentences of 14 years imprisonment were excessive. There were five complainants, who will be designated by the letters A to E; their ages were 12, 13, about 15, 14 and 15 years respectively, when the offences commenced. Commission of the offences began in 1981, continued till 1987, recommenced in 1993 and ceased in 1997. The total length of time over which commission of the offences extended was about 11 years.

Before coming to the details of the basis upon which the applicant (now aged 36 years) was sentenced, it is necessary to discuss a more general point. In relation to complainants B and C, the prosecutor informed the judge that there were numerous sexual acts not specifically charged and they were those which constituted the offences of maintaining. With respect to the other three complainants, the decision of this Court in R v. D [1995] QCA 329; [1996] 1 Qd.R. 363, is authority for the view that where specific sexual offences against a complainant are charged, it is impermissible to take into account allegations of uncharged instances of sexual misconduct, for the purpose of determining sentence: pp. 403, 404. It is necessary to make this point because some of the information before the Court with respect to complainant A was suggestive of the occurrence of sexual acts other than those (five in number) which were specifically charged.

The matter first came before the primary judge on 30 October 1998 when the applicant was arraigned and pleaded guilty. The judge was then told of recent receipt of a report by a psychiatrist, Dr Majumdar, in which it was stated that the applicant claimed that he was not a paedophile and that the complainants "came to him and instigated the activities". The prosecutor told the judge on 30 October that these points were in dispute and sentencing was adjourned so that evidence could be called. The matter came before the court again on 24 November 1998 when counsel for the applicant said there were two medical reports to be put in; they turned out to be that from Dr Majumdar just mentioned and a further report obtained by the Crown, from Dr Fama. Counsel for the applicant below said that he did not require complainants to be called for cross-examination on victim impact statements and that the sentencing could proceed. The implication was that the issues which had caused the adjournment, and in particular the question whether it was the complainants who instigated the events in question, had disappeared.

But the submissions for the applicant below, while not disputing the Crown's assertion that the applicant was the instigator, sought to qualify or lessen the impact of that. Counsel for the applicant below said for example, that there was a relationship with complainant A lasting for years beyond the events charged, which was one of friendship not merely sexual gratification and that complainant B was "as were the others, quite willing partners".

The judge's view was that the applicant is "a person who opportunistically sets about the corruption and attempted corruption of males in their early to mid-teenage years". His Honour spoke of a pattern of "seduction/corruption". It is my view that, in substance, the judge sentenced on the basis that the offences happened in the way the Crown submitted without giving weight to defence attempts to put forward a set of facts more favourable to the applicant.

I have drawn attention to the aspect just discussed, although it was not raised by counsel for the applicant before us, Mr Shanahan. What happened below was that the impression was created that there was no substantial dispute about the facts and so evidence was not called at the sentencing hearing; but some of the observations made by counsel for the applicant below were suggestive of a relationship between the applicant and his victims different from that which would have been inferred from the Crown's submissions. Since the decision of this Court in Morrison (C.A. No. 391 of 1997, 26 June 1998), it has become clear that where the versions of the facts put forward by each side at sentencing differ it may be necessary for the Crown to call evidence, if it wishes the differences to be resolved in its favour. Further mention of this topic appears below.

As to complainant A, the conduct the subject of the relevant counts began when the applicant was 18 and the complainant 12; it continued for about five years and involved masturbation, oral sex and two offences of sodomy. The offences against complainant B began when he was 13 and the applicant 30 and continued for more than three years. The conduct constituting the offences was similar to that in relation to complainant A with the important exception that, as pointed out above, it was admitted that the applicant maintained an unlawful sexual relationship with this complainant. The Crown asserted that there were many sexual acts, "at least twice a week in one form or another", including between five and 15 acts of anal intercourse. The account of the offences against complainant C was rather similar to that relating to B, but in C's case the Crown asserted that there were numerous occasions on which sodomy occurred. This complainant was about 15 when the offences were committed.

Complainant D was 14 when the applicant (then aged 33) committed against him the offence of wilfully exposing him to an indecent photograph, an act which was accompanied by an offer of money for a "head job". With respect to complainant E, who was 15 at the time of the offences, an aggravating feature was that the applicant had an official relationship with him: the applicant was a governmental employee and "adolescent resource worker" and the complainant was a youth for whom the applicant had official responsibility. The two offences involving complainant E each had to do with attempts by the applicant to engage in oral sex. The Crown put forward that the applicant had encouraged each of the complainants to comply with his desires by gifts and favours.

I have mentioned above the report of Dr Majumdar; he said that the applicant had been seen by him intermittently for about 12 years before the date of his report, October 1998. It appeared that the applicant had been admitted to Prince Charles Hospital on a number of occasions for treatment of depression and because of apparent attempts at suicide. The applicant told Dr Majumdar that the applicant had been sexually abused from the age of 12 or 13. Dr Majumdar expressed the view that the applicant suffered from a major depressive disorder, as well as alcohol abuse. He said that the applicant "is a homosexual but not paedophile". He recommended ongoing psychiatric treatment but said that:

"In view of the family history of psychiatric illness, his past history of depression, suicidal attempts and personality problem, the prognosis is guarded".

The Crown had the applicant examined, as I have mentioned, by Dr Fama, who said that the applicant regretted his behaviour and was particularly remorseful about complainant B. With respect to the risk of reoffending, Dr Fama said that the applicant admitted that if not arrested "he would probably have continued the same way of life indefinitely", but that "after reflection in prison, there is no way that he would repeat such offences". The doctor said that the applicant "is fully capable of making a decision about the age of any future sexual partners. His homosexual orientation will not change. He is unlikely to acquire any interest in prepubertal boys, but there will always be a risk, despite his vows of reform, of slipping back into sex with vulnerable adolescents should the opportunity arise".

The learned primary judge's approach to the matter was, in summary, as follows. His Honour referred to the fact that the committal proceeded by way of a hand up and that the applicant had pleaded guilty. He noted that there were no relevant prior convictions. With respect to re-offending, his Honour referred to authority in this Court that "unfortunately offenders of this kind seldom abandon or succeed in controlling their habit". It is not clear to me that this observation is applicable to such an offender as the applicant; but see "Results of the Main Studies on Sexual Offences Against Children and Pubescents (A Review)" by Freund and others, Canadian Journal of Criminology, Vol. 24(4), p. 387 at 390, which cites studies concluding that "homosexual offenders against children or pubescents under age 16 had a significantly higher recidivism rate for sex offences than did comparable heterosexual offenders . . . ". The judge was satisfied that cumulative sentences of 5 years, 10 years and 2 years, each applicable to a distinct group of offences, would be "within a proper exercise of sentencing discretion". But taking into account "the factors in your favour, including your pleas of guilty", his Honour imposed wholly concurrent sentences, the longest of which were 14 years for each of the maintaining offences; it is those sentences which the applicant challenges.

I have examined the previous decisions to which we have been referred, but it seems to me enough to discuss only G (C.A. No. 380 of 1997, 21 November 1997), which has importance both as a case to which the primary judge made reference and as one on which counsel for the applicant particularly relied. In G there were, as here, two counts of maintaining an unlawful sexual relationship with a child under 16. In that case the two victims of the maintaining offences were aged about 11 when the sexual abuse began; the applicant's victims for the maintaining offences were aged 12 and about 15 and this age difference assists the applicant. There were three complainants against G; as I have pointed out, there were five complainants in the applicant's case. But each of the complainants against G was a child who had been placed with him by a governmental agency, G's obligation being that of a foster parent.

With respect to complainant E there was, as I have pointed out, an official relationship with the applicant; but the offences against that complainant were, relatively speaking, of much less significance than those against complainants B and C, with whom the applicant maintained an unlawful sexual relationship. In G, considerable violence was used against the complainants. One of them, a child who was physically and mentally somewhat deficient, ran from G's house; when G located him he punched the boy in the face, causing a significant injury, and dragged him back home.

As to the types of offences, there is the important difference that it appears G never sodomised his victims, although he mistreated them grievously in other ways. The present applicant has in his favour that, on the basis of the report of his psychiatrist, it must be concluded that he suffers from, and has for a long time been afflicted by, a significant psychiatric problem, namely a "major depressive disorder", causing attempts at suicide. The sentence imposed on G at first instance was 13 years. For reasons which are of no present relevance it was necessary for this Court to re-sentence G; it did so by reducing his sentence to 12 years.

I referred above to a degree of difficulty about the facts; although ultimately sentencing was I think done on the basis that the Crown version of the facts was correct, it is by no means clear that that version was unreservedly accepted by the defence. Certainly it was submitted that there was willingness on the part of some or all of the complainants, and there was absolutely no suggestion of that in G's case. The question of willingness or otherwise appears to me to be of some significance, particularly for the purposes of comparison with G. Of course, willingness on the part of the persons offended against is no excuse, but it has relevance if one is contrasting a case such as G, where repeated violence was used to induce compliance.

In my opinion the result in G accords well with other comparable cases and is a useful guide. By reference to it, the sentences imposed on the applicant appear to me high; I have had some concern whether the degree of excessiveness is sufficient to warrant granting the application. But, on the whole I have concluded that the proper course is to do so and to allow the appeal, to the extent only of reducing the 14 year sentences imposed below to 12 years.

I agree with Pincus JA that the application for leave to appeal against sentence ought to be granted and the appeal allowed to the extent that his Honour has indicated and for the reasons which he has given.
Although the debauching of the complainants constituted serious misconduct by the applicant, apart from the force inherent in the offences of sodomy, for example, there was no evidence of violence perpetrated against his victims of the kind present in G. Neither was the applicant in the position of protector to these complainants as was the case in G where the boys had been fostered to the offender, although, in respect of the last complainant, the applicant was in a position of trust.
I agree with Pincus JA that G provides the most helpful comparison for the sentence and is consistent with other comparable authorities. Once that comparison is made it can be seen that the penalty imposed below is too high.
His Honour has made reference to Morrison, CA No. 391 of 1997 of 26 June 1998, and the basis of the pleas of guilty below. The problem arose because the defence appeared to abandon its earlier stance that the complainants had instigated the activities but nonetheless advanced a description of the relationships which was more consensual and less predatory than that advanced by the prosecution. The prosecution was ready to call the complainants to contradict any suggestion that they were the instigators but in the light of the defence counsel's statement that that was unnecessary did not do so. It might be supposed that there was a defence concern that should the complainants or some of them have been required to give evidence about the nature of their relationship the benefit of the pleas of guilty would be compromised. In my view, ultimately, the version advanced by the prosecution differed only in emphasis from that of the defence but it demonstrates that care must be taken by counsel in identifying any factual conflict which might affect the sentence and be prepared to produce evidence if it cannot be resolved by agreement.

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