R v Svensson; ex parte A-G

SUPREME COURT OF QUEENSLAND

CITATION: R v Svensson; ex parte A-G (Qld) [2002] QCA 472

PARTIES: R v / SVENSSON, Kenneth Roy / (respondent) / EX PARTE ATTORNEY-GENERAL OF / QUEENSLAND / (appellant)

FILE NO/S: CA No 221 of 2002 / DC No 920 of 2002 / DC No 921 of 2002

DIVISION: Court of Appeal

PROCEEDING: Sentence appeal by A-G (Qld)

ORIGINATING COURT: District Court at Brisbane

DELIVERED EX TEMPORE ON: 5 November 2002

DELIVERED AT: Brisbane

HEARING DATE: 5 November 2002

JUDGES: de Jersey CJ, McMurdo P, and Davies JA Separate reasons for judgment of the members of the court, each concurring as to the orders made

ORDERS: Allow the appeal and vary the sentences imposed in the District Court as follows:on the first indictment in respect of counts one and two, order that the imprisonment be suspended after 12 months for three years;on the first indictment, in respect of counts three and four, order that the imprisonment be suspended after 12 months for four years;on the second indictment, order that the imprisonment of three years be suspended after 12 months for three years.Order that a warrant issue for the arrest of the respondent to lie in the Registry until 4 pm, 12 November 2002, pending any necessary execution

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where the Attorney-General appeals against sentences imposed on the respondent, who, when in his 40’s and 50’s, sexually abused boys aged 15, 16 and 17 and a half years – where sentence submitted by the Prosecutor was for 2 ½ to 3 ½ years but where trial Judge wholly suspended the sentence because of the accused’s health problems / CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PURPOSE OF SENTENCE – RELEVANT PRINCIPLES – where, given the nature of the offending, the respondent’s physical condition should not exclude actual imprisonment – where a sex offender substantially removed in age from his young victim cannot escape condign punishment by suggesting the victim was at or close to an “age of consent” / R v Gilles [2002] 1 Qd R 404, considered / R v Irlam; ex parte A-G (Qld) [2002] QCA 235, CA No 157 of 2002, CA No 173 of 2002, 28 June 2002, followed

COUNSEL: T Martin SC for the respondent / M J Copley for the appellant

SOLICITORS: Gilshenan & Luton for the respondent / Director of Public Prosecutions (Queensland) for the appellant

THE CHIEF JUSTICE: The Honourable the Attorney-General appeals against sentences imposed on the respondent, who, when in his 40s and 50s, sexually abused boys aged respectively 15 years, 16 years and 17 and a half years.

It is that substantial age discrepancy which I believe assumes considerable significance in this case. The 15 year old left school to accept employment in the respondent's video production business. Two offences of indecent dealing which occurred in the mid-1980s involved masturbation.

Against a maximum of five years' imprisonment, the learned Judge imprisoned the respondent for two and a half years, fully suspended for three years. It was submitted in the written material for the respondent that the complainant was only months short of his 16th birthday, beyond which no breach of the law would have been involved and that the respondent thought the complainant was 16.

As to the first point, the respondent of course pleaded guilty. As to the second, the respondent was then 41 or 42 years old. Such a substantial disparity in age should obviously have caused a mature offender responsibly to query the legitimacy of his dealing that way with someone so young. The complainant, now 33 years old, considers himself emotionally scarred because of these events. He had not previously been sexually exploited. Significantly, the respondent used his position as employer to pressure the complainant, if indirectly, into compliance. The 17 and a half year old boy in the 1990s was sodomised twice by the respondent. On the first occasion, the complainant's cooperation related to a promise of employment by the respondent.

On the second, the employment was already in place. The complainant eventually left the respondent's employment because of discontent that it should depend on his granting sexual favours to the respondent. This complainant had previously been sexually exploited by others.

His victim impact statement shows, nevertheless, deep emotional disturbance because of this dealing. It is emphasised for the respondent that, from his aspect, the activity was apparently consensual. That may be, but as with the 15 year old, the gross disparity of age is greatly significant.

For these offences of sodomy, the learned Judge imprisoned the respondent for three and a half years, wholly suspended for four years. The third complainant, when 16 years old, permitted the respondent to commit sodomy upon him three times and the complainant once committed sodomy on the respondent.

The respondent makes the point that he believed this complainant to be 17 at least, but he has pleaded guilty and my earlier point about gross age disparity again applies. It is submitted for the respondent that this complainant was in effect a prostitute. That may be, but obviously the protection of the law must be fashioned to protect under age persons who have yielded to a temptation of that character and to deter mature persons inclined to exploit them.

For this offending, the Judge sentenced the respondent to three years' imprisonment, wholly suspended for three years. Before her Honour the Crown Prosecutor had submitted for a term of imprisonment of two and a half to three and a half years, which could be moderated by a recommendation or suspension.

The full suspension is substantially explained, I believe, by her Honour's allowance for the respondent's health problems. He suffers from orthopaedic problems and possibly heart disease. The Judge was provided with reports from the respondent's general practitioner and the orthopaedic surgeon, Dr Tuffley.

There is no doubt incarceration would be more burdensome for the respondent and for others, because of his problems, but as pointed out recently in Irlam [2002] Queensland Court of Appeal 235, Corrective Services has special facilities for persons in this sort of situation and this feature must not be allowed to overwhelm appropriate reflection of the nature of the offending.

Gilles [2002] 1 Queensland Reports 404 is factually rather like this case and provides assistance, notwithstanding different maximums. The two year sentence imposed there was suspended after three months for two and a half years. The offender had been released before the hearing of the Attorney's appeal.

The Court declined to intervene. The two year sentence suspended after three months in that case was imposed after consideration of section 13A type cooperation. The Court nevertheless expressed the view that the sentence was inadequate, which no doubt explains why the prosecutor was in this case inclined to suggest the higher range, two and a half to three and a half years.

As will emerge, I feel that that range was too low. We were also referred to Wain, Court of Appeal 187 at 1998 and Denboon, Court of Appeal 211 of 1993. While it is true, of course, that the respondent must be given credit for his early pleas of guilty and for the absence of any prior criminal history, the ultimate situation, that he not serve any period of actual incarceration, is unacceptable.

The respondent's physical condition should not, as appears to have occurred, exclude actual imprisonment. The circumstances of the offending, with three separate complainants, spanning many years, including sodomy and with adolescent complainants preyed upon by a supposedly mature offender of considerably greater age, effectively obliged the Judge, in my view, to imprison the respondent in fact.

I consider the sentence which should overall have been imposed was four years' imprisonment, moderated to reflect the pleas of guilty and health considerations by a suspension. While I would have been inclined, for my part, to order a suspension after 15 months, I will defer, in the interests of unanimity to the view which I know will be expressed by my colleagues, that the suspension should apply after 12 months, bearing in mind that this is an Attorney's appeal and the traditional approach has been one of moderation.

It is sufficient in adjusting the sentences imposed below to vary the period of the suspension. I would allow the appeal and vary the sentences imposed in the District Court as follows:

1.On the first indictment, in respect of counts 1 and 2, order that the imprisonment be suspended after 12 months, for three years.

2.On the first indictment, in respect of counts 3 and 4, order that the imprisonment be suspended after 12 months, for four years.

3.On the second indictment, order that the imprisonment of three years be suspended after 12 months, for three years.

The consequence will be of course that the respondent will be required to serve an actual 12 months' incarceration and then be subject to activation of the balance of the three and a half year term in the event of further relevant offending. There will be need additionally to order the issue of a warrant for the arrest of the respondent.

The particular points I wish to convey by this judgment are first, that a sex offender substantially removed in age from his young victim cannot escape condign punishment by suggesting he thought that the complainant was at or close to an age of consent or whatever and second, that with the capacity of contemporary prisons, complaints of hardship through incarceration because of particular physical conditions will assume less significance than may previously have been the position.

THE PRESIDENT: As the Chief Justice has demonstrated in his reasons, these offences were serious examples of the sexual exploitation of vulnerable youths by an older man in a position of power over the youths.

I agree that the order proposed by the Chief Justice is appropriate here. An effective sentence of no more than three and a half years' imprisonment, suspended after 12 months, is warranted in this case because of the moderating factor that this is an Attorney's appeal and because of the sentence asked for by the respondent at sentence, repeated on this appeal, was no higher than this. See the observations of this Court in Tricklebank v. R [1994] 1 Qd R 330.

That sentence is also consistent with the maximum penalty applicable for the most serious of the offences to which the applicant pleaded guilty and with the comparable sentences to which we have been referred.

I only wish to add one further observation and that is that although an offender's belief as to the age of a victim in offences such as this may provide some explanation for the sexual offending and be a relevant mitigating factor, it can, of course, never excuse such conduct.

I agree with the orders proposed by the Chief Justice.

DAVIES JA: I also agree with the orders proposed by the learned Chief Justice and I agree substantially with the reasons which he has given for those orders. I agree that a sentence imposed in this case could have been one up to four years, notwithstanding the maximum penalty.

I agree that it was appropriate to moderate it, as the learned sentencing judge did, and that the head sentence should remain as it was. I think also, partly for that reason, that the sentence should be suspended, as the learned Chief Justice has ordered, after a period of 12 months.

The other reasons for my conclusion that that is so are that the respondent will find imprisonment more burdensome than a fit and healthy person and, whilst I accept his Honour's reasons for the view that that is a less important factor in view of the excellent prison facilities to cater for persons such as the respondent, it is still a relevant factor.

The other factor, it seems to me, which is relevant is that it is appropriate to moderate the sentence, having regard to the maximum period of imprisonment which applied to the submissions which were made by counsel for the Crown both below and in this Court, and to the appropriate attitude which this Court has adopted in respect of Attorney's appeals.

THE CHIEF JUSTICE: The orders are as I have indicated.

A warrant will issue for the arrest of the respondent, but it will lie in the Registry until 4.00 p.m. on the 12th of November 2002, pending any necessary execution.