R v De Laat & Attorney-General Qld

[2001] QCA 205

[2001] QCA 205

COURT OF APPEAL

McMURDO P
THOMAS JA
HELMAN J

CA No 29 of 2001

THE QUEEN

v.

STEVEN JOHN DE LAAT  (Respondent)

and

ATTORNEY-GENERAL OF QUEENSLAND                  (Appellant)

BRISBANE

..DATE 29/05/2001

JUDGMENT

THE PRESIDENT:  The respondent was convicted on 3 June 2000 in the District Court at Southport of one count of indecent treatment of a child under 16 with a circumstance of aggravation and breach of a probation order.  He was sentenced to six months' imprisonment for the first offence and 12 months' concurrent imprisonment for the breach.  The appellant, the Attorney-General of Queensland, claims the sentence is manifestly inadequate. 

It is sensible to commence the discussion of the facts with the offences, the subject of the breach of probation.  On
1 May 1998 the respondent pleaded guilty to nine counts of indecent dealing with a child under 12 years and one count of attempting to procure a child under 12 to commit an indecent act.  At the time the respondent had no prior convictions.  The acts involved five boys aged between five and 12 years and included behaviour such as rubbing the boys on the penis and placing his groin against a child's buttocks simulating anal intercourse, exposing himself and attempting to make a child suck his penis.  The offences occurred in the respondent's bedroom after inviting the boys in to play on his computer. 

A psychologist report tendered before the 1998 sentencing Judge said the respondent did not "...fit the profile of sexual abuse between the male perpetrator and a number of underage people"..."does not have the personality profile of someone who engages in paedophillic behaviour". 

As has been noted the respondent was sentenced to six months' imprisonment and three years' probation with conditions including counselling and psychiatric and medical treatment. 

The respondent re-offended on 3 June 2000 when he touched an eight old boy on the penis through the boy's clothing.  The offence occurred in circumstances where the boy had approached the respondent on the beach and asked him for a turn of his fishing rod. 

A psychiatric report from Dr Jonathan Lichter was tendered on behalf of the respondent.  Dr Lichter noted the respondent participated in a sex offender's program and was well motivated and eager to understand and learn how to control his sexual impulses and avoid re-offending.  The respondent is of low average intelligence with a verbal IQ of 91, a performance IQ of 86 and a full scale IQ of 88.  Dr Lichter concluded:

"Steven is a paedophile with a primary homosexual orientation.  He is in the low/average range of intelligence and this, as well as his deafness has contributed to learning difficulties, a deficiency in social skills and difficulty forming age appropriate heterosexual relationships.

...

As part of any sentence which the Court imposes I would recommend that Steven continue to receive counselling of the type he has been offered to date, that is involvement in a sex offender's program and specific psychological counselling to improve his social skills and capacity to form appropriate adult relationships."

The respondent was 37 at the time of the more recent offence. 

Complaint is made by the appellant of the learned sentencing Judge's comments during pre-sentence submissions that he should not impose a sentence on the breach based on material now available which was not before the original sentencing Judge.

The breach of probation was a fresh offence (see s.123 Penalties and Sentences Act 1992). The new psychiatric report was highly relevant material to be taken into account. Indeed, the fact that the probation has been breached is itself new material not available to the original sentencing Judge. In dealing with an offender under ss. 123, 125 or 126 of the Penalties and Sentences Act 1992, a Magistrate or Judge should have regard to relevant matters which have occurred since the imposition of the original sentence.

Another complaint made by the appellant is that a victim impact statement which was provided by the boy's mother was disregarded by the Judge in his sentencing remarks.  The victim impact statement recorded the mother as saying that her son has recurring nightmares since the incident; the family has moved house because of it so that they were virtually homeless for six months; the boy has lost all trust in everyone; his personality had changed and he no longer went fishing.  She concluded that no child of his age should have to deal with anything like this. 

The learned Judge said in his sentencing remarks:

"In determining the penalty I have rejected the victim impact statement because it contains, in my view, exaggerated melodramatic assertions caused, I suspect, by the undoubted anger of the author, which has probably contributed to any distress suffered by the child as a result of this trivial incident."

Those remarks were unwise, in my view, in circumstances where no oral evidence had been received from the boy or his mother; they are not within the spirit of the Criminal Offence Victims Act 1995 (see especially ss. 4 to 6 of that Act).

Nevertheless, the real issue in this case is whether the sentence imposed was so inadequate that this Court's intervention is justified on an Attorney's appeal.  The appellant submits that whilst the sentence for the new offence was within range, the sentence of 18 to 21 months' imprisonment should have been imposed for the breach of probation.  The Judge did not place sufficient weight on the fact that the respondent had breached his probation by re‑offending in a similar manner and was, therefore, a risk to the community.

In neither the original offences nor in the new offence was there the aggravating factor that the respondent was in a position of trust.  The comparable sentences relied on by the appellant do not convince me that the sentence imposed was inadequate. 

The respondent spent 45 days in custody before being sentenced to a further six months' imprisonment with three years' probation on the original offences.  He served five months and four days of that six month sentence.

Whilst all offences of this type have serious aspects, the original offences were towards the lower end of the range of scale of seriousness.  The new offence was even less serious. The respondent pleaded guilty and cooperated with the police admitting his guilt at an early stage.

The effect of the sentences imposed when combined with the period of imprisonment already served will mean that the respondent will have served about 13 months in actual custody before becoming eligible for parole, the equivalent of a sentence of over two years imprisonment.  I am not satisfied that this sentence is inadequate.  I would dismiss the appeal against sentence.

THOMAS JA:  I agree.

HELMAN J:  I agree.

THE PRESIDENT:  The order is, the appeal against sentence is dismissed.

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