R v H

[1996] QCA 210

[1996] QCA 210

COURT OF APPEAL

McPHERSON JA
DEMACK J
WILLIAMS J

THE QUEEN

v

H  Applicant

BRISBANE

DATE 05/06/96

JUDGMENT

WILLIAMS J:  The applicant pleaded guilty to a number of sexual offences.  The most serious charge was that of maintaining a sexual relationship with a child under the age of 16, a person by the name of I.

It was alleged as circumstances of aggravation that in the course of maintaining that relationship the applicant had carnal knowledge by anal intercourse with the child, and also that the child was in his care for the time being.  Because of those circumstances of aggravation that offence carried as the maximum penalty that of life imprisonment.

Next he pleaded guilty to three counts of unlawful anal intercourse with the child I.  Again, it being alleged as a circumstance of aggravation that the child was in his care.  There were then five counts of indecent treatment of the child I, being a child under the age of 16 and being a child at the material time in his care.

Finally, with respect to the child I there was a count of taking indecent photographs of a child under 16, being a child in his care.

Then there were three counts of indecent dealing with a child under the age of 16, a child by the name of B, and it is also alleged that at the material times that child was in his care.

He was sentenced to 12 years imprisonment on the charge of maintaining a sexual relationship and each of the three counts of unlawful anal intercourse.  He was sentenced to five years imprisonment on each of the eight counts of indecent treatment, and four years on the count of taking indecent photographs.  All the sentences were to be served concurrently, and there was no recommendation made with respect to parole.

At the time of the offences, the applicant was aged 49 years.  Before turning to the facts of this particular case it is desirable to refer to the applicant's relevant criminal history.

In 1968 he was convicted of an offence of indecently dealing with a boy under 14 years and placed on probation for two years.  Later in 1968, he was convicted of an aggravated assault of a sexual nature of a male child under the age of 14 years, on that occasion he was convicted and sentenced to two months imprisonment.

There are no similar offences in his record from then until April 1992.  On 10 April 1992, he appeared in the Supreme Court in Brisbane, and was dealt with for two counts of indecent dealing with a child under 16 years, a count of wilful exposure to a child under 16 years, and two drug accounts.

Mr Justice Byrne was the sentencing Judge on that occasion, and he imposed two years imprisonment with respect to the sexual offences.  In the course of his sentencing remarks His Honour said:

"It is important that the Court impose a sentence likely to suppress your appetite for adolescent boys."

The applicant was released on parole with respect to those matters in April 1993.  In the following month he performed two acts of fellatio on a 15 year old boy and had that child masturbate him.  That activity resulted in his appearing in the Brisbane District Court in September 1993 charged with indecent dealing with a child under 16, and permitting himself to be indecently dealt with by a child under the age of 16.

His Honour Judge Shanahan was the sentencing Judge on that occasion.  He sentenced the applicant to two and a half years imprisonment and recommended that he undergo medical psychiatric and psychological treatment.  In the course of his sentencing remarks on that occasion he said:

"Unless you do something about it when you come out of prison you will be at it again, and you will get caught and the authorities will come to a stage where you just can't be allowed out.  You are just going to be locked up."

The applicant was released on parole with respect to those offences on 7 November 1994.  He initially resided at a home for homeless men, then found accommodation in a rooming house at New Farm.  He sought assistance from the Brisbane City Mission in the form of food.  He then became a volunteer for the Brisbane City Mission and managed their coffee shop.  That enabled him to move into a flat in the New Farm area.

Apparently, it was known to the staff of the Brisbane City Mission that his activities in the coffee shop were likely to bring him into contact with street kids and he, that is the appellant, agreed to refer any street kids to other staff.  Those steps were taken to ensure that he was not spending time with young people at the centre.

The offences in question commenced on 1 February 1995.  It appears that on that date he met the child, I, in the Queen Street Mall.

They spoke to each other and the applicant invited the child to his residence for something to eat.  The child stayed that night and nothing happened.  Then, according to the statement made to the sentencing Judge by the Crown Prosecutor there were "discussions between the two and the child asked if he could stay on for some further time and the prisoner agreed to that.  The prisoner informed the child at that time he, the prisoner, was working at the Brisbane City Mission.  The child states that he trusted the prisoner on hearing of his employment."

Thereafter it appears that the child, I, stayed at the applicant's flat and they occupied the same double bed.  Over the period from 1 February 1995 to 15 April 1995 the offences in question were committed.  It is sufficient to say that there were what appears to be regular incidents of anal intercourse, oral sex and masturbation of each other.

It then appears that some few days prior to 15 April the other complainant, B, ran away from home.  He had previously been with his brother to the applicant's flat and had also seen the applicant at the Brisbane City Mission.  He went to the applicant's flat because he needed a place to stay.  The applicant allowed him to stay there.  On a night shortly after that the incidents occurred which gave rise to the charges involving B.  In particular, the applicant fondled the penis of the child and performed oral sex upon him.

It will be seen from that narrative that the applicant was on parole when these series of offences involving the two children were committed and that was the second occasion on which he had committed an offence of that nature whilst on parole.

It is in my view an extremely aggravating circumstance that after the warnings given by Judges on the occasion of previous sentences he committed this series of offences whilst on parole.  It is also in my view an aggravating feature that it appears that he was prepared to take up a sexual relationship with any young person who came under his control.  It is also, in my view, an aggravating circumstance that at least to some extent he used his association with the Brisbane City Mission in order to gain the confidence of the children in question.

As the learned sentencing Judge said, "The children in question were in a very vulnerable situation and you took advantage of their vulnerability."  Counsel for the applicant really only challenged the sentences of 12 years for maintaining the sexual relationship with the child, I, and the sentence of 12 years for the three counts of anal intercourse.

He submitted that in the circumstances and in the light of the authorities a sentence no higher than 10 years was called for.  In the course of argument reference was made to the recent decision of this Court in R v. A, CA 55/96, judgment delivered 29 April 1996.

There the applicant had two prior convictions for a sexual offence involving a young person.  With respect to the first offence he had been placed on probation.  On the second offence, some years later he had been imprisoned for six months to be followed by probation.

The offence which brought him before the Court on the relevant occasion was a particularly serious one.  He was charged with a number of offences involving the same young person.  There was indecent dealing, sodomy and a charge of maintaining a sexual relationship with a child under 16 with a circumstance of aggravation being that anal intercourse occurred.

He was initially sentenced to 12 years imprisonment but the Court of Appeal allowed his appeal against sentence and substituted a sentence of 10 years.  In my view, A can be distinguished from the present case if only because of the fact that these offences were committed whilst the applicant was on parole and that it was the second time that he had committed offences of this type whilst he was on parole.  It also seems to me that this applicant has been a more persistent offender than A and certainly there is less optimism in this case when it comes to the question of rehabilitation.

The applicant has not shown any remorse for the commission of these offences.  They were brought to light because the child B made an early complaint to the authorities and it was that complaint which put an end to the relationship that he was maintaining with the child I.

Counsel for the applicant sought to place emphasis on the fact that I was aged 15 and a half years and was in consequence close to the age of 16 which is the upper age limit so far as the circumstance of aggravation is concerned.  That is a relevant, but not a determining factor when it comes to a consideration of the sentence.

In all of the circumstances, I am not persuaded that the sentence is manifestly excessive.  It is at the upper end of the appropriate range but, given in particular the criminal history, I am not persuaded that it is so high that this Court should interfere with it.  I would refuse leave to appeal.

McPHERSON JA:  I agree.

DEMACK J:  I agree.

McPHERSON JA:  The application is dismissed.