R v HYQ
[2024] QCA 151
•23 August 2024
SUPREME COURT OF QUEENSLAND
CITATION:
R v HYQ [2024] QCA 151
PARTIES:
R
v
HYQ
(applicant)FILE NO/S:
CA No 34 of 2024
SC No 400 of 2023DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Brisbane – Date of Sentence: 12 February 2024 (Williams J)
DELIVERED ON:
23 August 2024
DELIVERED AT:
Brisbane
HEARING DATE:
8 August 2024
JUDGES:
Bowskill CJ and Dalton JA and Wilson J
ORDERS:
1. The applicant has leave to appeal the sentences imposed on 12 February 2024.
2. The appeal is allowed, and the sentences imposed on 12 February 2024 are set aside.
3. The applicant is convicted of counts 1 and 3, but not further punished.
4. The convictions are not recorded.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where, at a time in 2000 or 2001, the applicant supplied a drug to her adolescent cousin and facilitated his involvement in prostitution – where the applicant was not charged in relation to those offences until more than 20 years later – where the applicant pleaded guilty to the offences and was sentenced, in February 2024, to six months’ imprisonment for procuring her cousin to engage in prostitution and a concurrent three months’ imprisonment for supplying drugs to him, with both sentences wholly suspended for six months and convictions recorded – where the learned sentencing judge accepted that the applicant’s case involved exceptional circumstances for the purposes of s 9(4) of the Penalties and Sentences Act 1992, such that the applicant was not required to serve an actual term of imprisonment – where the applicant contends that, having regard to her circumstances at the time of the offending, the subsequent years of significant rehabilitation, and the effect the charges already had on her employment and living arrangements, the court ought to have imposed a sentence that did not involve the recording of a conviction – whether the sentencing judge erred by giving insufficient regard to the applicant’s mental state and the role it played in the applicant’s offending – whether the sentencing judge erred by giving insufficient weight to rehabilitation as a purpose of imposing sentence or by otherwise misapplying the principle relating to rehabilitation – whether the sentencing judge erred by adopting a two-step approach in arriving at the sentence
Evidence Act 1977 (Qld), s 132C
Penalties and Sentences Act 1992 (Qld), s 3(b), s 9(1)(a), s 9(1)(b), s 9(2), s 9(4), s 9(6), s 12(2)
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 17, s 18, s 176K, s 177, s 180, s 221(2)(b), s 226, s 295, s 296, s 298, sch 7Cadzow v The Queen [2020] SASCFC 108, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v Adam (2022) 10 QR 343; [2022] QCA 41, cited
R v Bell [1982] Qd R 216; [1981] QSCCCA 62, cited
R v Carey[2024] QCA 69, cited
R v Cockerell (2001) 126 A Crim R 444; [2001] VSCA 239, cited
R v Crabb[2014] QCA 229, cited
R v Deering[2008] QCA 209, cited
R v Duncan (1983) 47 ALR 746; [1983] WASC 210, cited
R v Goodger[2009] QCA 377, considered
R v Hawke[2021] QCA 179, cited
R v Illin (2014) 246 A Crim R 176; [2014] QCA 285, cited
R v McGrath [2006] 2 Qd R 58; [2005] QCA 463, cited
R v OAB[2024] QCA 51, cited
R v Theohares [2017] 1 Qd R 211; [2016] QCA 51, cited
R v Todd [1982] 2 NSWLR 517, cited
R v Tsiaras [1996] 1 VR 398; [1996] VicRp 26, considered
R v Verdins (2007) 16 VR 269; [2007] VSCA 102, considered
R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, considered
York v The Queen (2005) 225 CLR 466; [2005] HCA 60, citedCOUNSEL:
S J Farnden KC, with E J Coker, for the applicant (pro bono)
S L Dennis for the respondentSOLICITORS:
Jasper Fogerty Lawyers for the applicant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent
BOWSKILL CJ: At a time in 2000 or 2001, when the applicant was 24 or 25, she supplied a drug to her cousin, who was then 14 or 15, and facilitated his involvement in prostitution. She was at that time a young person with significant undiagnosed mental health challenges, dependent on drugs, working as a prostitute and using what money she earned to feed her own drug addiction. She was not told about, or charged in relation to, these offences until more than 20 years later, in June 2021. By that time, she was 46 years of age and, despite her many challenges, had managed to escape the dysfunctional, chaotic existence she had endured and, for over 20 years, engaged in valuable employment for the benefit of the community and lived a law abiding life. She pleaded guilty to the offences and was sentenced, in February 2024, to six months’ imprisonment for procuring her cousin to engage in prostitution (count 3) and a concurrent three months’ imprisonment for supplying drugs to him (count 1),[1] with both sentences wholly suspended for six months. She seeks leave to appeal the sentences on the following grounds:
(a)Ground 1: that the learned sentencing judge erred by giving insufficient regard to the applicant’s mental state, brought on by events external to the applicant, and the role that mental state played in the applicant’s offending.
(b)Ground 2: the learned sentencing judge erred by giving insufficient weight to rehabilitation as a purpose of imposing sentence or by otherwise misapplying the principle relating to rehabilitation.
(c)Ground 3: the learned sentencing judge erred by adopting a two-step approach in arriving at the sentence.
(d)Ground 4: the sentence imposed was manifestly excessive.
[1]The Crown did not proceed in relation to other counts on the indictment.
The gravamen of the applicant’s argument is that hers was a unique case, with a constellation of exceptional circumstances – her circumstances at the time of the offending; how that impacted upon the objective seriousness of the offending; the subsequent years of significant, and complete, rehabilitation; the effect the charge had already had on her employment and living arrangements; and the serious additional consequences that would flow from recording a conviction – which warranted the imposition of a sentence that did not involve the recording of a conviction.
That submission should be accepted. In my respectful view, the exercise of the sentencing discretion below miscarried due to errors of principle. In those circumstances, it is appropriate for this Court to set the decision aside and exercise the discretion afresh. In light of the fact that the applicant has, effectively, already served the sentence imposed on her at first instance, I would convict but not further punish her for the offending, and not record the conviction. But for that, I would have made an order for community service, and not recorded the conviction. My reasons are as follows.
Factual circumstances of the offending
The sentence proceeded on the basis of an agreed statement of facts. The offending occurred on unknown dates between 2000 and 2001. The applicant was aged 24 or 25, and was living in a unit with her sister and their respective boyfriends. The complainant and the applicant are cousins. He was 14 or 15 at the time, and was said to look up to the applicant. He was going through a difficult time, and was not attending school regularly, or even remaining at school when he did attend. He would often go to school, get his name marked off the roll and then leave and go to the applicant’s unit.
On one occasion when the complainant was at the applicant’s unit, they were sitting on the balcony together and the applicant “supplied him with a schedule one dangerous drug” (count 1).
As will be further addressed below, the applicant was living a chaotic, dysfunctional life at this time. She was a drug addict, working as a prostitute and “was responsible for the complainant becoming involved as well” (count 3).
The circumstances of this, as described in the statement of facts, are as follows. On one occasion, the applicant took the complainant to a particular hotel in Spring Hill, and told him he could make money there since it was a gay club. They discussed how to do this, and the applicant told the complainant he could charge $100 for oral sex. The complainant felt obliged to do this to obtain money. He approached an older man, who took him to a room upstairs, where the complainant performed oral sex on the man, and was paid $100. Afterwards, the complainant left and met the defendant at her car which was parked behind the hotel. He said he recalled giving the money to the applicant.
On another occasion, the complainant recalled being at another hotel in Fortitude Valley with the applicant. The applicant arranged for her and the complainant to have sex with an unknown man in exchange for money. They followed the man to Southbank where his ute was parked. All three of them got into the back of the ute. The man had sex with the applicant in front of the complainant, but the complainant did not end up participating. The man paid the applicant, and then the applicant and complainant returned to her unit.
On a third occasion, the applicant took the complainant to a park in Spring Hill, and said to him to go into the park to see if there was anyone around for him to have sex with, but “no transactions eventuated on this occasion”.
The complainant first went to police to make a complaint in April 2014. He completed his statement in July 2014. In May 2015, he withdrew his complaint, saying that he was battling with post-traumatic stress disorder. He reactivated his complaint in September 2016, but the investigation was closed in December 2017 due to difficulties locating the complainant and the complainant not engaging in the investigation process.
The complainant returned to the police in February 2020 and sought to reopen his complaint. Police again had trouble locating and speaking with him, and it was not until March 2021 that they were able to progress the investigation.
In May 2021, the complainant went to the applicant’s home, wearing a covert audio recording device fitted by the police. The agreed statement of facts records the following about what transpired:
“The [applicant] and the complainant had a conversation about the offending, during which the [applicant] made the following statements:
a.The [applicant] acknowledged she made money from prostitution and, in particular, bondage activities. She recalled the complainant was engaged in prostitution and that they prostituted themselves on the streets. The [applicant] expressed remorse for exposing the complainant, who was a minor, to those activities.
b.The [applicant] specifically recalled walking around Albert Park of an evening and going clubbing with the complainant before they would end up at a stranger’s house.
c.The [applicant] stated she was a drug addict at the time and was motivated to obtain drugs and money to purchase drugs. She said the complainant came along with her in that process.
d.The [applicant] admitted to introducing the complainant to street drugs but denied injecting him with heroin. When she and the complainant were together, she said, ‘it was all about amphetamines and sometimes ecstasy’.
e.The [applicant] admitted she lied to the complainant’s mother about where she and the complainant were and what they were doing.”
A victim impact statement from the complainant was tendered, which described the impact of the offending on him, including stating that he had been a happy, well-loved child prior to the offending, was exploited by the applicant, had been working as a prostitute ever since, had continued to be a drug user and had been diagnosed with complex PTSD.
Counsel for the applicant made the following submission, below, in relation to the factual basis for the sentence:
“The facts set out in the statement of facts are accepted. The basis of the plea of guilty is not that the [applicant] encouraged or procured the complainant to engage in the acts. The [applicant] was addicted to methylamphetamine and engaging in prostitution to fund that addiction. It is accepted that she facilitated the complainant’s participation in prostitution and access to methylamphetamine which was clearly illegal and inappropriate due to his young age at the time.
It is not accepted from the victim impact statement that it was the [applicant] who introduced the complainant to recreational use of drugs or that she ‘exploited’ the complainant. It is not accepted that the [applicant’s] actions have been the sole cause of the complainant’s ongoing drug addiction and engagement in prostitution.
The [applicant] was vulnerable and engaging in risky behaviour at the time of the offending conduct…”
The Crown did not challenge the factual basis outlined in defence counsel’s submissions.[2] The Crown did, however, submit that the applicant had “an appreciation of [the complainant’s] age and his vulnerability at the time” and that the principal issue was the “breach of trust”. As to that, it was accepted that the breach of trust arose as a result of the applicant “being a family member and older than the complainant”. There was no other context said to give rise to any breach of trust.
[2]Cf s 132C of the Evidence Act 1977 (Qld).
The applicant effectively had no prior criminal history – she had one conviction, from February 1996, for destruction of property and obstructing police, for which she was fined, with no conviction recorded. She has incurred no criminal convictions, recorded or otherwise, since the offending.
At the sentencing hearing, the applicant relied upon a report prepared by Dr Yoxall, psychologist, following a comprehensive psychological assessment of the applicant. The applicant is an Aboriginal woman, who was raised in Brisbane. The report notes that the applicant described “a complex family background and extensive history of trauma, including abuse and neglect, during her developmental years”. A letter from the applicant’s sister, also tendered at the sentencing hearing, corroborates that they grew up in “a very dysfunctional and unsafe family environment”, with her earliest memories involving “terror and trauma”. The applicant’s sister describes the applicant experiencing “considerable physical and emotional abuse at the hands of my father much more so than myself often in an attempt to shield me from harm”.
Dr Yoxall says that this “substantially impacted [the applicant’s] development of a sense of self and identity, her capacity for emotional regulation, her capacity for personal boundaries and her coping in relationships”.
Dr Yoxall records that, by the time she was 16, the applicant was depressed, self-harming and unable to cope. The applicant managed to finish grade 12 and enrol at university, but her mental health deteriorated. Although she obtained a Bachelor of Social Sciences degree, she did not initially work in the field due to her mental illness and substance misuse. Dr Yoxall records that the applicant “was presenting with complex psychiatric symptoms including emotional dysregulation, depression, anxiety, self-harm behaviours, frequent dissociation[3] and suicidal ideation”. She was “‘in and out’ of hospital in terms of psychiatric admissions”.
[3]The report explains that “[d]issociation refers to a mental process where a person’s thoughts, feelings, memories, or sense of identity become separated or disconnected from their conscious awareness… This phenomenon can vary in intensity and may involve a detachment from reality. Dissociation is a common coping mechanism in response to trauma, stress or overwhelming experiences. It can manifest in various forms, such as dissociative amnesia, depersonalisation, and derealisation. Dissociation impacts a person’s capacity to recall events that occurred during the dissociative episode.”
Dr Yoxall records that the applicant turned to alcohol and illicit drugs to self-medicate her symptoms. She records that the applicant could not remain at home due to the abuse she experienced there and ended up “on the streets”. By the time she was 21, she was experiencing psychotic symptoms. She received treatment at a secure (locked) psychiatric unit. The applicant subsequently received dual diagnoses of borderline personality disorder (BPD) and substance misuse. Dr Yoxall describes this as being particularly complex at the time (the late 1990s), given the understanding then of BPD as an essentially permanent, incurable condition; that people diagnosed with BPD at that time “often faced a degree of blame, rejection and even exploitation by mental health professionals”; and that there was a tension between drug and alcohol services and mental health services as to which was best placed to help a person with this combination of challenges, often resulting in refusal or limitation of services.
Dr Yoxall says that the applicant:
“describes years of psychiatric and other mental health consultations, trials of various medications, self-harm and suicide attempts, drug and alcohol abuse, drug overdoses, and hospitalisations. During this time, she struggled with homelessness, and engaged in sex work because she was not able to function sufficiently to explore other employment. She experienced substantial exploitation and abuse.”
The report records that the applicant said that she was about 24 years old when she experienced a “psychotic break”. She is said to have had persecutory delusions that people were following her and that her father was trying to poison her. She eventually engaged with a psychiatrist, who diagnosed her with complex Post Traumatic Stress Disorder (cPTSD) arising from her childhood trauma.
As Dr Yoxall says:
“Complex PTSD is a severe mental health disorder that emerges in response to long term traumatic life events (such as enduring childhood abuse, domestic violence, repeated exposures to trauma). Complex PTSD was first described in the early 1990s and is differentiated from PTSD wherein the traumatic events are of a time limited duration. The argument was that PTSD did not fully capture the severe psychological harm that occurs with prolonged, repeated trauma. In addition to re-experiencing, and avoidance symptoms, cPTSD involves behavioural difficulties (impulsiveness, acting out in terms of sexual behaviour, substance misuse and self-destructive behaviour, aggressiveness); emotional difficulties (labile affect, rage, depression, panic); cognitive difficulties (dissociation, memory disturbance); interpersonal difficulties (chaotic and tumultuous interpersonal relationships); and somatisation…”.
The psychiatrist prescribed medication for the applicant and she engaged in ongoing therapy with him for over 10 years, which she described to Dr Yoxall as “life-changing”. With the benefit of that diagnosis, and treatment, the applicant was able to “develop substantial personal insight, and was able to cease drug use”.
Eventually, the applicant was able to commence work in social and human services, a field in which she worked for some 20 years, up until she was charged with these offences. She has worked in various roles in disability; mental health; juvenile detention; domestic violence prevention, intervention and support; complex care of children, young people and families; as well as holding positions as an Indigenous mental health worker and in policy positions. She has supplemented her qualifications with graduate certificates from TAFE and a Masters in Criminology.
In about 2016, the applicant became involved in a personal relationship which resulted in her becoming the victim of serious domestic violence, including physical abuse as well as stalking and harassment, at the hands of her then partner. The experience exacerbated and reactivated her trauma symptoms. She commenced trauma counselling with a psychologist in 2018. It was during her treatment with this psychologist that the applicant was charged with the present offences. A report from the psychologist was also tendered at the sentencing hearing. The psychologist refers to the applicant’s extensive and complex trauma history, but notes that, from the commencement of her treatment, the applicant demonstrated “a commendable commitment to self-improvement, healing and growth, and a willingness to take responsibility for overcoming the impacts of her circumstances and traumatic past”.
Dr Yoxall’s report records that the applicant presented as extremely remorseful for her offending, and deeply ashamed.
As recorded by Dr Yoxall, the applicant’s recollection of the time of the offending is that the complainant was struggling to cope and was not attending school regularly. He also had a traumatic childhood. The complainant would come to the applicant’s home, and the applicant recalls wanting to support and assist him, although at that time she was “extremely dysfunctional in her behaviour”. The applicant was dependent on methamphetamine and abused other drugs as well. She shared drugs with the complainant, at his request. She recalls that he was struggling to come to terms with his sexuality at the time. The applicant says that, as a female sex worker, she would gravitate to the gay community when she was out at night working because she felt safer with gay men than heterosexual men. She often engaged in sex work prior to going to various gay nightclubs to buy and use drugs. The applicant recalls that the complainant “was curious about her engagement in sex work and wanted to accompany her when she went out at night”. She acknowledges that “she did not consider his age and her overarching responsibility to him as an adult. At the time she was focused on supporting him to accept himself and his sexuality”. The applicant does not recall in detail the events outlined in the statement of facts “but broadly agrees that, despite her intentions at the time, her conduct was unacceptable and likely damaging to [the complainant]”.
Dr Yoxall says that “during this period of her life, [the applicant] was experiencing chronic and complex mental illness, was struggling to function in most areas of her life, had very poor personal boundaries and various chaotic and tumultuous relationships”. Dr Yoxall expresses the opinion that the applicant’s “judgment at the time of the offending would have been severely impaired, not only by her own mental illness and instability, but by the impact of the drug dependence (methamphetamine) and her own trauma”.
It was soon after the time of the offending that the applicant commenced treatment with the psychiatrist, following the diagnosis of complex PTSD. As already noted, with the benefit of that treatment, the applicant was able to stabilise her life, stop using drugs and went on to engage in valuable employment, working in various roles all for the benefit of the community.
Dr Yoxall says the applicant’s risk of reoffending is “extremely low”, observing that:
“… [s]he has not used drugs now for over 20 years. She has knowledge and insight into her mental health and illness. She is engaged in psychological and psychiatric treatment. In short, [the applicant’s] level of function and insight now is fundamentally different to her functioning and insight at the time of the offending. In the two decades since the offending, she has worked hard to address her mental health and trauma history and has been committed to being a productive member of society.”
As a consequence of being charged with the offences, and consequent media reporting, the applicant lost her “blue card”[4], her employment[5] and her accommodation.
[4]A reference to a “working with children authority”, or “working with children card”, issued under the Working with Children (Risk Management and Screening) Act 2000 (Qld). Such a clearance is required to work in “regulated employment” under that Act. For present purposes, it is assumed and accepted the applicant was, prior to the charges, engaged in “regulated employment”. Where a person holds a working with children authority, and is charged with a disqualifying offence, their authority must be suspended (ss 295 and 296). The offence of procuring engagement of a young person in prostitution (s 229G of the Criminal Code) is a “disqualifying offence”.
[5]While suspended, a person may not perform work that is regulated employment (s 298).
Counsel for the applicant submitted to the sentencing judge that, if sentenced to a term of imprisonment, the applicant would be excluded from ever applying for a blue card again; but that this would not be the case if no order for imprisonment was made.
That submission was correct. The application regime under the Working with Children (Risk Management and Screening) Act 2000 (Qld) is complex. However, for present purposes it is sufficient to note that a person convicted of a disqualifying offence is a “disqualified person” (s 17). For this purpose, the person is convicted, whether or not the conviction is recorded.[6] However, if an imprisonment order is made, they are a “relevant disqualified person” (s 18). A “disqualified person” may not make a “working with children application” (s 176K), unless they obtain an “eligibility declaration” (s 177). To obtain an “eligibility declaration” the person must go through the same process as is involved in applying for a working with children clearance (s 180(2) and (3)). Relevantly, to refuse an eligibility declaration, the chief executive needs to be satisfied “it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance to the person” (s 221(2)(b) and s 226[7]). A “relevant disqualified person” cannot obtain an eligibility declaration (s 180(1)(b)).
[6]The word “conviction” is defined in schedule 7 to the Act to mean a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded.
[7]Section 226(2) of the Act sets out the things the chief executive must have regard to, in deciding whether or not there is an exceptional case for a person who has been convicted of an offence – including the nature of the offence, when it was committed, and the penalty imposed by the court and the court’s reasons.
The sentencing decision below
At first instance, the prosecutor submitted that the “key feature” of this case is “the breach of trust”. He noted that the offending had a very serious effect on the complainant. The prosecutor submitted that the seriousness of the offending and the denunciation required for it would lead the sentencing judge to impose a sentence of imprisonment, in the order of 18 months. It was also submitted, however, that given the effluxion of time and demonstrated rehabilitation, it would be open to wholly suspend that sentence. In support of the submission as to denunciation, the prosecutor relied upon the decision of R v Crabb [2014] QCA 229.
On behalf of the applicant, it was submitted that there were a number of features that “distinguish her quite drastically from all the authorities and put her squarely into a position where, whilst ordinarily features like denunciation [and general and personal deterrence] … might carry weight, [they] do not carry weight in this case”. The features emphasised were the mental health capacity issues affecting the applicant at the time of the offending;[8] the more than 23 years that had passed and the almost complete rehabilitation of the applicant over that period;[9] the significant impact a recorded conviction would have on her employment, and the effect of that on her sustained rehabilitation. It was submitted that the Court would impose either a good behaviour bond or a fine, with no conviction recorded.
[8]Referring to R v Yarwood [2011] QCA 367.
[9]Referring to R v Bell [1982] Qd R 216 and R v Illin (2014) 246 A Crim R 176.
There was an argument, below, about whether s 9(4) of the Penalties and Sentences Act 1992 applied. Section 9(2)(a) provides that, in sentencing an offender, a court must have regard to the principle that a sentence of imprisonment should only be imposed as a last resort. Section 9(4) then provides:
“Also, in sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years or a child exploitation material offence –
(a)the court must have regard to the sentencing practices, principles and guidelines applicable when the sentence is imposed rather than when the offence was committed; and
(b)the principles mentioned in subsection (2)(a) do not apply; and
(c)the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.”[10]
[10]Underlining added.
The applicant’s argument that s 9(4) did not apply relied upon the definition of the term “sexual offence”, used in the parole provisions of the Penalties and Sentences Act (part 9, division 3, ss 160B, 160C and 160D), by reference to the meaning of that term in the Corrective Services Act 2006. The offence the subject of count 3 is not a “sexual offence” within the meaning of the Corrective Services Act, nor, therefore, for the purposes of the parole provisions of the Penalties and Sentences Act. The sentencing judge rejected that argument, finding that the words “in relation to a child” in s 9(4) were broad enough to include an offence under s 229G of the Code.[11] There is no challenge to that conclusion on this appeal.[12]
[11]As her Honour noted, this interpretation was supported by the reasoning of McGill SC DCJ in R v Hodson, a sentencing decision given on 31 July 2008.
[12]The meaning of the phrase “offence of a sexual nature committed in relation to a child”, in an earlier version of s 9(4), was considered by this Court in R v McGrath [2006] 2 Qd R 58, albeit in a different context – namely, whether an offence under s 218A of the Criminal Code, of using the internet with intent to procure a child under 16 to engage in a sexual act, where no actual child was involved (the relevant communications giving rise to the offence were with undercover police officers), fell within the phrase “offence of a sexual nature committed in relation to a child”. The Court held that it did (at [36] per Mackenzie J, with de Jersey CJ and Williams JA agreeing). The sentencing judge’s conclusion in the present case, that the offence the subject of count 3 is captured by s 9(4), is consistent with this decision.
Counsel for the applicant further submitted to the sentencing judge that, even if (as was the case) her Honour found that s 9(4) did apply, the submission as to penalty remained that the particular, unique features of the applicant’s case warranted the leniency contended for. It was also submitted that, if the court considered a fine or bond did not reflect the criminality of the offending, another sentencing option was to make a community service order, which could be for up to 240 hours’ unpaid community work.[13] Once again, it was submitted that having regard to the delay, rehabilitation and the impact on that rehabilitation of imposing a sentence of imprisonment, the Court would exercise its discretion not to record the conviction.
[13]See ss 100-103 of the Penalties and Sentences Act 1992 (Qld).
Following on from the conclusion that s 9(4) of the Penalties and Sentences Act did apply, the sentencing judge found that the “correct starting point” for penalty was that an actual term of imprisonment is required unless there are exceptional circumstances. After referring to the various factors emphasised by both parties in their submissions, the sentencing judge said:
“In the current case, having concluded that count 3 is within s 9(4), the starting point for the sentence is that an actual term of imprisonment must be served unless there are exceptional circumstances. There are exceptional circumstances here. This includes the significant period of delay being the period of approximately 23 years between the offending and the sentence, the substantial steps towards rehabilitation and ongoing relapse prevention as evident in the material placed before the Court, and the impacts on your ongoing employment, together with the mitigating features of your personal circumstances.
The mitigating features reduce to a significant extent both general and personal deterrence. On the evidence, the steps you have taken almost entirely extinguish the need for rehabilitation. Denunciation remains as the key consideration in the current sentence.
The seriousness of the offending is not directly reduced by the mitigating factors. The impact on the complainant is clear from the victim impact statement.
The sentence imposed needs to reflect the seriousness of the offending and make it clear that the community denounces this sort of conduct in which you were involved.
But for your personal circumstances and the significant delay, offending of this nature may involve a sentence of a term of imprisonment and the requirement to serve actual time in prison. However, your personal circumstances and the impact of the considerable delay establishes exceptional circumstances such that actual time imprisonment is not required.
However, the question then remains, what is the appropriate sentence in all of these circumstances?
In all the circumstances, I do not consider that a bond or a fine as proposed by your counsel properly reflects the seriousness of the offending, the impact on the complainant and the need for denunciation.
Balancing the various factors, the appropriate sentence to be imposed is that of a term of imprisonment for a short period of time in respect of both counts, wholly suspended.”
Turning then to the grounds on which leave is sought to appeal this decision.
Ground 1 – the applicant’s mental state at the time of the offending
By ground 1, the applicant contends the sentencing judge erred by giving insufficient regard to the applicant’s mental state, brought on by events external to the applicant, and the role that mental state played in the applicant’s offending.
The respondent submits that ground 1 raises no error of principle, as the weight to be given to any particular factor was a matter for the sentencing judge in the exercise of the sentencing discretion.[14] I disagree. The error of principle underpinning ground 1 is not concerned with the “weight” given to the applicant’s mental state but rather is concerned with whether the principles established in cases such as R v Tsiaras [1996] 1 VR 398, R v Verdins (2007) 16 VR 269, R v Goodger [2009] QCA 377 and R v Yarwood [2011] QCA 367 were correctly applied.
[14]See, for a decision in which that was accepted to be the case, R v Carey [2024] QCA 69 at [29].
Those principles were summarised in R v Adam (2022) 10 QR 343 at [41]-[45], as follows:
“[41] Whenever an offender suffers from a mental impairment or disorder, there are settled principles to be applied in the consideration of a just sentence. In R v Tsiaras,[15] the Victorian Court of Appeal stated:[16]
[15][1996] 1 VR 398.
[16]Ibid 400.
‘Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner’s legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health’.
[42]Later in R v Verdins,[17] the Victorian Court of Appeal observed that the sentencing considerations identified in Tsiaras were not applicable only to cases of ‘serious psychiatric illness’. The Court observed:[18]
[17](2007) 16 VR 269, 271.
[18]Ibid.
‘One or more of those considerations may be applicable in any case where the offender is shown to have been suffering at the time of the offence (and/or to be suffering at the time of sentencing) from a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness.’
[43]The Court went on to reformulate the principles identified in Tsiaras as follows:[19]
[19]Ibid 276.
‘Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.’
[44]In terms of the extent to which impaired mental functioning may reduce moral culpability, the Court relevantly observed:[20]
[20]Ibid 275.
‘It is of the nature of the sentencing discretion that views will differ as to how, and to what extent, impaired mental functioning may reduce the blameworthiness of the offender’s conduct. The effect on the court’s assessment of culpability will, of course, vary with the nature and severity of the condition, and with the nature and seriousness of the offence. It is not appropriate for an appellate court to be prescriptive in this regard, nor is it possible to be exhaustive. It may assist sentencing judges, nevertheless, if we list the various ways in which impaired mental functioning has been held – correctly, in our view – to be capable of reducing moral culpability.
Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of:
(a) impairing the offender’s ability to exercise appropriate judgment;
(b) impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d) impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; or
(f) contributing (causally) to the commission of the offence.’
[45]In R v Goodger,[21] Keane JA (with whom Fraser JA and Atkinson J agreed) referred to Verdins with apparent approval and also observed:
‘This Court has accepted the proposition that, generally speaking, a mental disorder short of insanity may lessen the moral culpability of an offender and so reduce the claims of general or personal deterrence upon the sentencing discretion.’”[22]
[21][2009] QCA 377 [19]-[21].
[22]Footnotes in original. Underlining added.
As explained by White J in R v Yarwood [2011] QCA 367 at [34],[23] the reason why reduced moral culpability may affect the exercise of the sentencing discretion, in terms of limiting the relevance of deterrence and denunciation, is because deterrence, in the sense of deterring other offenders, and vindicating the community’s need to punish for wrongdoing (denunciation), has limited application where the offender suffers from a mental disorder, for the reason that “such a person is much less able than others not so afflicted to make sound judgments about conduct”. As her Honour also said, at [34]:
“The courts in Australia, as discussed in Verdins[24], have readily accepted that moral culpability for an offence as distinct from the offender’s legal responsibility for it might be reduced by mental illness. There seems little doubt that the applicant’s diagnosed psychological and psychiatric conditions contributed directly to his offending. His ability to exercise appropriate judgment, think clearly, and fully appreciate the wrongfulness of his conduct seems to have been grossly impaired. That is not to say (as the applicant comes close to submitting in some places in his written submissions) that he was not criminally responsible for his conduct. But if fellow practitioners and the public were aware of the extent of his illness they would not require condign punishment to be imposed, rather the punishment should be ameliorated.”[25]
[23]A case which concerned fraudulent offending by a legal practitioner.
[24](2007) 16 VR 269 at [23]-[26].
[25]Underlining added.
In the present case, the material before the Court supported the finding that the applicant’s mental disorder, at the time of the offending (including but not limited to undiagnosed complex PTSD) contributed causally to the offending, in a number of the senses referred to in Tsiaris,[26] by impairing the applicant’s ability to exercise appropriate judgment and to make calm and rational choices or to think clearly, by making her disinhibited and impairing her ability to appreciate the wrongfulness of her conduct.[27] By way of summary, Dr Yoxall says in her report that:
“1.[The applicant] is the survivor of protracted and severe childhood abuse and neglect. She was a teenager when psychopathology initially emerged and between the age of 16 and 25 years, she struggled with complex and acute mental illness, substance dependence (as a form of self medication) and spent her time oscillating between homelessness, sex work, mental health services and psychiatric admissions. It was in this context that the index offending occurred. The victim was [her] adolescent cousin.
2.All information available indicates that [the applicant’s] judgement at the time of the offending would have been severely impaired, not only by her own mental illness and instability, but by the impact of the drug dependence (methamphetamine) and her own trauma. There is a growing literature on the relationship between early trauma, mental illness and offending in women which discusses various forms of offending including drug offending and offending arising from poor boundaries in relationships and interpersonal dysfunction…”
[26]In the passage set out in R v Adam at [44], quoted above.
[27]The evidence is contained in Dr Yoxall’s report, at pages 4-5, 9 and 22-23.
The applicant’s mental disorder should be accepted as having causally contributed to the offending.[28] Her moral culpability – as distinct from her legal responsibility – for the offending is significantly reduced for this reason. The sentencing judge appears to have accepted this, when her Honour said:
“Given the mental health issues and drug use that have been identified in the report of Dr Yoxall, the extent to which you are to blame for the offence is not of particular relevance.”
[28]Cf the conclusion reached in R v Carey [2024] QCA 69 at [36]-[37], where the evidence was to the effect that the offender’s PTSD may have caused difficulties controlling his impulses and temper, but the offending behaviour was not an impulsive response, rather, it was the result of a decision involving an element of retribution. Cf also the conclusion in R v Adam (2022) 10 QR 343 at [49], where the psychologist’s report did not express a clear or cogent opinion about whether any mental conditions had caused the offending.
Although, her Honour went on to say:
“It remains that this is a serious offence with a maximum term of imprisonment of 14 years. The offending occurred in the particular circumstances of a breach of trust as you were a cousin of the complainant, you were in a position of responsibility vis-à-vis the complainant, and you were approximately 10 years older than the complainant. Whilst your responsibility can be considered to have been reduced as a result of your own mental health issues and your drug abuse, it does not completely extinguish that consideration.”
Notwithstanding the statements of principle referred to above, which the sentencing judge alluded to in the course of the sentencing remarks, and the apparent acceptance of the applicant’s reduced moral culpability (blameworthiness) for the offending, due to mental disorder, the sentencing judge nonetheless proceeded on the basis that “[d]enunciation remains as the key consideration”. That seems to have been on the basis of the objective seriousness of the offending and the impact on the complainant. But the decision contains no explanation as to why, in the face of statements of principle such as appear in Tsiaris and Verdins (set out above), denunciation would remain the “key consideration”. What those authorities establish is the opposite – that where the court is satisfied the applicant’s moral culpability is relevantly reduced due to causative mental disorder, not only will this affect the sentencing outcome that is just in all the circumstances but “denunciation is less likely to be a relevant sentencing objective”.
Being encouraged by the Crown prosecutor to do so, the sentencing judge relied upon the decision in R v Crabb as supporting the identification of denunciation as the key consideration. That was misplaced. Crabb concerned an offender convicted of five counts of procuring prostitution of a young person, 44 counts of indecent treatment of a child, six counts of supplying a dangerous drug to a child and 17 counts of procuring a young person for carnal knowledge. The offending occurred over a five year period, during which the offender worked as a prostitute from her home. She befriended five young, vulnerable teenage girls and organised for them to work as prostitutes both with her and on her behalf; one of them, E, from the age of 15 for five years. The offender regularly supplied the girls with drugs and alcohol. As the prosecutor acknowledged, Crabb is a far more serious case. It is not comparable in any way to the applicant’s offending. The reference to denunciation in Crabb appears in [5] of the reasons of McMurdo P, who otherwise agreed with the reasons of Lyons J who wrote the primary judgment:
“The serious nature of the offending which took advantage of immature, troubled young women warranted a substantial head sentence to adequately reflect principles of community denunciation and personal and general deterrence…”
Relevantly, although the offender in Crabb was described as having “a history of abusive relationships and drug use … a learning disability, probable low IQ and symptoms of post-traumatic stress disorder” (at [37]), there was no mention of any impaired mental functioning, or mental disorder, of the offender being causally related to the offending, such as to invoke the principles discussed in Tsiaris and Verdins. This is a significant distinguishing feature from the present case.
The sentencing judge, again on the submissions from the Crown prosecutor, proceeded on the basis that “Yarwood mental health issues”, which I would take as a reference to causative mental disorder, “don’t impact on the seriousness of the offending”, and that the “the sentence must still reflect the offending”. This, also, fails to properly apply the principles as articulated in Tsiaris and Verdins. The objective seriousness of the offending does not change. But where the court is satisfied the applicant’s moral culpability is relevantly reduced due to causative mental disorder, this does affect the sentencing outcome that is just in all the circumstances,[29] and could appropriately result in the imposition of a penalty that might appear lenient, having regard to the objective seriousness of the offending; but not when having regard to the subjective matters personal to the offender which have reduced their moral culpability.
[29]See s 9(1)(a) of the Penalties and Sentences Act 1992.
The sentencing judge’s approach to this aspect of the sentencing discretion reveals an error of principle of the first kind identified in House v The King.[30]
[30](1936) 55 CLR 499 at 505.
Ground 2 - rehabilitation
By ground 2, the applicant contends the sentencing judge erred by giving insufficient weight to rehabilitation as a purpose of imposing sentence or by otherwise misapplying the principle relating to rehabilitation.
Again, the respondent contends this identifies no error of principle. I agree, in so far as the first part of ground 2 is concerned; but not the second part. The error of principle, which it is submitted the sentencing judge made, was to proceed on the basis that because the applicant’s rehabilitation was complete, rehabilitation was no longer relevant as a purpose of sentencing, under s 9(1)(b) of the Penalties and Sentences Act.
That this was the view of the sentencing judge appears from observations made during the sentencing hearing itself, and in her Honour’s sentencing remarks.
In the course of the sentencing remarks, the sentencing judge observed that:
“Given the substantial steps that you have taken towards rehabilitation, it is plain that this is not a case that calls for an extended period of supervision in the community in order to assist you with rehabilitation. You have been successful to date not only in becoming drug free, but also preventing relapse when faced with the difficulties associated with the current charges being brought against you.
The issue of delay is to be considered in the context of the matters identified by Parliament in s 9 of the Penalties and Sentences Act. Given the substantial steps that have been taken towards rehabilitation, the purpose in s 9(1)(b) does not loom large in the current case.”
There can be no complaint about the sentencing judge’s conclusion that the sustained and complete rehabilitation of the applicant, over the period of 23 years from the time the offences were committed, meant that there was no need for any sentencing order to provide for ongoing supervision of her. It is also clear that the sentencing judge properly took into account the applicant’s rehabilitation in being satisfied that there were “exceptional circumstances” for the purposes of s 9(4)(c). But having taken the applicant’s rehabilitation into account in that way, indeed finding that “the steps [the applicant had] taken almost entirely extinguish the need for rehabilitation”, her Honour did not then give consideration to whether the sentence imposed might jeopardise that rehabilitation. This involved an error of principle.
The purposes of the Penalties and Sentences Act, include, under s 3(b):
“providing for a sufficient range of sentences for the appropriate punishment and rehabilitation of offenders, and, in appropriate circumstances, ensuring that protection of the Queensland community is a paramount consideration”.[31]
[31]Underlining added.
This statement of the purposes of the Act reflects the common law’s conception of the “purposes of punishment”. As articulated by McHugh J in York v The Queen (2005) 225 CLR 466 at [21] “[s]entences are imposed to further ‘the public interest’[32] – which may include the rehabilitation of the prisoner – and to enhance the liberty of society by ensuring ‘the protection of society’ from the risk of a convicted criminal re-offending or others engaging in similar criminal activity”.
[32]Referring to R v Ball (1951) 35 Cr App R 164 at 164.
Such is the importance of rehabilitation, to the protection of the community, that it appears as one of the five purposes for which sentences may be imposed on an offender. In that regard, s 9(1) of the Penalties and Sentences Act provides:
“(1)The only purposes for which sentences may be imposed on an offender are –
(a)to punish the offender to an extent or in a way that is just in all the circumstances; or
(b)to provide conditions in the court’s order that the court considers will help the offender to be rehabilitated; or
(c)to deter the offender or other persons from committing the same or a similar offence; or
(d)to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or
(e)to protect the Queensland community from the offender; or
(f)a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e).”
It is implicit in the language used in s 9(1)(b) that the court must consider not only whether conditions of a proposed sentence order will promote an offender’s rehabilitation, but also whether they might jeopardise the offender’s rehabilitation.[33] The principle was articulated by Chernov JA in R v Cockerell (2001) 126 A Crim R 444,[34] as follows:
“The courts have ... recognised that such delay which, as here, cannot be attributed to the offender, constitutes a powerful mitigating factor at a number of levels …. First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation.”[35]
[33]See, for example, R v Hawke [2021] QCA 179 at [54]-[55] and [117].
[34]Referred to by Maxwell P in R v Tibucy; R v Gardiner; R v Zeuschner (2006) 166 A Crim R 291 at 292; and cited with approval by Fraser JA (with whom McMurdo P and Mackenzie AJA agreed) in R v Phillips & Woolgrove [2008] QCA 284 at [53].
[35]Underlining added.
This principle was applied by this Court in R v Illin (2014) 246 A Crim R 176[36] at [19]-[21], with Fraser JA (with whom Morrison JA and Henry J agreed) also referring to the observation by Street CJ in R v Todd [1982] 2 NSWLR 517 at 519-20 that “passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the … sentence; at times that can require what might otherwise be a quite undue degree of leniency being extended”.
[36]A case in which the delay between arrest and sentence was (only) three years, and during which the offender had ceased using drugs.
In R v Bell [1982] Qd R 216,[37] Dunn J suggested the question might be posed in the following way:
“When it has been demonstrated by evidence that society does not need to be protected from the applicant, should the punitive and deterrent aspects of the sentencing process be allowed to prevail, and possibly destroy rehabilitation which has been shown to have taken place?”
[37]A case in which a solicitor was convicted, on his pleas of guilty of offences of fraudulent disposal of trust property, it was accepted that the offences resulted from “the operation of deficiencies in the applicant’s physical and, in consequence, mental constitution”, there was a lengthy delay until sentence and he had succeeded in rehabilitating himself to a remarkable degree.
That approach was referred to with approval by the Western Australian Court of Criminal Appeal in R v Duncan (1983) 47 ALR 746 at 749 and, more recently, by the South Australian Court of Criminal Appeal in Cadzow v The Queen [2020] SASCFC 108 at [36]. Of course, all will depend on the circumstances of the particular case, including the nature and prevalence of the offence.[38]
[38]Cf R v Ross [2012] QCA 247 at [12] and [13], as to the importance of deterrence in particular kinds of cases (in Ross, a home invasion offence) and R v Deering [2008] QCA 209, which involved serious sexual offending by a person in the position of a father figure against the complainant over a period of five years, when she was aged 3 to 8.
Having formed the view that the applicant’s significant efforts to rehabilitate herself had “almost entirely extinguished the need for rehabilitation”, the sentencing judge does not appear to have considered whether the order proposed would have a deleterious impact on that rehabilitation.
In that regard, it appears that her Honour regarded the circumstance surrounding the applicant’s blue card as, essentially, neutral. Her Honour observed that, if a sentence of imprisonment were imposed, even if wholly suspended, this would result in the applicant being disqualified from holding a blue card; but went on to say that “[e]ven if a bond or fine were imposed, the offending would need to be declared, and exceptional circumstances would need to be established to obtain a Blue Card”.
The circumstances surrounding the applicant’s blue card were not neutral. Her continued employment, in the field in which she has worked for some 20 years, depends upon her holding a “blue card”. If sentenced to imprisonment, she could never apply for a blue card again. If not sentenced to imprisonment, and if the conviction was not recorded, the applicant could apply. She would have to persuade the chief executive that she poses no risk to children, but she would at least have the opportunity to do that.
Another consequence of the imposition of a period of imprisonment, and consequent recording of the conviction, is that the applicant became subject to the onerous reporting requirements under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld).
Once the sentencing judge was satisfied, for the purposes of s 9(4) of the Penalties and Sentences Act, that there were “exceptional circumstances”, the full statutory range of potential sentencing orders was available, including one that did not include the recording of a conviction.[39] Her Honour appears to have been cognizant of this, in a general sense – probation was referred to in the course of the submissions, but discounted as unhelpful because there was “no evidence to suggest that supervision would have any utility”; and, in the sentencing decision, a bond or a fine was rejected as not “properly reflect[ing] the seriousness of the offending, the impact on the complainant and the need for denunciation”. However, her Honour did not address the other alternative proposed by counsel for the applicant, which was to make a community service order. Nor, as I have said, was consideration given to the impact that imposing a term of imprisonment, and recording a conviction, would have on the applicant’s [ability to maintain her] rehabilitation.
[39]R v OAB [2024] QCA 51 at [22].
The failure to consider the impact of the proposed sentencing order on the maintenance and continuance of the applicant’s reform and rehabilitation also involved an error of principle in the exercise of the sentencing discretion.
Ground 3 – two stage process?
The applicant next contends that the sentencing judge erred by adopting a two-step approach in arriving at the sentence. In particular, it is submitted that the sentencing judge fell into the error identified in R v Theohares [2017] 1 Qd R 211 at [15]-[18], of first considering whether exceptional circumstances existed and then considering what the appropriate sentence was; rather than considering the question of exceptional circumstances as but one part of the overall process of “instinctive synthesis” involved in exercising the sentencing discretion.
The applicant relies on the passage from the sentencing remarks extracted at paragraph [40] above to establish this point.
It does appear from that passage that the sentencing judge has, inadvertently, fallen into this error. This is demonstrated by the fact that, in the manner in which the sentencing remarks are articulated, the sentencing judge has taken the mitigating circumstances favourable to the applicant (her personal circumstances, the significant delay and the substantial steps towards rehabilitation) into account in arriving at the conclusion that exceptional circumstances exist. Being satisfied of that, her Honour then says “the question then remains, what is the appropriate sentence in all of these circumstances?”. It appears as though, having “used up” the value of the powerful mitigating factors in arriving at the “exceptional circumstances” decision, the sentencing judge proceeded on the basis that they did not have a role to play in determining the appropriate sentence. That, too, was an error.
Leave to appeal should be granted
Each of grounds 1, 2 and 3 is established. In light of the conclusion reached in relation to those grounds, it is unnecessary to separately address ground 4. As the sentencing decision below is affected by errors of principle, it is appropriate to grant leave to appeal the decision, set aside the decision and for this Court to re-exercise the sentencing discretion.[40]
[40]Kentwell v The Queen (2014) 252 CLR 601 at [35] and [42].
Re-exercise of the sentencing discretion
The applicant is to be sentenced for one count of supplying a drug to a child under 16, for which the maximum penalty is 25 years imprisonment, and one count of procuring engagement of that young person in prostitution, for which the maximum penalty is 14 years imprisonment. Her plea of guilty was accepted as an early one, demonstrating cooperation and, I would add, genuine remorse.
Because s 9(4) of the Penalties and Sentences Act applies, s 9(6) instructs that the sentencing court “must have regard primarily to –
(a)the effect of the offence on the child; and
(b)the age of the child; and
(c)the nature of the offence, including, for example, any physical harm or the threat of physical harm to the child or another; and
(d)the need to protect the child, or other children, from the risk of the offender reoffending; and
(e)any relationship between the offender and the child; and
(f)the need to deter similar behaviour by other offenders to protect children; and
(g)the prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community; and
(h)the offender’s antecedents, age and character; and
(i)any remorse or lack of remorse of the offender; and
(j)any medical, psychiatric, prison or other relevant report relating to the offender; and
(k)anything else about the safety of children under 16 the sentencing court considers relevant”.
Although s 9(4)(b) provides that the principle in s 9(2)(a) (that a sentence of imprisonment should only be imposed as a last resort) does not apply, that does not make s 9(2) wholly irrelevant.[41] Whilst there is an overlap between many of the provisions of s 9(2) and those in s 9(6), there are additional matters in s 9(2) which warrant consideration, including:
(a)the extent to which the applicant is to blame for the offence, in the sense of her moral culpability;
(b)the applicant’s character and age, particularly in light of the significant delay;
(c)the hardship that any sentence imposed would have on the applicant, particularly one involving a term of imprisonment and recorded conviction;
(d)the significant mitigating factors – including her early plea of guilty, the substantial delay and sustained rehabilitation;
(e)the applicant’s history of trauma, resulting in complex mental disorder at the time of the offending; and
(f)that the offence, particularly of procuring engagement in prostitution is not prevalent.
[41]R v McGrath [2006] 2 Qd R 58 at [37] per Mackenzie J.
The circumstances in which the offences were committed have been outlined in detail earlier in these reasons. Offending of this kind is very serious, involving as it does causing harm by the exposure to a dangerous drug, as well as the potential to introduce a young person to the perils of drug addiction; let alone exposing a young person to the complexity of paid sex work before they have had the opportunity, as an adult, to make an informed choice about their own sexual relationships. However, it should be accepted that the applicant did not introduce the complainant to drugs for the first time (as she contends, and was not disputed by the Crown) and that she facilitated the complainant’s participation in prostitution, as opposed to actively encouraging, let alone demanding or forcing him to do so – placing the circumstances of this offending, on both counts, at the lower end of the scale of their objective seriousness.
It should be accepted that the offending caused harm to the complainant. He was an impressionable adolescent, aged 14 or 15 at the time, with his own troubles, who looked up to the applicant and appears to have thought her lifestyle desirable; even though it can now be seen that it was anything but. I cautiously observe that some care must be taken in relation to the weight to be given to victim impact statements tendered at sentencing hearings. That is not intended to diminish the impact of harm on a victim of offending, such as the complainant in this case; nor the therapeutic benefit of enabling such a person to articulate for the court the subjective impact of the offending on them, or the importance of the court understanding that impact. But the statement tendered in this case contains material that appears to overstate some aspects; matters which are not reflected in the agreed factual basis for the sentence (such as the complainant’s parents entrusting his care to the applicant; that the applicant “exploited” him; or that all of the difficulties he has experienced in his life since are attributable to the applicant). Some care is therefore required, before accepting the statement unquestionably, or allowing it to overwhelm other features of the case.
As morally reprehensible as both offences unquestionably are, for the reasons already discussed the applicant’s moral culpability for them is significantly reduced, having regard to the causative mental disorder she suffered at the time of the offending. It follows that, whilst ordinarily factors such as general deterrence and denunciation would be of importance, they are not so in considering the just sentence to impose on the applicant. I emphasise that this conclusion takes into account the nature of the offending in this case,[42] as well as the applicant’s causative mental disorder, addressed in the report of Dr Yoxall.
[42]Cf again R v Deering [2008] QCA 209 (referred to in footnote 52 above) as an example of a case where the nature of the offending (serious sexual offending against a young child over the period of five years) was such that a custodial sentence was required, regardless of other mitigating factors, including delay and rehabilitation.
In light of those circumstances, as well as the applicant’s subsequent diagnosis and treatment for complex PTSD, the length of time that has passed (now approaching 25 years) and the sustained and effective efforts at rehabilitation undertaken by the applicant, it is appropriate to conclude that the applicant poses no risk to other children of reoffending in a similar manner.
The applicant has demonstrated, by her conduct over more than 20 years, her ability to rehabilitate herself from the conditions that lead to her offending and, substantially, behave in a way acceptable to the community.
The circumstances of this case are unquestionably exceptional, for the purposes of s 9(4) of the Penalties and Sentences Act. Indeed, the description by her counsel of the collection of mitigating factors as “unique” is not misplaced. That conclusion means all sentencing options are available for consideration, in terms of what is a just punishment in all the circumstances (s 9(1)(a)).
Having regard to all the circumstances, including the nature and seriousness of the offences, the impact of them on the complainant, the finding that the applicant suffered from causative mental disorder at the time she committed the offences, which reduces her moral culpability, the significant delay before she was charged and then sentenced, the remarkable rehabilitation and reform the applicant has been able to demonstrate over the more than 20 years since the offences were committed, and the impact that imposing a term of imprisonment (even if wholly suspended) and the automatic recording of a conviction would have on her ability to continue in her established employment, in my view, a just punishment in this case is one that does not involve recording a conviction.
If I were dealing with this at first instance, I would make an order for community service, for the maximum of 240 hours. That would provide a tangible punishment, requiring effort on the part of the applicant and a contribution to the community, appropriate to mark the seriousness of the offences she committed. It is rational to conclude that probation would be of little utility, for a person such as the applicant who has already demonstrated insight into her own challenges and a willingness to seek assistance, without the need for supervision. Neither a fine nor a good behaviour bond present as appropriate sentencing outcomes, in the circumstances of this case.
But the fact is that the applicant has served, albeit in the community, the term of imprisonment imposed on her. In those circumstances, it seems unjust to now make a community service order, which would serve as an additional punishment.
If the sentencing order imposed were a community-based order, the Court would have a discretion whether to record the conviction. The exercise of that discretion is governed by s 12(2) of the Penalties and Sentences Act, which requires the court to have regard to all the circumstances of the case, including the nature of the offence, the offender’s character and age and the impact that recording a conviction will have on the offender’s economic or social wellbeing or chances of finding employment. For the reasons already addressed at length above, it is appropriate to exercise the discretion in this case not to record the conviction, given the patently damaging effect that would have on this applicant’s economic and social wellbeing and chances of finding employment in her established field, with a resultant potential impact on her sustained rehabilitation.
Accordingly, the orders I propose are:
(a)The applicant has leave to appeal the sentences imposed on 12 February 2024.
(b)The appeal is allowed, and the sentences imposed on 12 February 2024 are set aside.
(c)The applicant is convicted of counts 1 and 3, but not further punished.
(d)The convictions are not recorded.
DALTON JA: I agree with the orders proposed by Bowskill CJ and with her reasons.
WILSON J: I agree with the Chief Justice.
19
3