R v S; ex parte

[1998] QCA 266

[1998] QCA 266

COURT OF APPEAL

de JERSEY CJ
THOMAS J
DERRINGTON J

CA No 172 of 1998

THE QUEEN

v.

S  Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND  Appellant

BRISBANE

DATE 17/07/98

JUDGMENT

DERRINGTON J:  This is an appeal by the Attorney against a sentence of six years' imprisonment of the respondent on a count of maintaining an unlawful relationship with a child under the age of 12.

The maximum sentence permitted by the Criminal Code for this offence is 14 years' imprisonment.

The respondent was convicted at the same time of eight counts of indecent dealing with children under his care for which he was sentenced to various terms of imprisonment between three years and six years.  The maximum sentence on that count was 10 years' imprisonment.

The Court also ordered that the respondent make his address known to the police for 20 years after his release, pursuant to section 19 of the Criminal Law Sexual Offences Act.

He is 41 years of age and had a bad criminal history in respect of offences of this kind.  He had been convicted of eight counts of indecent dealing with boys under the age of 14 years in 1981, three counts of the same offence in 1984 and six counts of the same offence plus three counts of indecent dealing with a boy under 17 years in 1988.

These offences, that is, the offences the subject of this appeal, were committed over a period of one year and five months against four boys aged nine to 12 years.  Three of them were brothers and the fourth was their friend.  The respondent had befriended their parents and gained their trust, so that he was a guest in their home during school holidays.  He used this to assist him in the perpetration of these terrible offences.

The conduct consisted of manipulation of the genitals of the boys, sometimes within and sometimes outside their clothing, and there was some masturbation of them.  This conduct has caused distress to the victims and their families and there is a danger that there may be some enduring effect.  However, it was not of the most serious kind of conduct within the range of these charges.  It was non-invasive.

While he pleaded guilty to all counts, this was a fairly late decision and only after all the victims had been cross-examined in committal proceedings.  The first of the trials had been listed for hearing before he indicated his intention to acknowledge his crimes.

It would be fair to make some allowance for remorse and the saving of the trials that his acquiesence produced but it was not at the highest order.  The worst features are his persistence with these offences over a relatively long period of time, the number of children involved and his serious history of offences of this kind.

He betrayed the trust of the children's parents but that adds little to his culpability.  The learned Crown Prosecutor had argued for a sentence of seven years' imprisonment but on this application learned counsel for the Attorney argues for eight years which the Crown Prosecutor had indicated below would be appropriate for a sentence for these offences in the absence of any plea manifesting remorse.

The submissions of the Crown Prosecutor on the sentencing procedure does not bind this Court but it is a factor to be taken into account.  Notwithstanding the adverse factors mentioned above the period of imprisonment involved in the sentence here is substantial and because the offences were not of the most serious kind it cannot be said that it was outside a sound sentencing discretion.  In my opinion the application should be dismissed.

de JERSEY CJ:  I agree and will merely repeat what I said during the argument.  And that is that in view of the respondent's prior criminal history the parole board will in this case bear an especially heavy responsibility when considering any application for release on parole.

THOMAS J:  I agree.

de JERSEY CJ:  The appeal is dismissed.