R v SAQ

[2002] QCA 221

[2002] QCA 221

COURT OF APPEAL

DAVIES JA
  WHITE J
  WILSON J

CA No 62 of 2002

THE QUEEN

v.

SAQ  Appellant

BRISBANE

..DATE 21/06/2002

JUDGMENT

1

21062002 D.1  T4/PAF23 M/T COA147/2002

DAVIES JA:  I will ask Wilson J to deliver her reasons

first.

WILSON J:  This is an application for leave to appeal

against sentence.  The applicant pleaded guilty to one count

of indecent treatment of a child under 16 with a

circumstance of aggravation, namely, that the child was

under 12.  The offence was committed on the 29th of December

2000.  The child was a 7 year old girl.  The sentence

imposed was three years' imprisonment with no recommendation

for early eligibility for parole.

The applicant was born on the 21st of December 1959.  At the

time of the offence he was a computer programmer by

occupation. 

The applicant was the complainant's uncle by marriage.  The

child's mother dropped her and her brother off at "Aunty

[M]’s" place so that they could spend time with their

cousins.  Aunty M was the applicant's ex‑wife and the

cousins were the four children of that marriage.

The applicant came to his ex‑wife's house to visit his

children.  The complainant's mother was aware that the

applicant had previously been sent to prison for child

molestation.  However, she understood that her children and

the applicant's would be supervised at all times they were

in the company of the applicant.

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In the computer room of the house, the applicant placed his

hands inside the complainant's shorts and underwear and

touched her on the vagina on five separate occasions within

a relatively short space of time.  There was no digital

penetration.  The child tried unsuccessfully to get away. 

She later said that it felt "really nasty".  Since this

happened, she has become distrustful of others, especially

males.  According to her mother, she has become introverted

and "clingy", and given to outbursts of anger.  She has

undergone counselling.

The applicant had a history of similar offences.  On the 8th

of April 1989 he committed the offence of aggravated assault

of a sexual nature upon a child of 10 by touching her

vagina.  He was sentenced to two years' probation and 240

hours' community service.  Then on the 27th of September

1992 he committed two offences of indecent dealing with a

child under 12, namely a girl aged 9 whose vagina he

touched.  He was sentenced to three years' imprisonment

which was reduced on appeal to two years.

According to Dr Ian Curtis, his treating psychiatrist, he

has the clinical disorder of paedophilia and a personality

disorder, schizoid schizotypal personality.  His offending

has been intermittent and stereotypical, at times when he

has had no adult female partner, or when he has been in the

throes of being rejected by an adult female partner.  He was

responding well to chemical castration with the anti‑

testosterone Androcur.

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  The sentencing Judge expressed some concern that the

applicant might not continue to take his medication and

concern that he might reoffend.  He recommended that he

continue to receive treatment.  He took account of the

guilty plea which had saved the child the ordeal of giving

evidence, and of the need for deterrence and protection of

the community.  He said that in the ordinary course with a

plea of that nature he would have been inclined to recommend

release on parole after a period of 12 months.  However, he

refrained from doing so, considering it a case where the

prison authorities needed to consider the applicant's

behaviour in prison and to give careful consideration to the

question whether he imposed a risk to young children if

granted early release.  He imposed a reporting condition.

The application to this Court was brought on the ground that

the sentence was manifestly excessive.  The maximum penalty

which might have been imposed for such an offence was 14

years' imprisonment.  This was conduct within the lower end

of the range of this type of offending.  That the applicant

had a relevant criminal history did not aggravate the

criminality, but it was a reason for not extending leniency.

We were referred to the decision in R v M, CA No. 225 of  

1995; 27 July 1995.  M pleaded guilty to seven counts

of indecent treatment of a child under 16.  In each case

there were two circumstances of aggravation:  the child was

under 12 and the child was for the time being under his

care.  The conduct was more serious than in the present 

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21062002 D.1  T4/PAF23 M/T COA147/2002
  case.  The applicant was then 39 and the child, his

stepdaughter, was 8.  The offences were committed when his

wife was absent from the family home.  The first three

counts arose out of an incident in which he exposed the

child to an indecent videotape, touched and licked her

genitals, and had her touch and suck his penis.  The other

three counts arose out of another incident in which he again

exposed the child to an indecent videotape, touched and

sucked her genitals and touched her in the area of her anus,

and had her suck his penis.  On that occasion his erect

penis touched her crutch area and he ejaculated over her

body.  A seventh count arose out of an incident in which he

took his clothes off and masturbated in front of her, again

ejaculating over her body.  At the time, the maximum penalty

for those offences was ten years' imprisonment.  Mathers had

no relevant criminal history.  The sentence of three years'

imprisonment on each count (to be served concurrently) was

upheld on appeal.

The other case cited, Nash, [2001] QCA 543, 28 November

2001, involved four counts of indecent dealing with a boy

under the age of 16 years.  The circumstances were quite

different from the present offence and I did not find that

decision helpful.

The only truly comparable case cited to the Court was the

earlier decision concerning this applicant.  The facts there

were very similar to the those in the present case.  At

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the time, the maximum penalty was ten years.  As I have

said, it is now fourteen.  The sentence of three years was

reduced to two years on appeal.  There was no recommendation

for eligibility for parole for reasons similar to those

expressed by the sentencing Judge in the present case.

Counsel for the applicant submitted that the range within

which the sentence should have been imposed was two to three

years.  He submitted that the sentence which should have

been imposed was three years' imprisonment with a

recommendation for community‑based release after twelve

months or, in his oral submissions, that it should be

reduced to two and a‑half years to take account of the

guilty plea.

Counsel for the respondent submitted that the appropriate

range was two and a‑half to three years' imprisonment and

that the sentence imposed was appropriate.

Pursuant to section 13 of the Penalties and Sentences Act,

in imposing a sentence on an offender who has pleaded guilty

a Court must take the guilty plea into account, and may

reduce the sentence that it would have imposed had the

offender not pleaded guilty.  In this case, the effect of

the guilty plea was not only to express remorse and to save

the community expense.  Perhaps more significantly it was to

save the young complainant child the ordeal of giving

evidence.  These are powerful factors.

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A common way of reducing the sentence is to make a

recommendation for early eligibility for parole.  However,

it can never be any more than a recommendation.  The parole

decision is always one for the parole authorities to make in

the light of factors such as the prisoner's conduct during

his imprisonment and the risk of reoffending.  It would, in

my respectful view, be wrong to use those factors as a

reason for not making a recommendation.

However, as I have said, this was a case of an applicant

with a past history of very similar offending and it was not

a case where leniency was called for in all the

circumstances.  Although the sentence imposed was at the top

of the range, I would be disinclined to interfere.  I would

dismiss the application for leave to appeal.

DAVIES JA:  In my opinion, the sentence which was imposed     was, having regard to the previous conduct of the applicant   and the offences looked at in the light of that previous     conduct, not at the very top of the range, and his Honour     took into account the plea of guilty, it seems to me, by     reducing the sentence from the top of the range to something   a little below the top of the range, namely three years.

I do not think in those circumstances that the sentence      which was imposed was outside the range of the discretion     open to his Honour and for that reason I would agree with     the reasons given by Justice Wilson.

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21062002 D.1  T5/SLF18 M/T COA147/2002

WHITE J: It is essential that offenders, particularly where the offences constitute sexual offences against children should be encouraged to plead guilty by the application of section 13(1)(b) of the Penalties and Sentences Act.

In this case there were factors which would suggest a        reduction ought to have been made, an early plea, immediate   recognition of guilt and expression of remorse and sparing    the child cross-examination.

Although his Honour said that he took these matters into     account the sentence is near the top of the range by         reference to cases which, while not comparable, at least     give some indication of the range and without a              recommendation there is no clearly articulated recognition    of these mitigating factors. 

However in light of the applicant's past convictions the     sentence although, in my view, high is not outside the range   and I too would dismiss the application.

DAVIES JA:  The application is dismissed.

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