R v Sexton; ex parte Attorney-General of Queensland

[1997] QCA 264

IN THE COURT OF APPEAL	[1997] QCA 264
SUPREME COURT OF QUEENSLAND
Brisbane	C.A. No.238 of 1997
[R v. Sexton; ex parte A-G]

THE QUEEN

v.

PHILLIP IAN SEXTON

Respondent

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Pincus JA
Shepherdson J

White J

Judgment delivered 29 August 1997

Separate reasons for judgment of each member of the Court; Pincus JA and White J concurring as to the orders made, Shepherdson J dissenting.

APPEAL ALLOWED. SENTENCES IMPOSED BELOW SET ASIDE AND IN LIEU THEREOF SENTENCES OF 6 MONTHS IMPRISONMENT ON EACH OF COUNTS 1 TO 5 AND 18 MONTHS ON EACH OF COUNTS 12, 13 AND 14 ARE IMPOSED, ALL TO BE SERVED CONCURRENTLY; RECOMMEND THAT ANY PAROLE ORDER MADE IN RESPECT OF THE RESPONDENT CONTAIN THE REQUIREMENT THAT THE RESPONDENT UNDERTAKE SUCH PSYCHOLOGICAL, PSYCHIATRIC OR OTHER TREATMENT COUNSELLING AS IS THOUGHT TO BE DESIRABLE TO PREVENT REPETITION OF OFFENCES OF THE TYPE IN QUESTION. PURSUANT TO S.161 OF THE PENALTIES & SENTENCES ACT 1992 THE 30 DAYS THE RESPONDENT SPENT IN PRE-SENTENCE CUSTODY IN RESPECT OF COUNTS 12, 13 AND 14 BETWEEN 17 APRIL 1997 AND 16 MAY 1997 ARE IMPRISONMENT ALREADY SERVED UNDER THE SENTENCE.

months imprisonment, wholly suspended for 3 years; 3 months imprisonment and 3 years probation - whether sentences manifestly inadequate because they failed to adequately reflect the gravity of the offences; they failed to take sufficient account of the need for general deterrence; the learned sentencing judge gave too much weight to factors going to mitigation.

Everett v. R (1994) 181 CLR 295
R. v. Melano; ex parte Attorney-General [1995] 2 Qd.R 186

R v. Bazley (CA No. 220 of 1997 5 August 1997)

Counsel:	Mrs L Clare for the appellant Mrs K McGinness for the respondent
Solicitors:	Director of Public Prosecutions (Queensland) for the applicant Legal Aid Queensland for the respondent
Hearing date:	6 August 1997

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 29 August 1997

I have read the reasons of Shepherdson J and those of White J in which the facts of the case and the considerations applicable are set out. The outstanding feature of the case, in my view, is that the respondent had, a few years before he committed the offences in question, committed other similar offences, involving sexual interference with young girls; as a result he was required to perform community service. The occurrence of the series of offences with which we are presently concerned makes it clear, to my mind, that a more substantial penalty than was imposed below was necessary, to bring home to the respondent that the law regards these matters very seriously. There is also the fact that, on the material before the primary judge, there is reason to think that both the children the victims of these offences suffered significant mental stress as a result.

I agree with the orders proposed by White J.

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 29 August 1997

The Attorney-General of Queensland has appealed against sentences imposed on the abovenamed Phillip Ian Sexton by a District Court Judge on 16 May 1997. The respondent Sexton had pleaded guilty to 8 offences against s.210 of the Criminal Code. The offences and the sentences imposed were:-

1.         Five charges (Counts Nos. 1 to 5 inclusive) that on 5 occasions between 1/3/96 and 1/5/96 Sexton without legitimate reason took an indecent photograph of a female child under the age of 16 years at a time when that child was under the age of 12 years.

Sentence:- 12 months' imprisonment such sentence to be suspended forthwith and with a direction that Sexton not commit any other offence punishable by imprisonment within a 3 year period.

2.	One Count (Count No. 12) of unlawfully and indecently dealing with the same child as that referred to in the above 5 charges - offence committed between 1/6/96 and 13/6/96. Sentence:- 3 months' imprisonment and 3 years' probation with certain conditions to which I shall later refer.
3.	One Count (Count No. 13) of unlawfully and indecently dealing with the sister of the girl referred to in the earlier charges who was a child under the age of 16 years - this offence occurred between 1/6/96 and 13/6/96. Sentence:- same as for Count No. 12.
4.	One charge (Count No. 14) that on 20/5/96 without legitimate reason Sexton exposed the two children mentioned above to an indecent video tape, such children being under the age of 16 years and one of them being a child under the age of 12 years. Sentence:- same as for Counts Nos. 12 and 13. The maximum penalty to which the applicant was exposed was 14 years where

the child concerned in the offence was under the age of 12 years and 10 years in the
charge where the child was above the age of 12 years.

The respondent was 33 years old at the time of sentence - he was born on 7 May He had a prior criminal history which was placed before the learned sentencing judge. On 5 September 1992 in the Brisbane District Court, on 1 charge of indecent dealing with a child under the age of 12 years, and 1 charge of procuring a child under the age of 12 years to commit an indecent act, he was ordered to perform unpaid community service of 40 hours' for each offence making a total of 80 hours.

1964.

The appellant contends that the sentences imposed on 16 May 1997 were manifestly inadequate because:-

(a)       they failed to reflect adequately the gravity of the offences;

(b)       they failed to take sufficient account of the need for general deterrence;

(c)        the learned sentencing judge gave too much weight to factors going to mitigation. The question for this Court is whether the sentences imposed were outside the

scope of a proper sentencing discretion (see the Queen v. Peter Joseph Melano ex parte - Attorney-General of Queensland, appellant (1995) 2 Qd.R186). The learned sentencing judge was told that the respondent became a friend of the children's family some time before Easter in 1996, while he lived a few houses away from them at the North Coast. The respondent was a teacher at a local school. On 10 June 1996 the child's mother spoke to the younger girl and as a result of what she was told the police came into the picture. On that same day they executed a search warrant at the respondent's home and seized 5 photographs of the younger girl and numerous pairs of plastic see-through incontinence pants. The 5 photographs are the subject of Counts Nos. 1-5 and they were shown to the learned sentencing judge. It appears all photographs were taken on the same day. The child was on the toilet, the respondent pushed the door open and told the child to smile, stand up and put her hands on her hips. He then took certain photographs which showed the child naked below the waist. He also persuaded the child to try on the incontinence pants so that he could take photographs telling her they were to show to her friend who wet the bed. These photographs of the child wearing the pants confirm the child's statement to the police that the respondent had told her to pull the pants up tightly. Again, these photographs plainly show the child naked (apart from the see-through pants) from the waist down.

In respect of the two Counts of unlawful and indecent dealing (Nos. 12 and 13) the learned sentencing judge was told that the respondent had been visiting the house when the two sisters were sitting on a couch in the lounge room, that the respondent reached over and touched the younger girl on the vagina and then leant over and felt the older girl on her bottom. The older girl in her statement to the police confirmed these incidents, adding that the respondent had squeezed her bottom. The touchings in Counts 12 and 13 were on the exterior of clothing each child wore.

The final offence concerning the indecent video tape was committed on an occasion when the respondent brought a pornographic video to the house on a night when the children's mother and their older brother had gone to a friend's house to watch on television a major rugby league match. The girls recalled the name of the video - the learned sentencing judge was told the respondent had asked the girls to put the video "Hidden Obsession" onto the video machine but they refused; that he operated it himself, that the younger girl tried to fast forward the film and hid under a doona, but when she looked from under the doona she saw naked people in an aeroplane having sex. The older girl said she watched the video and saw naked women kissing and could see their breasts and vaginas.

When the respondent was interviewed by police he admitted taking the photographs but denied the other offences. He told the police officer that he had a problem with children and needed help and agreed to be reinterviewed. During this second interview the respondent denied touching the complainants but admitted he found the photographs of the younger girl "a little sexually arousing" and added "but I wouldn't touch a child".

The learned sentencing judge had before him a transcript of part of the proceedings before another District Court Judge in September 1992, when the respondent had pleaded guilty to the two charges which I earlier mentioned. The transcript did include the sentencing remarks.

The learned sentencing judge also had before him a victim impact statement dated 15 May 1997 made by the children's mother. This document refers to the younger child still having nightmares and states that "we had to move house because he knew where we lived and she was very scared of him". The statement also refers to the elder daughter's refusal to go to school while the respondent was still teaching, and the fact that the elder girl had not even completed her Junior.

The learned sentencing judge in his sentencing comments said he regarded the offences as "serious"; he described the two girls of that age as "extremely vulnerable", "vulnerable to being dealt with by adults" and "particularly vulnerable when the adult is a family friend, a trusted - or a person who should be a trusted person". His Honour kept in mind the need for rehabilitation and the need for effective deterrence. He referred to prison as one of the most effective deterrents and he took into account the statement from the children's mother. His Honour referred to the convictions in 1992 for "this sort of thing before" and the respondent's acknowledgment that he was aware that he needed help with his problem. The learned sentencing judge had before him a report dated 15 May 1997 from Mr Barry J. Kerr, a clinical psychologist, which traced the respondent's background and as His Honour pointed out the respondent's upbringing had "a number of negative aspects to it". His Honour went on to say:-

"What you did to these children or with these children is not as bad as some other descriptions of things that come before the Courts. Nevertheless, for the reasons I have attempted to outline, it was serious misconduct with vulnerable children by a person who they trusted or should have been able to trust certainly by a person their parent trusted." His Honour referred to the fact that the respondent had been in custody for 30

days and, obviously considering the matter of rehabilitation he made the probation order in order that he could impose a condition requiring the respondent to take part in programs "particularly programs for sexual offenders designed by the probation service".

The learned sentencing judge mentioned that in 1992 when he was before the Court for sentencing there had been some talk about the respondent obtaining counselling and commented "it does not appear to have happened. The judge on that occasion left it up to you. You do not seem to have done it".

On reading the learned sentencing judge's comments in May this year, it is apparent that His Honour by the use of the probation order and the suspended prison sentence was attempting to bring home to the respondent what would happen to him if the respondent were to "do this sort of thing again".

The learned sentencing judge, in arriving at the sentences and the making the probation order for 3 years, was endeavouring to marry the aspects of deterrence and rehabilitation. On the appellant's case, the factors which His Honour took into account - and I have summarised them earlier - all point to the need for a longer prison sentence to be imposed. The younger of the two children was 10 years old at the time; the respondent clearly took advantage of his position of trust and the vulnerability of the children particularly the younger one. The weakness which the respondent has for small girls is obviously one which requires treatment. Any sentencing judge will be concerned to see that he or she is able to impose conditions to ensure, as far as possible, that a person (such as the respondent) being sentenced does receive treatment for a condition which the prisoner may suffer and which, without treatment, can or may lead him into criminal conduct which conduct can harm children. Obviously a community service order of some type e.g. probation or unpaid community work offers the best and only opportunity to specify the condition which is to be obeyed. Unfortunately the legislation restricts the marriage of a term of imprisonment and a probation order. It is my view that the legislature should take steps to extend the power to imprison and to combine imprisonment with a probation order beyond the period of 6 months imprisonment specified in the legislation.

Any recommendation for treatment in respect of a person being sent to gaol is nothing more than that - a recommendation.

The matter is complicated by the fact that as we were told from the Bar table, on 13 June 1997 the respondent was released from custody. If the appeal succeeds and the sentence of imprisonment is increased, then the respondent must be returned to custody after some 2 months of liberty.

In The Queen v. John Reginal Bazley; ex parte Attorney-General of Queensland (CA 220 of 1997) - unreported - judgment delivered 5 August 1997 this Court said:-

"It has long been accepted that an appeal against sentence by the Attorney-General cuts across the time honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed: Everett v. R. (1994) 181 C.L.R. 295 at 299. A case such as this in which, in consequence of the sentence imposed below, the offender has not been put in actual custody, illustrates the difficulty facing the Attorney in such an appeal. This Court made that point in R. v. Melano; ex parte Attorney-General [1995] 2 Qd.R. 186 at 190 by saying that, especially where liberty is at stake, the Court is sometimes less reluctant in an appeal by the offender to alter the sentence imposed below. In any event it will not do so in an Attorney's appeal unless the sentencing judge has erred in principle either because an error was discernible or demonstrated by a manifest inadequacy of sentence."

Bazley is distinguishable from the present in that here the respondent has spent 58 days in custody (including 30 days pre-sentence custody).

In Everett v. The Queen (supra) the High Court applied Reg v. Wilton (1981) 28 SASR at pp. 367-368 where King CJ. (with whom Mitchell and Williams JJ. agreed) had said:-

"It is necessary to consider whether the prosecution should be allowed to raise on the appeal the contention that the sentence ought not to have been suspended when that contention was not put in the Court below. The consequences of allowing the prosecution to do so are serious. The respondent has faced the prospect of deprivation of his liberty by way of imprisonment and has been spared, subject to observance of the conditions of the bond. If the prosecution is allowed to raise the contention he must again face the prospect of imprisonment. This is what the Federal Court meant in Reg. v. Tait and Bartley by 'double jeopardy'. In my opinion, this Court should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing judge, only in exceptional circumstances which appear to justify that course. I endorse with respect what was said in Tait and Bartley as to the duty of prosecuting counsel before the sentencing judge. In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge, and this course is regarded by the prosecution as beyond the proper scope of the judge's discretion, a submission to that effect should be made. Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General."

In my view that passage is relevant in the present matter. Before the learned sentencing judge the Crown Prosecutor submitted that "a not insignificant custodial sentence is the only appropriate penalty". Counsel for the respondent then addressed His Honour who in the course of hearing those submissions referred to the respondent's need for assistance and said "And so whatever order I make, I intend to structure it so that he is required to take part in an appropriate program ... . That doesn't necessarily mean that I'm not going to imprison him though".

Defence counsel then submitted that in effect His Honour could "have recourse to sentence requiring imprisonment of no more than six months with probation thereafter ... ". His Honour replied "yes". The prosecutor was invited to address the court again but declined the offer.

The result was that the prosecutor did not submit that the "structuring" spoken of by His Honour which it appeared would encompass a short custodial term coupled with probation was outside the scope of the judge's proper sentencing discretion. This omission by the prosecutor means in my view that in accordance with Wilton (supra) this court should not accede to the Attorney-General's submission that the sentences for Counts 12, 13 and 14 should be set aside. Such a view is strengthened by the respondent s liberty since 13 June 1997.

This still leaves the suspended sentence of 12 months coupled with the direction that the respondent not commit any other offence punishable by imprisonment within a 3 year period from 16 May 1997. Were he to do so, he would go to gaol to serve the 12 months' imprisonment (s.146 Penalties and Sentences Act 1992). The suspended sentence, imposed for Counts 1 to 5 hangs over the respondent's head for 3 years - as the learned sentencing judge told him.

His Honour obviously intended to structure the exercise of his sentencing discretion to ensure that the respondent underwent treatment and counselling (by use of the probation order), to ensure that he spent some time in custody and ensure that he was encouraged to remain law abiding. Thus His Honour has married rehabilitation and deterrence.

I have concluded that the appellant has failed to demonstrate that the learned sentencing judge has erred in principle or that the sentences imposed were manifestly low and that the sentences imposed were outside the exercise of a proper sentencing discretion.

I would dismiss the appeal.