R v. W

[1998] QCA 381

[1998] QCA 381

COURT OF APPEAL

THOMAS JA
SHEPHERDSON J
JONES J

CA No 268 of 1998

THE QUEEN

v.

W  Applicant

BRISBANE

DATE 09/10/98

JUDGMENT

JONES J:  On 28 July 1998 at the District Court at Emerald, the applicant was convicted on his own plea of five offences of a sexual nature against one complainant.

The offences were three counts of indecent dealing with a boy under the age of 17 years and in respect of each a term of imprisonment for two years was imposed; one count of sodomy and one count of permitting sodomy on himself and in respect of each of those offences, a term of imprisonment of five years was imposed.  All the terms were to be served concurrently.

These offences occurred between the beginning of 1984 and the end of 1985 when the applicant was in his mid-30s and the complainant aged between 14 to 16 years.  The offence of sodomy occurred when the complainant was 16 years.

The complainant is now 29 years of age.  He first raised this complaint in September 1997 and gave details to the Child Abuse Investigation Unit in January of this year.  Upon being interviewed, the applicant admitted a number of the allegations on which these charges were based.  He accepted a hand-up brief at committal.

In the applicant's favour is the fact that he indicated at the earliest stage an intention to plead guilty to the charges and thereby has saved the complainant the stress of giving evidence.

The involvement between the applicant and the complainant started with their association with a church youth group.  The complainant and his younger brothers were members of the group and the applicant was one of the group leaders.

From this the applicant came to know the complainant's mother and stepfather.  He befriended them and because they lived in financially straitened circumstances, assisted with providing groceries and other help.  The applicant was the treasurer of the church and it is not suggested that there was anything sinister in his providing this assistance.

The complainant's household was not a happy one.  The family lived in a railway camp some distance from Emerald.  The complainant's stepfather drank heavily and physically abused the two boys.  The applicant invited the boys to stay at his house on weekends to provide relief for them from this situation and generally to help the family out.  From the beginning of 1984 this arrangement was extended so that the two boys lived permanently with the applicant.  This also facilitated their attendance at high school.  The applicant described himself as their foster father.

The offences occurred during a two year period when the complainant lived at the applicant's house.  The first count related to an event that occurred while the complainant was in his bed.  The applicant also got into bed and the boy pretended to be asleep.  The applicant placed the complainant on top of himself so that both were facing the ceiling.  The applicant poured oil around the boy's penis and started moving his own penis between the boy's legs.  The applicant ejaculated at that time.

The second count related to an incident when the complainant woke late at night to find the applicant engaging in oral sex on him.  The third count related to an incident where again the applicant engaged in simulated intercourse by rubbing his penis between the boy's legs - I am sorry, when the complainant rubbed, masturbated the applicant.  The fourth count, the one of permitting sodomy, occurred when the applicant invited the complainant into his room.  He knelt on the floor and explained to the complainant what to do about performing anal sex on him.  The final count, the act of sodomy, occurred towards the end of 1985.  The applicant came into the complainant's bedroom, he placed the boy on top of him as he had done previously but on this occasion he penetrated the complainant's anus.

The applicant discontinued this conduct of his own accord and he continued to care for the complainant and his brother for a period of two years thereafter whilst the complainant completed his high school at the end of 1987.  In this time the applicant had married.  No complaint was made, as I have indicated, until 14 years after the offences.  There was no suggestion in the commission of the offences that any threats, violence or force was offered to bring about the complainant's compliance in the acts but, of course, the complainant was in a vulnerable position in so far as the applicant, as the owner of the residence, was in a position of authority and influence.

The applicant has shown genuine remorse for his actions.  At page 8 of the record there is a reference to the applicant saying that he had been praying for years that his conduct would not affect the complainant.

But it is the events that have happened since the commission of the offences that form one basis for suggesting a more lenient approach ought to have been taken to the sentence.

The applicant set about rehabilitating himself after that last event.  In June 1986 he married his present wife with whom he has had three children now aged 12, 10 and 8 years.  He has remained in employment as a technician, a position he has held for 34 years.  He has continued his involvement with his church and in the small community of Emerald.  The fact that the complaint was made after such a lapse of time has had a shattering impact on him and members of his family.  The applicant is obviously a religious man and with a long association with his church.  He has, for example, had to confess his commission of these offences to his church community.  It is a measure of his worth that the church elders came to Court to support him.

In this context, the effect of the delay in making the complaint has had a significant impact on the applicant.  In The Queen against Law ex parte Attorney-General (1996) 2 Queensland Reports 63 the court at page 66 identified two cases where delay could be seen as a mitigating factor.  The applicant's position falls within the second of those which reads that:

"Where time between the commission of the offence and the sentence is sufficient to enable the Court to see that the offender has become rehabilitated or that the rehabilitation has made good progress applies in this case."

But that decision of this Court also allowed that there may well be other bases for mitigation arising out of the lapse of time between the commission of an offence and sentence involving general notions of fairness.  That appears at page 67 of the judgment.

In my view, the greater impact of the disclosure of this offence by reason of the applicant's changed circumstances is a factor which needs to be taken into account.  The learned sentencing Judge made reference to this fact in a general way at page 15 of the record, particularly relating these facts to a conclusion that the applicant was unlikely to offend again.  But the effect of the delay in the context of the changed circumstances, particularly in light of the applicant's obligation to his children, is a matter to which I feel insufficient weight was given by His Honour.

The other matters going to mitigation which His Honour did consider were the absence of any prior convictions, the early plea of guilty, the applicant's good work record and the fact that these offences were not accompanied by any threats or violence.  There is an additional factor His Honour took into account and that was the state of the applicant's wife and the increased demands this offence and the applicant's punishment would have on her situation.

The offences are serious.  They involved sexual violation of a 16-year-old boy that has had a continuing upon him.  The seriousness of the offences should properly be marked by a term of imprisonment.  The term of imprisonment settled upon by the learned sentencing Judge was on the basis of his balancing of the seriousness of the offence with the circumstances of mitigation.  The comparison with other cases shows that a five year term for imprisonment for a single offence of sodomy involved more serious conduct than occurred here, or alternatively, was imposed when there was repeat offences over a longer period of time.  That certainly applied to each of the cases referred to us by counsel in their argument, and it seems to me that a closer comparison is drawn from the cases of R v. Marsh CA 351/93 and R v. Barnes CA 311/88 on the last page of the schedule tendered by the learned Crown Prosecutor.

In this instance I would reduce the head sentence to three and a half years' imprisonment for the two major offences of sodomy and permitting sodomy, and for each of the three counts of indecent dealing a period of one year's imprisonment.

The mitigating factors here are quite significant and they, together with the broader effects of delay of which I have made mention, should have resulted in some part of the sentence being suspended.  In the end result, I have come to the view that the sentence is manifestly excessive.  I would therefore grant leave to appeal and allow the appeal to the extent of reducing the sentences for each count of indecent dealing to 12 months' imprisonment and the sentences for the respective counts of sodomy and permitting sodomy to three and a half years' imprisonment.

I would order that the period of imprisonment in respect of the last two offences be suspended after the applicant has served 12 months of that period.  The operational period for such order shall be four years.  I am advised that there is no pre-sentence custody.  Convictions will be recorded in respect of each offence and I would ask counsel to inform the applicant of the situation that if he commits any offence punishable by imprisonment during the operational period of this order, that he will be liable to be further dealt with for the period of this sentence.

MR RAFTER: Your Honour, could I just mention before the other members of the Court pronounce their reasons that under section 144 subsection 6 of the Penalties and SentencesAct, the operational period must be not less than the term of imprisonment imposed.

JONES J:  Yes.  When I mentioned three years, I had it in mind with three additional.  Yes, I am sorry.  I should say four years then.  Yes, thank you.  Thank you, I will correct the transcript to show where I said operational period for three years to mean four years.  Thank you.

THOMAS JA:  And you will undertake to advise your client or have him advised?

MR RAFTER:  I will certainly at least cause that to be done, yes, Your Honour.

THOMAS JA:  I agree with the reasons which have just been delivered by Mr Justice Jones and with the orders which he proposes.

SHEPHERDSON J:  I agree.

THOMAS JA:  The orders will be those which have been indicated.