R v Wilson

[1998] QCA 74

IN THE COURT OF APPEAL	[1998] QCA 074
SUPREME COURT OF QUEENSLAND

C.A. No. 41 of 1998

Brisbane

[R. v. Wilson]

T H E Q U E E N

v.

ALISTAIR JOHN WILSON

(Applicant) Appellant

Pincus J.A.
McPherson J.A.

Muir J.

Judgment delivered 28 April 1998
Judgment of the Court

1.          APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.

2.          APPEAL AGAINST SENTENCE ALLOWED BY VARYING THE SENTENCES TO THE FOLLOWING EXTENT:

(A)	HEAD SENTENCE OF FIVE YEARS ON COUNT 1 REDUCED TO FOUR YEARS.
(B)	SENTENCES IMPOSED ON THE OTHER COUNTS CONFIRMED. BALANCE OF TERMS OF IMPRISONMENT UNDER ALL 5 SENTENCES TO BE SUSPENDED.
(C)	FOR THE PURPOSE OF S.144(5) OF THE PENALTIES AND SENTENCES ACT 1992, THE OPERATIVE PERIOD OF THE SUSPENSION TO BE FIXED AT THREE YEARS FROM THIS DATE.

CATCHWORDS: CRIMINAL - Maintaining sexual relationship with child under 16 years with a circumstance of aggravation - Indecent dealing - Sentencing - Whether sentence manifestly excessive - Relevance - Injuries sustained by applicant during previous prison sentence - Prisoner’s election not to take advantage of parole recommendation to continue Sexual Offenders programme.

Noble & Verheyden (1994) 73 A.Crim.R. 379.

Counsel:	Mr J. Hunter for the applicant Mr M.C. Chowdhury for the respondent
Solicitors:	Legal Aid Queensland for the applicant Director of Prosecutions (Queensland) for the respondent
Hearing Date:	16 April 1998

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 28 April 1998

In December 1997 the applicant pleaded guilty in the District Court to an indictment charging him with maintaining a sexual relationship with a child under 16 years with a circumstance of aggravation (count 1). He also pleaded to four counts of indecent dealing with a child under the age of 16 years. The sentences imposed were imprisonment for five years for the offence in count 1, and two and a half years for each of the offences in counts 2-5. The sentences are to be served concurrently and they carried a judicial recommendation for release on parole after serving nine months.

The offence in count 1, which spanned a period of about two years, occurred after the applicant met the complainant boy in 1992 when the complainant’s older brother was mowing lawns for the applicant. The complainant was 11 years old at the time and would often run away from his difficult home life. The applicant, who was 47 years old when they first met, gave the complainant food, cigarettes and money. The complainant would, on occasion, spend the night at the applicant’s house. Sexual activity between the applicant and the boy commenced three months after they met and continued for about two years. It consisted mainly of kissing, mutual masturbation and oral sex, and it took place with considerable frequency. When the applicant moved to the Sunshine Coast, the applicant and the complainant developed a code to arrange discreet meetings for these purposes.

The four counts of indecent treatment of a child under 16 are specific incidents. The indecent treatment included the applicant’s touching the boy’s penis and bottom, and, again, oral sex, and mutual masturbation. Sometimes the complainant would sleep naked in the applicant’s bed. When interviewed by the police the applicant at first denied the allegations and only admitted to some “inappropriate behaviour” such as helping the boy to undress.

The applicant contends that his sentence should be reduced to a sentence of three years imprisonment, wholly suspended. The applicant relies on his plea of guilty, and claims to be remorseful. He has made $1000 available to the complainant for any counselling that may be required. A psychiatric report dated 18 December 1995, although not completely favourable to the applicant, suggests that by that time he had made significant progress towards rehabilitation. It is said that, during the period that elapsed before the subject offences were discovered, the applicant has made determined efforts in that respect. In R v Law; ex parte Attorney-General [1996] 2 Qd R 63, the Court of Appeal held that this was a relevant factor to be considered in mitigation of the sentence.

The applicant is now 52 years of age having been born in 1945. He has what appears to be a good work record and he served two years in the Army, of which one was spent in Malaysia in 1964 and 1965. The most serious aspect of the applicant’s personal history is his past record of convictions in respect of similar offences. In 1968 at the age of 22 he was fined $50 for an attempted assault on a boy in Christchurch N.Z. In Wellington, when he was 25, he was placed on probation for two years for a similar attempt on a man. Then in October 1989, when he was 32 years old, he was convicted of indecently dealing with a boy under 14 in May 1987; also with three similar charges in respect of a boy under 17 committed between March 1981 and May 1987; and a further two charges of unlawful assault in 1986 and 1987. He was again admitted to probation for two years. In the Redcliffe Magistrates Court on 24 May 1993 he was sentenced for two offences of indecent assault attracting short periods of community service.

None of the penalties imposed upon him up to that date had involved a term of imprisonment. Finally, however, before the subject charges were brought against him, the appellant was sentenced in July 1994 in the District Court at Brisbane on a charge of unlawful assault in 1990 or 1991, together with four charges of indecent dealing with a child under 16 committed between November 1990 and July 1992; and one charge of permitting himself to be indecently dealt with by a child under 16 years. On that occasion he was also sentenced for two further indecent dealing charges committed in 1992 against another boy under 16. The effective sentence then imposed was imprisonment for two years and six months with a recommendation for parole after serving one year. The victims of these offences were boys of whom some were as young as 11 or 12 years old. They were from disadvantaged backgrounds and came under his influence through their employment in a lawn mowing business he was conducting. It should perhaps be added that, although a variety of different sexual acts was involved in these charges, they did not extend to acts of sodomy.

It was while he was on bail pending that hearing in 1994 that some of the offences now before this Court were committed. They came to an end when he was sentenced in the District Court in July 1994. The subject offences were, it may again be noted, committed before then, and, so far as is known, there is no suggestion that he has re-offended since that time.

Part of the reason for that may be the dreadful treatment meted out to him by other gaol inmates. In September 1994 he was attacked in his cell by two other prisoners, who strangled him with a sheet around his neck to the point where he lost consciousness and who also stabbed him in the neck and abdomen. The sentencing judge in 1994 had specifically recommended that he be separated from other prisoners; but the attack was perpetrated on the evening before he was due to be transferred to Rockhampton. He very nearly died as a result of what was done to him, and he sustained a degree of permanent brain injury, which has resulted in memory deficits and impairment of cognitive, social and behaviourial functioning, as well as post-traumatic stress disorder. In consequence, he has been incapacitated from working and will probably never be employed again. It is to his credit that, despite his experience of prison, he did not take advantage of the early parole recommendation after 12 months but deliberately elected to continue with his treatment in order to continue participating in the Sexual Offenders programme provided in prison.

The sentencing process in this case obviously involves some special features. The primary offence of maintaining a sexual relationship is a serious one carrying as it does a maximum of 14 years. For the other offences the maximum is five years. The offence in count 1 was aggravated by the fact that the applicant persisted with it while he was on bail pending the sentencing in 1994. It seems, with respect, that the learned sentencing judge adopted the correct approach in fixing a head sentence and then catering for mitigating personal factors by making a generous recommendation for parole in favour of the applicant. The head sentence may perhaps be considered high, even when it is viewed in the context of the applicant’s history of repeated offending in this way and of the fact that he was on bail for at least part of the time while he was offending. If he had been sentenced in July 1994 for all the offences he had then committed, including those now under appeal, it seems likely that he would not have received a sentence as high as a term of seven and a half years that represents the aggregate of the head sentences imposed on him in 1994 and 1997.

The other question on appeal is whether there are factors so special to the applicant that he should, as was urged by Mr Hunter of counsel, have been treated more leniently than he was on this occasion. There are some prominent considerations in his favour. There is the fact already mentioned that, although he had the opportunity of parole while in prison under sentence on the last occasion, the applicant elected to serve another seven months in custody, which on one view might well be equated to a head sentence of another year or so. Electing not to accept parole is something that is not unknown among prisoners wishing to avoid what some regard as the incubus of the parole regime; but in his instance the applicant’s decision was influenced by a commendable wish to continue in the Sexual Offenders programme. So far as can be gathered, his decision to do so was of some advantage. There is no evidence that he has re-offended since his release from prison.

The other major factor is the injuries he sustained in prison as a result of the vicious attack on him while he was serving his sentence. This Court has held that, in sentencing, injuries sustained by an offender in the course of committing the offence are relevant as a mitigating factor in fixing the penalty to be imposed. See Noble & Verheyden (1994) 73 A.Crim.R. 379. By analogy (although the analogy is by no means complete) it may be appropriate to take account of the injuries inflicted on the applicant while under sentence as well as the ensuing disabilities they have imposed on him. In principle, it would of course be quite wrong to recognize the criminal activities of other prisoners as in some way a substitute for the proper sentencing tribunals or as serving as some kind of surrogate for the courts; but it may well be that, in view of the injuries sustained by the applicant it would bear unduly harshly on him if he were returned to an environment that was the scene of the violent treatment he has already undergone.

When all these matters are weighed together, it remains not altogether easy to find fault with the sentence imposed below; but, after careful consideration, it is fair to regard the combined sentences for his pre-1995 conduct as heavy and the applicant’s personal position as presenting special features justifying this Court in intervening to alter the sentence imposed for the additional offences committed between 1992 and 1994, to which he pleaded guilty in 1997.

In the result, the application should be granted and the appeal allowed by varying the sentences to the following extent. The head sentence of five years on count 1 should be reduced to one of four years. The sentences imposed on the other counts should not be altered. The applicant has already served some four and a half months of these sentences. Those terms of imprisonment under all five sentences, or the balance of those terms, should now be suspended. For the purpose of s.144(5) of the Penalties and Sentences Act 1922, the operative period of the suspension is fixed at three years from this date.