The Queen v M

[1994] QCA 47

IN THE COURT OF APPEAL  [1994] QCA 47

SUPREME COURT OF

QUEENSLAND

BRISBANE  C.A. No. 389 of 1993

[R. v. M]

BETWEEN:

THE QUEEN

v.

M

Applicant

Mr Justice Pincus

Mr Justice Davies

Mr Justice Thomas

Judgment delivered 21/03/1994

Joint reasons for judgment of the Court

Application granted, appeal allowed. Sentence on the count under s. 229B set aside and replaced with one of imprisonment for six years.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - s. 229B of Criminal Code (Qld) - maintaining an unlawful relationship of a sexual nature with a child under sixteen - homosexual relationship by school teacher with fourteen year old boy - consensual relationship - abuse of position - late plea of guilty.

Counsel:Applicant in person - no legal representation

J. Costanzo for the Crown

Solicitors:Director of Prosecutions for the Crown

Hearing Date:              09/03/1994 and 10/03/1994

JUDGMENT OF THE COURT

Judgment delivered 21/03/1994

This is an application for leave to appeal against a sentence of nine years imprisonment imposed for the offence of maintaining an unlawful relationship of a sexual nature with a child under the age of sixteen.

Section 229B, under which the charge was brought, provides for various levels of penalty according to particular circumstances of aggravation. Thus a maximum sentence of imprisonment for life is provided if in the course of the relationship the offender commits a sexual offence which carries with it liability to imprisonment for fourteen years or more. It was specifically alleged against the applicant that in the course of the relationship he permitted a male child to have carnal knowledge of him by anal intercourse. Under s. 208, permitting a male person under sixteen years of age to do so carries a penalty of fourteen years. In this way the applicant was rendered liable to a maximum sentence of life imprisonment.

It is of course the nature and circumstances of the sexual relationship as a whole which will in the end determine the appropriate level of sentence.  The above allegation was merely one aspect of a wide-ranging sexual affair between a school teacher and a pupil.

The applicant was also sentenced to twelve months imprisonment for unlawfully and indecently dealing with another fourteen year old school boy. There is no appeal against that sentence, and for the moment we shall concentrate upon the circumstances of the charge under s. 229B.

The relevant facts in the present case cannot be simply stated or summarised.  By consent of the parties it was agreed that the relevant facts are those contained in a book written by the applicant consisting of 248 pages titled "Tell D I Love Him".  The book contains a vast amount of sexual details, introspective musings, and is a mixture of attempted objectivity and self-serving analysis.  One of the points of the book is to demonstrate that this particular fourteen year old boy ("D”) helped to bring the applicant to a realisation of his own homosexuality.

Other materials were received in the course of the hearing, including two psychiatric reports, and these to some extent permit further understanding of the applicant's conduct.

The applicant was a high school teacher who developed a homosexual relationship with a fourteen year old male student at the school at which he taught.  The relationship flourished in the sexual sense over a three month period between September and December 1991.  The numerous sexual acts engaged in between these two persons included sodomy of each other, mutual masturbation, oral sex, licking and swallowing of semen and sharing of pornographic material.  All the acts were bilaterally consensual.  There was an intense homosexual relationship between this forty-four year old man and fourteen year old boy during which a wide variety of sexual acts were performed, sometimes many times on the one day.  It was conducted sometimes in a private residence, sometimes in the privacy of the applicant's yacht, sometimes when other persons were aboard.  It was conducted in public showers and toilets, in changing rooms and even in department store cubicles.  It was conducted whilst driving the applicant's motor vehicle along public roads.

The learned sentencing Judge accurately described the applicant as "besotted" by the boy who apparently had made an impression upon him a year previously.  During 1991 D was in his year nine maths class.  The applicant recognised his sexual ambivalence.  He gave him extra tuition and developed their association, eventually inviting him sailing.  He engaged in many subterfuges to facilitate their outings and contacts, and it is difficult to disagree with the learned sentencing Judge's statement that some trust was reposed in him by the boy's parents and that this trust was abused along with the abuse of the teacher-student relationship.

At the end of 1991 the applicant voluntarily left Brisbane, thereby ending the physical relationship.  This stands in his favour, because it was to some extent based upon a conscientious disquiet.  However the learned sentencing Judge commented that the relationship may have been "dulling" by the end of the year, and the book certainly does not suggest that the relationship was over from the applicant's point of view.

It was submitted at the hearing on the applicant's behalf that his relationship with the boy was motivated by love rather than lust.  There is no reason to doubt the applicant felt affection for the boy along with the self-gratifying physical attraction, but we do not find it necessary to pursue counsel's characterisation of the association, which was repeated by the applicant himself upon the present application.

The court received lengthy written submissions from the applicant, some of which were quite irrelevant to any question of alleged excessiveness of the sentence.  Many of the submissions challenge particular words or phrases used by the trial Judge but in the end fail to demonstrate that His Honour misunderstood the material or drew incorrect inferences.  For example it was submitted that His Honour's use of the term "long term abuse" at one stage of his lengthy sentencing remarks disclosed error.  However His Honour expressly referred to the relevant three month period and there is no reason to think that His Honour acted on any other view of the circumstances than the facts presented, namely the applicant's own statement of them in his book.  We do not consider there is any substance in the submission that His Honour "failed to find the facts of the book" or other variations of that submission.

One of the major groups of submissions related to the alleged failure of the learned sentencing Judge to give proper effect to the applicant's "co-operation with authorities", his plea of guilty and his experience of remorse.  These matters are to some extent inter-related.

The circumstances include the fact that in investigating another matter concerning the applicant, the police discovered the book "Tell D I Love Him" and in consequence sought his explanations.  On 7 August 1992, in a record of interview, he admitted to the police that his relationship with D was described in the book.  Now the book, which ultimately became the basis of the sentencing exercise, presents the seduction as gentle and considerate.  It introduced D to "safe sex" and led to a careful penetration of D’s anus followed by a careful withdrawal upon being ordered to "take it out".  However it would seem that the statement of complaint which the police finally elicited from D was very different and of a kind that would reflect considerably greater discredit upon the applicant.  There was a substantial delay before committal, and of course the applicant was denied contact with D over that period.  He seems to have found this oppressive, and says that he desired contact in order to persuade D to "tell the truth".  In the event, on his instructions, the complainant was subjected to cross-examination at the committal.  This was accompanied by the applicant's outburst in court in the presence of the complainant, "Can't you get the two of us back together again".  His submission before us was that this referred to the restoration of communication rather than the resumption of sexual activity.

When the matter came on for hearing, he pleaded not guilty to all the numerous counts on the indictment.  A voir dire was held in an attempt to exclude the book "Tell D I Love Him" from evidence, apparently on the basis of the manner in which it was obtained by the police.  His Honour declined to exclude it.  The effect of such an exclusion, if successful, upon the admissibility of the record of interview and ultimately upon the conduct of the trial cannot now be known, but it is enough to say that such exclusion was the beginning of a very promising line of defence, and was potentially very damaging to the prosecution.  However after the trial Judge's ruling, and presumably after some contact between the prosecutor and defence counsel, the prosecution indicated that it would accept a plea of guilty to this one count as a full discharge of the indictment, and that it would accept, for the purposes of the sentencing process, that the relevant facts were those stated in the book.

This meant that the complainant would not be cross-examined.  The applicant asserted before us on more than one occasion that he had never intended that D would be cross‑examined at trial and that he would not have permitted this to occur.  It is not necessary to accept or reject that assertion.  It is sufficient to note that in the event the complainant was cross-examined at committal but a plea of guilty on the second day of trial avoided any further cross-examination.  The learned sentencing Judge noted that the plea of guilty came after the voir dire, that the cost of the balance of the trial was avoided, and that the Crown had secured a certain conviction.  His Honour further observed:

"To that extent then, albeit late, there has been some benefit, however slight, to the State and to the boy.  The challenge made to the admissibility of the book may have been one with little likelihood of success.  However, it was not one unreasonably made and I am conscious that if it was to be made it had to be made at trial.  Only when the law is changed to permit pre-trial rulings will the situation be otherwise.  To that extent, your actions can not be criticised and an earlier plea cannot be contended for if you wished to argue the admissibility question.  The circumstance of that is something that I may have been prepared to give effect to, but at the most only to a minor degree."

At sentence, counsel for the applicant had submitted that he should be given credit for an "early plea", but in our view that submission does not survive scrutiny.  At no stage was any suggestion conveyed to the Crown of a willingness to plead guilty upon the facts stated in the book, and this can only be regarded as a matter that was raised after commencement of trial.  Defence counsel's submission that it would have been a waste of time to phone the Crown is hardly convincing.  It may be observed that the applicant's conduct still reveals a surprising degree of ambivalence, evidenced inter alia by applications in the course of the appeal for leave to appeal against conviction.

We think that His Honour's approach to this aspect of the case was correct.  The applicant should be given the benefit of his plea of guilty, but it cannot properly be regarded as an early plea.

So far as the question of remorse is concerned, the learned sentencing Judge's findings were favourable to the applicant:

"Now I am satisfied that you are remorseful and I think the better view in the end is that you are not simply sorry for yourself, that your remorse is reflected by a real concern for D, a concern that goes beyond your sexual relationship and one which is founded on other aspects of the boy's behaviour."

We accordingly consider that the applicant's submissions that the learned sentencing Judge failed to accord due consideration to "co-operation with authorities", "concern for the complainant", "the experience of remorse", and "the plea of guilty" are not justified.

Another major submission was that the court erred in not according sufficient weight to the consenting nature of the relationship.  In this context the applicant went so far as to submit that the question of exploitation does not arise in a completely consenting relationship.  We completely reject that submission in the circumstances of the present relationship.  It is also clear that the learned sentencing Judge was fully aware of the extent to which the relationship was consensual, and there was no misdirection on this point.  Indeed, offences of this kind are not commonly associated with gratuitous violence.  They depend more upon subtle seduction and the abuse of a position of authority.

The learned sentencing Judge took the view that the applicant "did not commence the corruption of this boy but, it seems to me, you accelerated it".  The applicant submitted that this was erroneous because he had "consistently worked towards reversing the perceived corruption of the complainant".  He further submitted that the boy "suffered more harm as a consequence of the criminal justice process than he did from the relationship itself".  The first submission is at best misguided and at worst hypocritical.  The second is not made out, and would not in any event reduce the harm for which he is responsible.  The future effects upon the complainant are uncertain.  He now describes his life as being back "on track" and has future goals, but the evidence is that it would be beneficial for him to be given counselling and support for some time to come.

We do not find it necessary or helpful to deal specifically with numerous other assertions, arguments and submissions in the material presented by the applicant.  There is no reason to think that the learned sentencing Judge misunderstood the circumstances or that any error occurred to the disadvantage of the applicant in the approach taken to the circumstances of the offence.

The principal question in the appeal, as it seems to us, is whether the nine year sentence is manifestly excessive and whether it is out of line with sentences in other cases for activity which may fairly be regarded as comparable.

Before turning to other sentences, it is as well to recapitulate that there was a teacher‑pupil relationship, with an age disparity of thirty years.  The applicant set out to develop the relationship and took advantage of the youthfulness of the complainant.  The applicant was aware of the illegality and the consequences.  There is a need for deterrence and for the protection of a very important part of the community, namely school children, from such attentions.  The complainant may need counselling and support for some time in the future.  Furthermore, after moving away from this particular relationship the applicant went to another school and committed another offence upon a fourteen year old boy, which was the subject of the second matter dealt with by the learned sentencing Judge.  There is plainly some risk of re-offending.  The applicant's submissions to us included the curious statement that his remorse would continue "until such time as the matters have been resolved between myself and the complainant, and that resolution hasn't begun yet."  In mitigation, there is the learned sentencing Judge's acceptance of the existence of remorse and of a real concern for the boy; the fact that the applicant has lost his employment; the fact that the applicant has no previous convictions; and the early admissions to the police and the plea of guilty, although for reasons already mentioned, this cannot be regarded as an early plea.  The complainant had homosexual tendencies which were observed by the applicant, and this has led to a finding that he accelerated the corruption of the boy rather than commenced it.

We have examined sentences applicable to this particular offence, including those in Krieger C.A. 13 of 1991, 28 March 1991; K C.A. 203 of 1993, 23 September 1993; Kingwill C.A. 75 of 1993, 13 May 1993; J C.A. 264 of 1992, 4 December 1992; G C.A. 168 of 1992, 15 July 1992; C C.A. 153 of 1993, 20 September 1993; T C.A. 68 of 1993, 31 May 1993; S C.A. 316 of 1993, 7 October 1993; B C.A. 159 of 1993, 7 September 1993 and M C.A. 314 of 1993, 9 November 1993.  Those cases in which the victims were pre‑pubescent children, and especially those involving very young children where the notion of a consensual element is absurd, tend to provide more serious examples of this offence, and do not afford reliable guidance for an appropriate sentencing level in the present circumstances.

The cases submitted as being most comparable are J, B and M.  However we regard M, where the complainant was only six or seven years old, as different in kind.  It may be noted however that although that case involved a relationship for about a year with a person in the position of step-father, and sodomy was involved in the maintenance of the sexual relationship, the sentence was reduced by this Court from twelve years to nine years.  In J, a thirty-three year old offender who maintained a sexual relationship with his niece, starting at age twelve and continuing to age fifteen by which time intercourse was occurring, was sentenced to seven years imprisonment.  He had been in custody for two months on remand and had pleaded not guilty.

B started touching his daughter sexually when she was aged eight or nine, and commenced having sexual intercourse with her when she was aged fourteen.  He was sentenced to seven years imprisonment and his application for leave to appeal was refused.

We have also adverted to the level of sentencing in cases of sodomy of young persons, unaccompanied by circumstances of violence, and in cases of unlawful carnal knowledge involving the seduction of girls under the age of consent by persons in authority, including those in loco parentis. These cases of course do not afford any direct means of comparison, because the offences and the penalties prescribed are different. It is not amiss however to note the sentencing levels in respect of the substantive offences that render the "relationship" under s. 229B objectionable, with a view to achieving some balance in the imposition of penalties across the board. (cf. Penalties and Sentences Act s. 3(c).) Sentences in respect of such offences are markedly below the sentence in the present matter, at least in cases where the complainants are of an age comparable with that of the present complainant. The present offence rolls up multiple offences into one very serious offence of which the gist is the maintenance of a sexual relationship with a minor.

In our view the sentence which appropriately reflects the prescribed purposes and guidelines of sentencing, consistently with sentences which have been imposed in other cases, is six years imprisonment.

The application should be granted and the appeal allowed. The sentence on the count under s. 229B should be set aside and replaced with one of imprisonment for six years.