Commissioner of Police v Collyer [2015] QDC 7

DISTRICT COURT OF QUEENSLAND CITATION: Commissioner of Police v Collyer [2015] QDC 7 PARTIES: COMMISSIONER OF POLICE (appellant) v WILLIAM CHARLES HALL COLLYER (respondent) FILE NO/S: D146/14 DIVISION: Appellate PROCEEDING: Section 222 Appeal ORIGINATING COURT: Maroochydore District Court DELIVERED ON: 6.2.15 DELIVERED AT: Maroochydore HEARING DATE: 30 January 2015 JUDGE: Robertson DCJ ORDER: Appeal dismissed CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE INADEQUATE – where the respondent pleaded guilty to one count of unlawful sodomy of a person under the age of 18 years – where the respondent was sentenced to 18 months imprisonment wholly suspended for a period of two years – whether the sentencing magistrate failed to correctly apply s 9(4) of the Penalties and Sentences Act 1992 – whether the magistrate failed the interpret s 9(4) in the context of s 9(12) of the Penalties and Sentences Act 1992 – whether the Magistrate erred in determining whether exceptional circumstances exist – appeal dismissed. Legislation Criminal Code 1899 Justices Act 1886 Penalties and Sentences Act 1992 Police Powers and Responsibilities Act 2000 Cases -- 1 of 13 -- 2 Bugmy v R [2013] HCA 37 House v the King (1936) 25 CLR 499 R v Bowden (Unreported 472/1993, 30 March 1994) R v CBI [2013] QCA 186 R v Gilles; Ex parte Attorney-General [2002] Qd. R 404 R v Lamb (Unreported 317/140, 12 January 2015) R v Tootell; ex parte A-G (Qld) [2012] QCA 273 R v Quick: ex parte Attorney General (Qld) [2006] 166 A Crim R 588; [2006] QCA 477 COUNSEL: Mr Greg Cummings for the appellant Mr Andrew Boe for the respondent SOLICITORS: Office of the Director of Public Prosecutions for the appellant Nyst Lawyers for the respondent [1] On 20 August 2014 her Honour Magistrate Tonkin in the Maroochydore Magistrates Court sentenced the respondent to 18 months imprisonment wholly suspended for a period of two years. On that day the respondent had pleaded guilty to one count of unlawful sodomy of a person under the age of 18 years which had occurred on 20 November 2013 at Nambour. The prosecutor in the hearing below incorrectly informed her Honour that the maximum penalty for this offence had increased from seven years to 14 years in 2010. It is conceded by the appellant that this was wrong as a matter of law. The maximum penalty for this offence has been 14 years, at least since 1997: R v Gilles; Ex parte Attorney-General [2002] Qd. R 404. Although the prosecutor referred to the wrong section, he correctly informed her Honour that the maximum penalty which a Magistrate may impose is three years and not the maximum penalty for the offence: s 552H of the Criminal Code. There is no complaint that her Honour regarded this as limiting the maximum term that she could impose by reducing what would have been an appropriate sentence had the sentence proceeded without the maximum term which could be imposed as limited by s 552H: R v Bowden (Unreported 472/1993, 30 March 1994, Davies JA, McPherson JA and McKenzie J). The law -- 2 of 13 -- 3 [2] The appeal is pursuant to s 222(1) of the Justices Act 1886, and, by virtue of s 223(1) is to be by way of rehearing on the evidence before the Magistrate. No party has sought to place fresh evidence before the court. However, pursuant to s 222(2)(c) if the defendant pleads guilty, the sole permissible ground of appeal is that the penalty imposed was inadequate. It is unlike an appeal against conviction, and it follows that on appeal, it is a rehearing in a technical sense of a review of the record below. [3] It is common ground that the court’s approach on an appeal of this nature is governed by principles laid down by the High Court in House v the King (1936) 25 CLR 499 at 505. [4] It is not sufficient that an Appellate Court considers a sentence lenient, or would have imposed a heavier penalty. Recently in Bugmy v R [2013] HCA 37, by reference to a different sentencing regime, (that in New South Wales), the High Court wrote at [24]: “… Sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence. Plainly enough the Court of Criminal Appeal disagreed with the sentence imposed (below) and favoured a more severe sentence. The difference between the Court of Criminal Appeal’s assessment of the appropriate sentence and (the court’s below) assessment may be explained by saying that (the sentencing judge) gave too little weight to some factors and too much weight to other factors. However, within a range of sentences for this offence and this offender, the weight to be given to the evidence, and the various conflicting purposes of sentence, was a matter for (the sentencing judge). The authority of the Court of Appeal to substitute a sentence for that imposed by (the sentencing judge) was not enlivened by its view that would have given greater weight to deterrence and less weight to the appellant’s objective case. The power could only be engaged if the court was satisfied that (the sentencing judge’s) discretion miscarried because in the result his Honour imposed the sentence that was well below the range of sentences that could be justly imposed for the offence consistently with sentencing standards.” The proceedings below [5] The hearing proceeded on the basis of an agreed set of facts which were read into the record by the prosecutor. The prosecutor informed her Honour: “The victim child in this matter is SKA aged 14 years (DOB: 06/02/1999). -- 3 of 13 -- 4 The defendant in this matter is William Charles Hall Collyer, aged 30 years (DOB: 25/10/1983). On 2 December 2013, police received a child protection notification in relation to concerns regarding unsafe behaviours by the victim child. Information was received that the victim child had told friends that he had met numerous men on Facebook and that he had sex and oral sex with them. During this statement the victim child disclosed an incident that occurred on or about 20 November 2013. The victim child could recall that is was this date as he recalls unrelated activities that occurred on 17 November 2013 and states that this matter occurred approximately three days after 17 November 2013. On this date the victim child was at his home address on a website called ‘SQUIRT’ late one night – all his other family members were home asleep. Investigators accessed the ‘SQUIRT’ website and ascertained that it was an online site that facilitated meetings between male persons for the purposes of sexual activities. The victim child was chatting online via this website when he was messaged by the defendant, who asked him if he would like to come over to his house. The defendant told the victim child he would be happy to pick him up and the victim child told the defendant to meet him at a roundabout near his house. The defendant said he would do so, and the victim child provided the defendant with directions to pick him up from a roundabout on Main Road near an ‘ABC child care’. The victim child then snuck out of his house and walked to the designated meeting place and waited for about 10 minutes at which time he observed a small car driving along Main Road before pulling up. The victim child observed that the vehicle was being driven by a male person (defendant). There were no other persons in the vehicle. The victim child described the vehicle as being small but was not able to offer any other description. The defendant then said to the victim child ‘are you the person from the website?’ To which the victim child indicated that he was. The defendant then opened the front passenger door and told the victim to child to get in. There was little to no conversation between the defendant and the victim child whilst in the vehicle. The defendant drove the victim child to a hotel in Nambour, which hotel was later identified by investigators as Nambour Lodge. The defendant and the victim child -- 4 of 13 -- 5 then entered a room at the location. Investigators later identified that room as unit 1. The defendant then had anal sexual intercourse with the victim child on a bed in the unit. The defendant then drove the victim child back to the roundabout on Main Road, and left him at that location. The victim child has never had contact with the defendant prior to the incident, and has not had any contact since that time. Police conducted inquiries with the manager of Nambour Lodge, and ascertained that unit 1 was booked by the defendant on the nights of 20 and 21 November 2013. On 30 December 2013 police executed a search warrant at the defendant’s home address, and subsequently attended upon him at his place of employment, where he was cautioned in accordance with the provisions of the Police Powers and Responsibilities Act 2000. The defendant admitted that on the occasion in question he was staying at the Nambour Lodge Motel for work purposes, and that while staying there he accessed the website ‘SQUIRT.ORG’ and chatted to a number of people including the victim child, with whom he discussed sexual preferences/likes. He said the victim child initially stated he was 19 years old, but then indicated he was then 15 years old, whereupon the defendant ended the chat because the victim was too young. The defendant denied having met up with the victim child. At that time the recorded interview with the defendant was interrupted. After this interruption the defendant interruption the defendant indicated that he wished to seek legal counsel before he answered any further questions. The defendant voluntarily accompanied policed to Morningside Police Station where he spoke with a solicitor. Following the defendant receiving legal advice he agreed to continue with the interview with police. During the recorded interview the defendant admitted that he met up with the victim child, and that the child looked very young. He estimated his age to be only 12 or 13 years. He said he returned to his motel room with the victim child, but he continued to deny having sexual intercourse, or any physical sexual type contact, with the victim child. At the conclusion of the interview the defendant was arrested for unlawful sodomy and charged at the Morningside Police Station where he was later released on bail undertaking to appear in Maroochydore Magistrates Court on 30 January 2014.” -- 5 of 13 -- 6 [6] A number of observations need to be made about the agreed set of facts. At paragraph 2.8 of outline of submissions on behalf of the appellant, Mr Cummings of the Office of the Director of Public Prosecution writes: “2.8. Collyer noticed the complainant looked younger than 15. In a subsequent interview he estimated his age to be 12 or 13. Nonetheless Collyer drove the complainant around Nambour before finding a motel where he rented a room.” [7] In fact the uncontested evidence was that the respondent had rented a room for two days for work purposes, although to be fair, both below and on appeal it was conceded that the encounter was opportunistic, did not involve predatory behaviour and was consensual. [8] Secondly the prosecutor referred in his submissions to the respondent’s HIV status and the fact that he used a condom. Mr Callaghan SC said this to her Honour at transcript – 1-22: “Can we deal firstly with the question of HIV. We had been of the understanding that no reference was to be made to that because it had been agreed that was not in the circumstances relevant. It was not suggested that anything in the nature of unprotected sex had occurred or that anything had been transmitted. And I only say that because there’s no mention in the materials that we have tendered of that status, simply because it wasn’t going to be raised, it wasn’t thought necessary to engage with it. However, I can tell your Honour that as with any patient suffering from that condition, my client is on a medical regime that does mean if a single dose of his medication is missed, there is a potential for life threatening consequences. I don’t submit that it is something that cannot be managed in a custodial environment. But it is something that does put my client at a difference from, and set him apart from others being sentenced where custody is within contemplation.” [9] The agreed facts refer to an encounter between the child and another male on 17 November 2013. At the hearing, I provided both counsel with a copy of my sentencing reasons dated 12.1.15 in relation to the matter of Adam Stanley Lamb indictment 317/140. Mr Lamb was a 30 year old offender who had engaged in very similar conduct with the same child in the early hours of the morning on 17 November 2013. The circumstances were different in that Lamb had a previous serious conviction for possession of child exploitation material for which he received actual custody and had been in custody on remand for some time. He also was HIV positive and had unprotected anal intercourse with the child. Similarly to -- 6 of 13 -- 7 the respondent, the child in Lamb’s case had made a no complaint and the notification to police occurred in the same way. The respondent’s personal circumstances [10] Her Honour was provided with lengthy affidavits from the respondent’s mother and sister. She also received a report dated 19 August 2014 from Dr Peter Kennedy a consultant psychiatrist. The respondent had had a difficult childhood and schooling where he struggled academically and felt he did not fit in. His parents later separated in circumstances where his father, who also suffered from depression, became violent and attempted suicide, the first of a number of such attempts. His father’s mental instability translated into abuse which was directed at the respondent. In his senior years at school, the respondent became further depressed and confused about his sexual identity and began researching ways to commit suicide. After graduating he completed his commercial pilots licence and found stable employment. He was in a relationship for approximately five years but that relationship was some time prior to the incident. That relationship deteriorated significantly which led to deepening depression, alcohol abuse, admissions to hospital for treatment and suicide attempts. During the same period, i.e. prior to the offence, he suffered a devastating experience when his house burnt down and most of his possessions were lost. He now attends Alcoholics Anonymous and is on disability support pension. Once he has regained his health he has the long term goals of doing further study, finding work and ultimately starting a tour boat business. He has a strong loving and supportive relationship with his mother and her sister who is a medical practitioner. [11] He has no previous criminal history. After many years of treatment for depression and alcoholism he consulted Dr Kennedy on 10 November 2013. At the time he was suffering from suicidal ideation with plan and intent; depressed mood which had worsened over the last six weeks but which had been present for a year; anhedonia (inability to feel pleasure); and several other neuro-vegetative features consistent with Major Depression. [12] Dr Kennedy diagnosed him with Major Depressive Disorder of severe degree. He was treated with psychotherapy and pharmacotherapy after being admitted to a -- 7 of 13 -- 8 Belmont private hospital and was discharged on 18 November 2013 i.e. two days before the offence. [13] After being charged with the offence on 1 January 2014 he was readmitted to Belmont Hospital. At that time he was distressed and depressed with the return of suicidal ideation and was treated for safety concerns in the hospital’s secure unit. He was discharged on 3 February 2014 after a successful course in cognitive behavioural therapy. At the time of his discharge he was on a number of psychotropic medications. [14] There were a number of episodes of improvement followed by relapses. His last admission to Belmont Private Hospital for four days was on 14 June 2014 when he had severe depression with suicidal ideation. At the time of sentencing, his major depressive disorder was in moderate remission. Dr Kennedy opined: “His future prognosis, treatment and management will depend very much on what is the outcome of his court appearance on 20 August 2014. If the outcome is unfavourable it is significantly likely that his mood will deteriorate and his suicidal ideation return. I consider that incarceration is certainly likely to pose a major risk to his mental health with a precipitation of a high risk of suicide. Whatever the outcome, it will be highly recommended that William have ongoing psychiatric review and ongoing use of anti-depressant medication which may need to be adjusted overtime depending on his progress and mental state.” Her Honour’s decision [15] Her Honour referred in detail to the submissions which included a comprehensive written submission from Mr Callaghan SC together with copies of various authorities relied upon him which were annexed to the submission. She adjourned to consider the matter, and gave judgment on the afternoon of Wednesday 20 August 2014. In her reasons for judgement she quite correctly focused on what was the real issue between the parties, and that is whether on the evidence there were “exceptional circumstances” permitting her to impose a penalty which did not involve serving an actual term of imprisonment. Her Honour referred to ss 9(4), (5) and (6) of the Penalties and Sentences Act 1992. She carefully related the circumstances of the offending and the circumstances of the offender to the s 9(6) matters that were relevant in the case, and she referred to R v Tootell; ex parte A-G (Qld) [2012] QCA 273, in which the Court of Appeal construed and applied those subsections of s 9 to the circumstances of that particular case. Her Honour also -- 8 of 13 -- 9 referred to the majority judgment of the Court of Appeal in R v Quick: ex parte Attorney General (Qld) [2006] 166 A Crim R 588; [2006] QCA 477 which had dealt with the concept of “exceptional circumstances” at common law. [16] In dealing with the s 9(6) matters her Honour noted that there was no victim impact statement, and indeed the prosecutor had conceded that he did not suggest any negative specific effects on the child. Her Honour noted that inevitably there would be some impact on the child but she also noted that there was no evidence of adverse impacts, and that it was common ground that he was not a sexually naive child. [17] In relation to the age of the child throughout her reasons she incorrectly referred to him as a 13 year old. In fact at the relevant time he was 14 but much closer to 15 given that his birthday was some two and a half months away. This was corrected by her Honour at the instigation of Mr Callaghan SC at the conclusion of her reasons for judgment. [18] She referred properly to the nature of the offence i.e. that it was a serious offence for an adult to have sodomy with a 14 year old child. In relation to protecting the child or other children from the risk of the offender reoffending, she noted his absence of previous convictions and his excellent antecedents and the fact that he was being treated for his serious medical condition and she concluded that he was not at any significant risk of reoffending. No complaint is made about that. Her Honour noted correctly in my view that the experience of going through the Criminal Justice system would be of significant deterrence to a man such as this. [19] Her Honour took into account the need to deter similar behaviour. She also noted that his prospects of rehabilitation were excellent. She referred to the extent of remorse that he had reflected in conversations and particularly with his sister, and that the plea of guilty in itself involved remorse, in that although he was initially not cooperative with police in the sense of denying any sexual contact, his plea of guilty, which obviated the need for the child to give evidence in court, was clear evidence of remorse and rehabilitation. She referred to the report of Dr Kennedy, which was very relevant to s 9(6)(i). She dealt with a submission made by the prosecutor to the effect that the very fact that he committed the offence indicated propensity. That argument is not maintained on appeal. Her Honour dealt with it -- 9 of 13 -- 10 correctly. Clearly the absence of any previous convictions is a clear indication of an absence of propensity to commit offences of this kind. As an aside, the offender Lamb, with whom I dealt with in January, endeavoured to contact the child on a number of occasions after the act of sodomy and was convicted of further offences in that regard. This is in complete contrast to the behaviour of the respondent in this case. [20] She referred, in relation to the accumulation of matters, to the fact that the complainant child was not sexually naïve and that it was a single incident. She referred to the absence of predatory behaviour or threats or manipulation or coercion, and she also referred to the fact that he was not in a position of trust, similar to the situation that pertained in Tootell. [21] She also noted that the major depressive disorder existed prior to the commission of the offence and that in fact he had only been released from Belmont Private Hospital two days prior to the offending. She noted that this was not like many cases where the psychiatric disorder occurs for a multiplicity of reasons but including a reaction to being charged after being charged. She concluded that the combination or aggregation of factors in the case of the respondent was such that she could find that the circumstances were exceptional. The appellant’s position on appeal [22] Mr Cummings alleged three errors on behalf of her Honour, two of which he essentially abandoned during the appeal hearing. The first ground was articulated as follows: “4.1.1 The sentencing magistrate failed to have regard to the maximum penalty prescribed for the offence contrary to section 9(2)(a) of the Penalties and Sentences Act 1992; namely 14 years.” [23] As Mr Cummings fairly conceded, her Honour was told that the maximum penalty was 14 years. As I have indicated, she was misled by a submission made by the prosecutor that the legislature increased the penalty from seven to 14 years in 2010. She correctly understood the limitations imposed on her under s 552H of the Criminal Code. He did not persist with this submission. -- 10 of 13 -- 11 [24] The other ground that was abandoned by Mr Cummings at the hearing was articulated in the written submission as follows: “4.1.3 The sentence imposed is manifestly inadequate to the extent a (sic) Collyer was not required to serve an actual term of imprisonment.” [25] At the hearing Mr Cummings submitted by reference to authorities that given the circumstances of the offence and the circumstances of this particular offender, a term of 18 months’ imprisonment was within the appropriate range for this offence. This was a proper concession. Given the circumstances of the offence itself and the circumstances of the respondent, comparable appellant sentences were not easy to find. While acknowledging obvious differences, the cases of Gilles (ibid) and R v Tunn [1994] QCA 94 (referred to in Mr. Callaghan’s written submission below at paragraphs [15] – [19], and [25] – [26], justified the concession made by Mr. Cummings. [26] The only ground argued was that her Honour erred in finding in the exercise of discretion that exceptional circumstances existed. The ground was articulated in this way: “4.1.2 The sentencing magistrate failed to correctly apply section 9(4) of the Penalties and Sentences Act 1992, in particular by failing to interpret that provision in the context of section 9(12) of the Penalties and Sentences Act 1992.” [27] Section 9 was amended to commence on 1 May 2003 to include the then s 9(5), which was in these terms: “(5) Also, the principles mentioned in subsection (2)(a) do not apply to the sentencing of an offender for an offence of a sexual nature committed in relation to a child under 16 years.” [28] In other words, the principle that imprisonment be regarded as a sentence of last resort did not apply to offences of this nature from 1 May 2003. Section 9(12) of the Penalties and Sentences Act commenced on 28 March 2014. It is in these terms: “(12) This section overrides any other Act or law to the extent that, in sentencing an offender for any offence, the court must not have regard to any principle that a sentence of imprisonment should be imposed only as a last resort.” [29] The effect of that subsection is not explained in any explanatory notes nor has it been the subject of any appellate consideration. It clearly removes from -- 11 of 13 -- 12 consideration in relation to sentencing for all offending any principle that imprisonment be a sentence of last resort. [30] Mr Cummings’ written argument is articulated as follows: “4.12 Once the concept of ‘exceptional circumstances’ became embodied in section 9, it is that provision which is to be applied: R v CBI [2013] QCA 186 per Fraser JA at [11]. That it is the imprecation of this concept became a matter of statutory interpretation; the interpretation of section 9 (sic). It was just such an interpretation which occurred in R v Tootell; ex parte Attorney-General (Qld) [2012] QCA 273 at [25] and not an application of the similarly worded but distinct concept which had developed at common law. On the other hand, the common law provided a backdrop against which section 9 was to be interpreted. 4.13 Section 9(12) of the Penalties and Sentences Act 1992 was enacted after Tootell was decided and before Collyer was sentenced. It significantly modifies the common law. 4.14 The interpretation of section 9 found in Tootell’s case was based on the general principle contained in section 9(2)(a) that imprisonment was a sentence to be imposed as a last resort, to which other parts of section 9 created some exceptions. In particular section 9(4) which applied unless exceptional circumstances were found. 4.15 When Collyer was sentenced, the presence of section 9(12) required section 9 to be interpreted afresh, in particular, starting with the proposition that regardless of the age and antecedents of the offender certain classes offences (sic) required a sentence which required the offender to serve an actual term of imprisonment unless exceptional circumstances are proved. 4.16 The learned sentencing magistrate at no time interpreted section 9 as it existed at the time Collyer was sentenced as opposed to how it stood at the time of Tootell’s case and hence made no reference to section 9(12). 4.17 Had she not done so, the circumstances, individually or in aggregate, would not have amounted to exceptional circumstances within the meaning of section 9 as it currently stands.” [31] As the record reveals, I had some difficulty in fully comprehending the thrust of that submission. I could not understand how, where since 1 May 2003 as a result of amendments to s 9 of the Penalties and Sentences Act 1992 the principle that the -- 12 of 13 -- 13 enactment of s 9(12) imprisonment be a sentence of last resort did not apply to the sentencing of an offender for an offence of a sexual nature committed in relation to a child under 16 years, that the enactment of s 9(12) made any difference to how her Honour should have approached the concept of “exceptional circumstance” in this case. The flaw in the argument I think is contained in 4.1.5 above. It does not properly draw a distinction between offences of violence and offences of a sexual nature committed in relation to a child under 16 years which, prior to Tootell, had already been excluded from the principle that imprisonment be a sentence of last resor,t from all other offending which, since s 9(12) is subject to the same exclusion. In my view, the introduction of s 9(12) does not change the proper approach to determining whether exceptional circumstances exist in a particular case and there is no substance in the argument to the contrary. Conclusion [32] Her Honour did not err in finding that the aggregation of circumstances in this case brought it into the rare case involving exceptional circumstances. She was aware of the serious nature of the offending and the need for deterrence, denunciation and rehabilitation, in balancing all the mitigating circumstances that arose in what is a very unusual case. [33] The appeal is dismissed. -- 13 of 13 --