Stephen Kay

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1. [1996] QCA 192 C.A. No. 122 of 1996 - THE QUEEN v. STEPHEN KAY
   view source details | 18 Jun 1996 | SUPREME COURT OF QUEENSLAND

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• [1996] QCA 192 C.A. No. 122 of 1996 - THE QUEEN v. STEPHEN KAY
  Publisher: SUPREME COURT OF QUEENSLAND
  Date: 18 Jun 1996
  Archive.org
  Source type: Court record

  IN THE COURT OF APPEAL
  SUPREME COURT OF QUEENSLAND
  [1996] QCA 192 C.A. No. 122 of 1996
  Brisbane [R. v. Kay]
  THE QUEEN v. STEPHEN KAY
  (Applicant)
  Davies JA
  Demack J
  Williams J
  Judgment delivered 18/06/96
  Judgment of the Court
  APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED. APPEAL AGAINST SENTENCE DISMISSED.
  CATCHWORDS:
  Counsel:
  Solicitors:
  CRIMINAL - SENTENCING - MULTIPLE OFFENCES Indecent dealing - whether the final sentence imposed should reflect the criminality of the accused over a period of time - the consequence of separate sentences as opposed to one overall sentence.
  Ms K McGinness for the applicant. Mr MJ Byrne QC for the respondent.
  Legal Aid Office for the applicant.
  Queensland Director of Public Prosecutions for the respondent.
  Hearing Date: 6 June 1996

  JUDGMENT OF THE COURT
  Judgment delivered the 18th day of June 1996
  The applicant seeks leave to appeal against a sentence imposed upon him in the District Court on 15 March 1996 after he pleaded guilty to two counts of indecently dealing with a child under 12 years, and three counts of indecent treatment of a child under 12 years with a circumstance of aggravation.
  The issues raised by the application are rather complex, and cannot be resolved merely by considering the facts of the five counts then before the sentencing judge. The issues can more readily be highlighted if the full history of relevant matters is set out.
  Prior to 27 February 1995 the applicant had no criminal convictions. He was born on 14 April 1940 and was thus aged 52 in 1992 when the relevant events began, and aged 56 when sentenced. For many years he was state credit manager of a large company and held various positions in an accounting capacity before he qualified as a school teacher. He has been a school teacher for a number of years. During the relevant period he had been active in the Church of Jesus Christ of the Latter Day Saints, and also had been active for many years in the scouting movement.
  At a scout camp, where he acted in the role of scout leader, between September and October 1992 he touched a boy on the genitals on two separate occasions. More precise details of the incident are not revealed in the record, though the Court of

  Appeal decision relating thereto indicates the boy's penis was handled.
  At a scout camp on or about 13 April 1993, again when the applicant was acting in the capacity of scout leader, a further offence was committed. A boy under 16 awoke to find his pants pulled down and the applicant [redacted by FLOODLIT]. The applicant also touched the boy [redacted by FLOODLIT] during that incident.
  In June 1993 the applicant kissed a boy under the age of 16 years. There apparently was a circumstance of aggravation associated with that, but again the record does not reveal any more details of that incident.
  In the year 1993 (that is between 1 February and 30 November of that year) the applicant was a teacher at the school the complainants attended. On separate occasions during that period he touched three boys, each aged under 12, on the genital area but outside the clothing. In each instance the boy concerned was a pupil in the applicant's class.
  Finally, late in 1993 two offences were committed with respect to one boy under 12 years of age. Each incident involved a touching of the [redacted by FLOODLIT] through the clothing the boy was then wearing.
  The record does not reveal when the offences came to light nor when the applicant was first charged. One does not know, for example, whether some offences only came to light after the applicant had been initially charged. The history of his

  relevant court appearances and the action taken can be detailed as follows.
  He pleaded guilty on 27 February 1995 to a charge of indecent treatment of a child under 16 years with a circumstance of aggravation. That was the incident in June 1993 when he kissed a boy. For that offence he was ordered to perform 120 hours of community service. That was satisfactorily completed by April 1995.
  He next appeared in court in December 1995 charged with three accounts of assault, and two counts of indecent treatment of a child under 16 years with a circumstance of aggravation. The indecent treatment counts related to the incidents at the scout camp in 1992. The applicant pleaded not guilty, but was convicted on all counts after a trial. He was sentenced on 8 December 1995 to 15 months' imprisonment on each of the indecent treatment counts. No specific recommendation for parole was made. An appeal on the ground that the verdicts were unsafe and unsatisfactory was not successful.
  He next appeared in court in about February 1996 charged with indecent treatment of a child under 16 years with a circumstance of aggravation. This was the offence which occurred at the scout camp on or about 13 April 1993. The applicant entered a plea of not guilty but was convicted. On 1 March 1996 he was sentenced to six months' imprisonment cumulative upon the sentences imposed on a 8 December 1995. Again no recommendation for parole was made.

  If one pauses there and reviews the totality of the sentences the following appears to be the position. Effectively the sentence imposed on 8 December 1995 meant that the applicant would be imprisoned until 8 March 1997, though he would have been eligible to apply for parole on or about 22 July 1996. After the cumulative sentence of 1 March 1996 was imposed the period of imprisonment was extended to 8 September 1997, though he would have been eligible to apply for parole on or about 22 October 1996.
  That was the position when on 15 March 1996 he pleaded guilty to the remaining five charges. It is the sentence with respect to these charges which is primarily the subject of the application for leave to appeal.
  The charges in question related to the three incidents at the school involving different boys, and the two incidents in November 1993 involving the one boy. As noted above each of these five incidents involved touching a young boy on the genitals through his clothing. The prosecutor before the sentencing judge quite fairly submitted that looked at in isolation the "offences fall somewhat to the lower end of the range in so far as the acts themselves are concerned". He submitted that a cumulative six month sentence would, in all the circumstances, be appropriate. Counsel for the applicant before the sentencing judge agreed with that and argued for a cumulative sentence of six months. The learned trail judge rejected those submissions, saying in the course of argument: "It does seem to me he would have got at least three to four years if he had

  pleaded guilty to all charges at the one point of time, and I do consider a six month cumulative sentence is too lenient in this situation."
  In his formal sentencing remarks the learned sentencing judge referred to the applicant's position of trust at relevant times; he was relevantly a school teacher and a scout master. He also referred to the "similar incidents" for which the applicant had already been dealt with by other judges. He mentioned that there had been two trials in respect of the earlier offences. He observed, correctly in our view, that had the applicant been dealt with by the same judge at the one point of time in respect of all offences "a longer term of imprisonment would have been imposed". He then went on:
  "The need for general deterrence is of great importance in this type of case. But this time it is apparent you interfered with seven boys under your care over a period of time. I am not punishing you for matters in respect of which you have already been punished. However, at the end of the day, I consider a sentence of at least three to four years would have been appropriate had all charges been dealt with at the one point of time."
  Against that background his Honour imposed a sentence of 15 months' imprisonment on each count, cumulative with the existing sentences, but concurrent with each other. He made a recommendation for parole on 8 June 1997.
  The practical consequence of that sentence is that the applicant is liable to be held in prison until 8 December 1998, but will be eligible to apply for parole on 8 June 1997. That is in effect a three year sentence to run from 8 December 1995 when the first gaol sentence was imposed, and with an eligibility for

  parole after serving one-half of that sentence. In other words the learned sentencing judge implemented his view that when looked at overall the criminality involved required the imposition of a head sentence of three years.
  The particular offences with which the court is now concerned were particularly serious. Each involved a boy under the age of 12 years. Three occurred on school premises when the teacher-pupil relationship existed. Though no circumstance of aggravation was charged in relation to the other offences the applicant knew and became friendly with the complainant boy because of his position as a scout leader.
  Given the age of the boys and the circumstances in which the offences occurred a significant sentence was called for.
  Looked at objectively it is difficult to argue against the proposition that the overall criminality of the applicant's conduct called for a head sentence of three years' imprisonment.
  In any event, particularly given the persistent nature of the offences, the age of the boys, and the relationship between each boy and the applicant, we cannot come to the conclusion that a sentence of 15 months' imprisonment for the five offences in question was excessive. However one regards the matter it cannot be said that the practical effect of the sentence imposed with respect to the offences in question was manifestly excessive.
  The observation should be made that each of the sentences was imposed in rather unusual circumstances, and at each point of time the sentencing judge was endeavouring to mould a sentence such as would be an appropriate response to the overall

  criminality of the applicant's conduct as revealed at that time. For that reason none of the sentences, nor the decision of this court, should be regarded as having relevance to other situations
  which may come before the courts.
  In all the circumstances application for leave to appeal
  should be refused and the application dismissed.