A-G v Tooley [1996] QCA 462

Court of Appeal (Qld)|1996-11-01|Before: Davies JA, Derrington J, Ambrose J

The respondent was sentenced to three years' imprisonment, to be suspended after serving three months for an operational period of five years on a charge of maintaining an unlawful sexual relationship with a child under sixteen years. He was also placed on three years' probation with conditions in respect of a number of counts of permitting indecent dealing by a child under twelve, indecent dealing with a child under twelve and exposing a child under twelve to indecent behaviour, such offences having been committed over a period of eighteen months on six separate occasions. Those offences were the manifestations of the first charge.

At the relevant time the child was about five years old, the daughter of the respondent. She was a willing participant and there was no attempt at penetration. While neither of these is a matter of mitigation, it means, in each case, that a matter of aggravation is absent. Prior to his arrest, the respondent was desisting from continuation of the offences of his own volition and this may have prompted the child's mention of the matter to her mother.

Apart from these offences he has no criminal history, and his very good character is particularly exemplary because of his personal circumstances. He had little or no family life as a child except with various foster parents when he was not residing in an institution. During part of this time he suffered some physical and sexual abuse, and there were many assaults on his self-esteem. He is part aborigine and his intellectual level falls in the borderline range between mentally retarded and low average.

Through no fault of his, for he has otherwise been a good husband and father, he has encountered domestic problems of some magnitude, particularly in respect of health disabilities of some of the children. Probably associated with this, his wife suffered some depression, and there were significant consequential sexual problems. However, it seems that the family functioned well otherwise.

This appeal against the sentences imposed below is brought by the Attorney on the ground that they are so manifestly inadequate as to indicate an error in principle by the learned sentencing judge, probably in failing to give adequate weight to the factors of harm to the child and deterrence of other potential offenders. This is the only argument advanced. It is conceded that the respondent is unlikely to need further deterrence and the Attorney does not challenge any of the many positive personal features favouring him.

The respondent's attempts to cease his wrongful behaviour, his remorse that led to his highly incriminating confessions and his good character otherwise, despite the tribulations of his childhood and the burdens which he carried, form a body of personal factors relevant to mitigation of sentence that are about as substantial as one could find in a case such as this. In this way, it is a very unusual case.

As against that, the factors relied on by the Attorney are very serious, and there is some ground for the complaint that inadequate attention to these was paid in the sentencing process in favour of the matters of mitigation referred to above.

By reference to cases that are comparable in substance, and having regard to the intention of Parliament in the legislation creating this offence, with its substantial penalty, we would have allowed for a longer period of imprisonment before suspending the sentence. However, because of the force of the mitigating factors, it is not possible to say that the sentence imposed was so inadequate as to reveal any error in principle. It is within the permissible range, but at the lowest level within that range.

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