Criminal law - Appeal against conviction and sentence - Propensity evidence - Manifest excess

Criminal Procedure Act 2004 (WA), s 98

Evidence Act 1906 (WA), s 31A

Bennett v The State of Western Australia [2012] WASCA 64

Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362

Chan v The Queen (1989) 38 A Crim R 337

Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413

Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122

GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272

JD v State of Western Australia [2008] WASCA 147

PDT v The State of Western Australia [2012] WASCA 134

VIM v The State of Western Australia [2005] WASCA 233

Wilson v The State of Western Australia [2010] WASCA 82

1 MARTIN CJ: These appeals against conviction and sentence should be dismissed for the reasons given by Mazza JA, with which I agree.

3 MAZZA JA: This is an appeal against both conviction and sentence. The appellant was charged with one count of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA). The appellant pleaded not guilty and was tried before Keen DCJ and a jury. On 29 March 2012, the appellant was convicted as charged. The appellant was sentenced to 20 months' immediate imprisonment and declared eligible for parole.

4 The primary issue in the appeal against conviction is whether propensity evidence led at the trial was properly admissible pursuant to s 31A of the Evidence Act 1906 (WA). The issue in respect of the appeal against sentence is whether the sentence imposed upon the appellant was manifestly excessive.

5 For the reasons that follow, I would dismiss both appeals.

6 The complainant and the appellant's daughter, both 6-year-olds, were very good friends. On 27 November 2010, the complainant went for a sleepover at the appellant's house. The girls slept in the same bedroom. The appellant's daughter slept on a blow-up mattress, while the complainant slept on a bed.

7 That night, the appellant invited a number of adults over for drinks at the house, including the complainant's father and a man named Jamie Waterfield. The appellant drank a lot of alcohol. Eventually, the complainant's father left the house and the party reached a point where the only adults who were there were the appellant, his wife and Mr Waterfield.

8 At approximately midnight, the complainant came out to the adults, crying and asking to be taken home. The complainant's father came back to the appellant's house and took the complainant home. There she told her mother that 'Allan [the appellant's first given name] touched my nudie [genital area]'. The complainant went on to describe to her mother how the person who had touched her had used a mobile telephone or a torch to

see and that the person had put their hand inside her knickers and 'opened' her 'nudie' (ts 360).

9 In her pre-recorded evidence, the complainant did not specifically identify the appellant as the offender. She recalled that the three adults who were present at the time were the appellant, his wife and Jamie Waterfield. She said that someone came into the bedroom with a phone or a torch, 'lifted' her knickers and 'opened' her 'cat' (another name for her genital area) (blue green AB 121 - 124). The complainant was unable to positively identify the offender. She said that when the offender was in the room, she could hear the voices of the appellant's wife and Mr Waterfield outside (blue green AB 129). She said that she thought it was 'one of the two boys', meaning the appellant or Jamie Waterfield (blue green AB 120). She described the person's hair as 'up', meaning it was gelled and spiky but spiked differently to Jamie's hair (blue green AB 58). She thought that it might have been curly, but she was not sure about this (blue green AB 108, 120). She described what the person did to her 'cat' as, 'I don't know what they were doing that - it might have been checking or playing with it or touching it' (blue green AB 122).

10 Jamie Waterfield testified at the trial. He denied touching the complainant. It was not put to him on behalf of the appellant that he had committed the offence. What emerged from his evidence is that the appellant, on a number of occasions during the night and while in an intoxicated state, went into the house by himself (ts 404 - 405). It was not disputed that the appellant had the opportunity to commit the offence.

11 Evidence was led by the State that a forensic examination of the complainant's underpants revealed, on the inside of the underpants, a mixed DNA profile, including DNA from a man. However, the sample was insufficient to match it to an individual (ts 385).

12 On 28 November 2010, the police searched the appellant's home. A photograph taken from the DVD of the search revealed that the appellant had curly hair (exhibit 5). The police found a battery-powered torch (exhibit 6) and a number of mobile telephones in the master bedroom of the appellant.

13 The appellant made no admissions to the police and did not give evidence at his trial or adduce evidence on his behalf. His defence was that the complainant had dreamt the incident and, if the incident was not the product of a dream, that the State had not proved that the appellant was the offender.

14 The State led evidence from a clinical psychologist, Dr Linda Basson. Prior to the trial, the respondent applied to adduce the evidence pursuant to s 31A of the Evidence Act. The appellant opposed the application. The matter was determined by Davis DCJ at a directions hearing pursuant to s 98 of the Criminal Procedure Act 2004 (WA). On 29 November 2011, her Honour allowed the State to adduce the evidence. Her Honour's reasons for doing so are, with respect, comprehensive. It is unnecessary to refer to them in detail. It is sufficient to state that her Honour was satisfied that all of the preconditions set out in s 31A of the Evidence Act had been complied with (blue green AB 55 - 79).

15 Dr Basson testified that the appellant consulted her in December 2007. He told her that he had been arrested 'for viewing internet child pornography on his computer' (ts 452). Dr Basson said that the appellant told her that he viewed pornography involving girls who were 13 years and under and that on occasions he masturbated while viewing the images (ts 452).

16 Dr Basson said that she saw the appellant on seven occasions up to September 2008. During that time, the appellant told her that 'he was very attracted, sexually, to young children' and that he 'had sort of strong sexual fantasies about young children' (ts 455). He also told Dr Basson that 'he was afraid of - of the urges, and - and whether they may get him in trouble one day' (ts 453). Dr Basson discussed with the appellant ways of managing his urges. In September 2008, the appellant made the decision to stop seeing Dr Basson (ts 455). There was no evidence as to the success of any treatment given by Dr Basson.

17 Dr Basson also testified that on 29 November 2010, the appellant contacted her practice for a consultation, having been charged with the present offence. This evidence was not the subject of Davis DCJ's ruling, but it was led without objection, presumably because the appellant made no admissions of any wrongdoing to Dr Basson (for example, ts 459). There is no ground of appeal in respect of this aspect of Dr Basson's evidence. Dr Basson's evidence was not materially challenged on any aspect in cross-examination.

18 The background to the appellant consulting Dr Basson is as follows. In 2007, the appellant was charged with a Commonwealth offence which was, in essence, an allegation that he had accessed or possessed child exploitation material. The appellant denied the charge and, in the end, it was withdrawn. Based on the submissions before Davis DCJ, it appears that the Commonwealth prosecutor took the view that the evidence was not strong enough to establish that the appellant had deliberately downloaded the material in question or viewed it (blue green AB 60). At the directions hearing before Davis DCJ, the State proposed to adduce evidence to the effect that the appellant had, in fact, possessed the material. Her Honour refused to allow the State to adduce this evidence because, in effect, much of the time in the trial would have been taken up with proving the appellant's possession of this material. However, her Honour was prepared to allow the State to lead evidence of the 2007 charge.

19 Her Honour reasoned that it was necessary for the jury to hear about the fact of the 2007 charge because it was in that context that the appellant consulted Dr Basson. It was considered better to inform the jury of this rather than say nothing and expose the appellant to the risk that the jury might speculate about why the appellant had gone to see Dr Basson. Her Honour considered that any prejudice to the appellant could be properly dealt with by direction.

20 At the trial, Keen DCJ gave the following direction, with the agreement of the parties, immediately prior to Dr Basson's evidence:

Members of the jury, the next witness that the State is going to call in this matter is a psychologist, Dr Linda Basson, and you'll hear from her in just a few minutes. But there are some things by way of a preamble to her evidence that I need to say to you. What I am about to say to you is agreed between the parties, in other words what I'm about to say to you is the form of words that the parties have agreed that I should give you and it's given to you, as I say, as a preamble to the witness's evidence and so that you can see the context in which she gives her evidence and context within which you can deal with that evidence.

And that preamble is this: that in 2007 the accused's house was searched by officers from the Australian Federal Police. During that search a computer was located which had been used to access child exploitation material through the Internet. That child exploitation material constituted a certain number of photographs of young female children in various stages of undress in provocative poses. None of the images contained sexual activity between adults and children. The accused was charged with possession of child exploitation material but the charge ultimately did not proceed to trial. As a result of the charge, the accused went to see his general practitioner who referred him to a consultant psychologist, Dr Linda Basson. Now, members of the jury, it is unnecessary and unhelpful to and, indeed, that you should not speculate as to whether the accused was guilty or not guilty of the charge of possession of child exploitation material As I say, this information is provided by way of background to those appointments with Dr Basson (ts 450 - 451).

21 Later, when the learned trial judge was summing up the case to the jury, he said:

You then heard from Linda Basson, who was the clinical psychologist involved with the accused. You will recall that prior to giving her evidence, I informed you of some of the background to the accused seeing Dr Basson. You will recall it was because police, during the course of the search, had found some child exploitation material on the accused [sic] computer, and he had been charged with possession of it. Ultimately, that charge didn't proceed. I reminded you then and this morning, and I remind you once again it is unnecessary and unhelpful to, and you should not speculate as to whether the accused was guilty or not guilty of that charge, and why the charge was not proceeded with (ts 519).

22 The grounds of appeal against conviction are as follows:

1. The learned Judge erred in law in permitting the Respondent to lead evidence at trial before the jury of conversations and notes of those conversations between the appellant's psychologist and the appellant, made some years prior to the commission of the offence the subject of this appeal.

1.1 This evidence did not constitute propensity or relationship evidence within the meaning of s 31A of the Evidence Act 1906 ('the Act') and was therefore inadmissible pursuant to that section of the Act.

1.2 The learned Judge erred in determining that fair-minded people would think that the public interest in adducing the evidence must have priority over the risk of an unfair trial.

1.3 The learned Judge erred further in the determination(s) to admit the evidence because

1.3.1 the admission of such evidence was in fact and in law unfair to the appellant;

1.3.2 the prejudicial effect of such evidence was significantly disproportionate to its probative value, and

1.3.3 the admission of such material as evidence is not in the public interest.

1. The learned Judge erred in law in permitting the Respondent to lead evidence at trial before the jury, of the fact that the appellant had been charged in 2007 with a Commonwealth offence of viewing child exploitation material.

2.1 The charge referred to did not proceed at all and was discontinued by the Commonwealth and it was thereby not fair to lead such evidence against the appellant at the trial.

2.2 To the extent that the learned Judge admitted the evidence relying upon s 3lA of the Act, the appellant otherwise relies upon the particulars in Ground 1.1 - 1 .3 above.

1. The appellant did not receive a fair trial according to law and there has been a miscarriage of justice.

3.1 The admission of the purported propensity and relationship evidence (referred to above) swayed the jury from its primary task of determining (on the facts of the case the appellant pleaded not guilty to) whether the prosecution had proved the Respondent's case beyond reasonable doubt,

3.1.1 as to whether an offence had occurred as alleged (or at all) and

3.1.2 as to whether the accused was the person who committed the crime (if indeed a crime was committed as alleged or at all).

23 Leave to appeal has been granted in respect of ground 1. The question of leave to appeal in respect of grounds 2 and 3 was referred to the hearing of the appeal. Ground 3 adds nothing to ground 1. If, as contended, the evidence of Dr Basson was inadmissible, it would follow, in the circumstances of this case, that there had been a miscarriage of justice.

24 The appellant makes no complaint about the learned trial judge's summing up. It is not said by the appellant that his Honour made an error or omission in his instructions to the jury. This was expressly confirmed by counsel in his oral submissions.

25 Section 31A of the Evidence Act is as follows:

31A**.** Propensity and relationship evidence

(1) In this section -

propensity evidence means -

(a) similar fact evidence or other evidence of the conduct of the accused person; or

(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;

relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.

(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -

(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.

26 The ground of appeal, when read with the written submissions, alleges that Dr Basson's evidence was not admissible pursuant to s 31A of the Evidence Act because:

(a) it did not constitute propensity or relationship evidence within the meaning of s 31A(1);

(b) the evidence did not have significant probative value; and

(c) fair-minded people would not think that the public interest in adducing the evidence had priority over the risk of an unfair trial.

27 The appellant further submitted that even if the criteria for admissibility under s 31A were complied with, the evidence should nevertheless have been excluded in the exercise of court's discretion and because admission of the material was not in the public interest.

28 These last two points can be disposed of quickly. The proposition that evidence properly admissible pursuant to s 31A of the Evidence Act may nevertheless be excluded in the discretion of the trial judge has been rejected in several decisions of this court, most notably in Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [140]. It was not argued that any relevant decision of this court was wrong and should be overruled. In oral argument, the appellant's counsel eschewed any argument on the question of public interest or privilege.

29 The proper interpretation of s 31A of the Evidence Act has been dealt with in this court in a substantial number of cases including Donaldson, Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362, Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 and Bennett v The State of Western Australia [2012] WASCA 64.

30 Section 31A requires a court to be satisfied of three things before evidence will be admissible under the section. First, the evidence must be either propensity or relationship evidence or both: s 31A(1). These definitions are extraordinarily wide in their scope. For example, the definition of propensity evidence goes beyond what the common law understood by that category of evidence. It embraces not just similar fact evidence, but also evidence of the character or reputation of the accused, or of a tendency that he or she has or had, as well as 'other evidence of the conduct of the accused person'.

31 Second, the evidence must, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value: s 31A(2)(a). Of course, for evidence to be probative of something, let alone significantly probative, it must be relevant. 'Significant' in context means 'important' or 'of consequence'. Whether evidence is significant depends upon the fact in issue and the importance that the evidence in question has to the proof of that fact.

32 Third, the probative value of the evidence must be such that, when compared to the degree of risk of an unfair trial, fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial: s 31A(2)(b). This requires a court to weigh the probative value of the evidence against the risk that the trial will be rendered unfair by its admission. This involves an assessment not of what the presiding judicial officer would think, but what the hypothetical fair-minded person would think. The risk of an unfair trial referred to in s 31A(2)(b) is, in the context of the present case, that the jury would act illogically and reason that simply because of his sexual interest in young children, he must have committed the offence charged.

33 In oral submissions, the appellant's counsel conceded that Dr Basson's evidence to the effect that the appellant confessed to her that he had a sexual interest in young girls was both propensity and relationship evidence, and that the evidence had significant probative value. These concessions were correctly made. As I said, the definitions of propensity and relationship evidence under s 31A(1) are very wide. Evidence that the appellant has a sexual interest in young children is propensity evidence because it reveals a tendency that the accused person has, and it is relationship evidence because it reveals an attitude that the appellant had over a period of time towards a class of persons, namely young girls.

34 It is clear that the evidence had significant probative value. The issue at trial was whether the appellant was the person who had indecently dealt with the complainant. In reality, if the jury accepted the child's evidence that she had been dealt with as she described, the issue became whether the appellant was the offender. The fact that one of only two men in the house at the relevant time had revealed in the recent past that he had a sexual interest in young girls was highly probative of the question of whether the appellant was the offender. Further, the appellant had not merely expressed sexual interest in young girls, he expressed an urge to act out that interest and was afraid that he would act in the future.

35 The appellant's argument at the hearing of the appeal boiled down to the proposition that fair-minded people would not think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. When the appellant's counsel was asked in oral argument why this was so, counsel responded: because it was 'overwhelming'.

36 The risk of an unfair trial is relevantly the risk that a jury would illogically reason in the way I explained earlier. That process of illogical reasoning is to be distinguished from the process of rational reasoning which gives the evidence its probative value. In this case the probative value of the evidence derived from the appellant's admission of his sexual interest in young girls, his expressed urge to act out that interest and fear that he would do it again, the unusual nature of the offence, and the fact that the appellant was one of only two men in the house that evening. In that context, the prospect of the jury following an irrational and illogical path of reasoning rather than the rational process of reasoning compelled by the probative value of the evidence was slight.

37 In these circumstances, a fair-minded person would think that the public interest in adducing the evidence had priority over the risk of an unfair trial.

38 Davis DCJ made no error in admitting Dr Basson's evidence pursuant to s 31A of the Evidence Act. No miscarriage of justice has been demonstrated.

39 For these reasons, there is no merit in ground 1 and it must be dismissed.

40 Mr Hanbury, for the appellant, submitted that even if Dr Basson's evidence was admissible, the jury should not have been told at all about the 2007 Commonwealth offence. In effect, he submitted that the information was irrelevant. He further submitted that once the jury knew about the offence, there was a real risk that it would use this fact to convict the appellant despite any direction given by the trial judge.

41 The fact that the appellant had been charged with the 2007 offence was not irrelevant. I accept the State's submissions that the fact that the appellant had been charged with the 2007 offence was relevant in order to explain the context in which the appellant consulted Dr Basson in late 2007 and 2008. To do otherwise might reasonably have led to the jury speculating about why the appellant had consulted Dr Basson. By explaining the context and combining that explanation with a clear and unequivocal direction to the jury not to speculate about the guilt of the appellant in relation to the 2007 charge, any potential prejudice caused by the admission of the evidence was effectively ameliorated. No complaint was made about the content of the learned trial judge's directions in respect of the 2007 charge. In this regard, the appellant's counsel agreed to the content of the preamble his Honour read to the jury before Dr Basson gave her evidence. His Honour's directions in the summing up substantially reflected the preamble. His Honour's directions were sufficient to guard against any unfairness that may potentially have arisen as a result of the jury being informed about the 2007 charge. I do not think the nature of the evidence was such that a jury would have been incapable of acting on his Honour's directions.

42 There is no merit in ground 2 and I would not give leave to appeal in respect of it.

43 As I indicated earlier in these reasons, ground 3 adds nothing to ground 1. As I have dismissed ground 1, it follows that I would dismiss ground 3.

44 In respect of the appeal against conviction, none of the grounds have been made out. The appeal must be dismissed. I would make the following orders:

1. Leave to appeal in respect of grounds 2 and 3 is refused.
2. The appeal is dismissed.

45 The appellant alleges that the sentence that was imposed upon him was manifestly excessive in that the wrong type of sentence was imposed. It is submitted on his behalf that his Honour should have imposed a suspended term of imprisonment. Alternatively, it is submitted that, if an immediate term of imprisonment was the only option open, that term should have been substantially less than 20 months.

46 The relevant appellate principles applicable to this appeal are well known and were succinctly and accurately summarised by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2].

47 In order for the appellant to succeed in respect of his grounds of appeal, which allege implied error, it is necessary for him to demonstrate that the sentence imposed was plainly unjust or unreasonable. Whether the sentence can be characterised in this way requires an appellate court to view it in the perspective of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies in a scale of seriousness of offences of that type, and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.

48 The maximum penalty for the offence of indecent dealing with a child under the age of 13 years is 10 years' imprisonment.

49 In respect of the seriousness of the offence, his Honour said:

It is true to say that this offending is not at the high end of offences of this nature. Nevertheless, it is not at the low level either. It involved skin-on-skin contact with the genitals of a six-year-old girl. It was of relatively short duration and only on the one occasion (ts 551).

50 His Honour said that the offence was aggravated by the fact that it was committed in 'breach of the trust that was placed in [the appellant] by [the victim's] parents' (ts 551) This is clearly a reference to the fact that the victim had been allowed to go on a sleepover at the appellant's house and as such, the victim's parents trusted that the appellant would look after their child and not deliberately expose or subject her to harm. Of course, the victim was, by virtue of her very young age, vulnerable.

51 His Honour noted that the appellant knew that he had a sexual attraction to young girls and that he had in the past sought out child pornography. Yet, despite these things, he allowed the complainant to sleepover at his house and then chose to 'over indulge' in alcohol, thus lowering his inhibitions (ts 552).

52 His Honour gave emphasis to both specific and general deterrence. The emphasis on specific deterrence was based on the appellant's admitted sexual interest in young girls (ts 551). His Honour also noted the impact upon the victim. In this regard, he had before him a short victim impact statement from the complainant which articulated in simple terms the immediate impact of the offending upon the complainant. The learned sentencing judge noted from her appearance when giving evidence that she was 'clearly quite distressed by the whole occurrence' (ts 552). He recognised that this kind of offending can have long-term and lasting effects on children. His Honour took into account, as matters favourable to the appellant, his prior good record; his constant work history; his stable and supportive family; and, perhaps generously, the impact of his offending upon his family (ts 552).

53 The range of sentences customarily imposed in respect of the offence of indecent dealing of a young child was recently discussed in JD v State of Western Australia [2008] WASCA 147; GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272; and PDT v The State of Western Australia [2012] WASCA 134.

54 There is no tariff for offences involving sexual offences against children, but ordinarily, acts of indecent dealing by adults with young children, especially when committed in circumstances of breach of trust, will result in the imposition of a term of immediate imprisonment. As was noted in both JD and PDT, custodial terms for single incidents of indecent dealing at the higher end, that is, involving fondling of genitalia, did not exceed 18 months' imprisonment pre-transitional. In transitional terms, that equates to 12 months' imprisonment. However, pre-transitional standards must now be viewed in light of more contemporary standards, including the fact that there has been a firming-up of sentences with respect to sexual offences committed against children: VIM v The State of Western Australia [2005] WASCA 233 [288]. Further, the range of sentences historically imposed, while relevant to the purpose of ensuring broad consistency, are flexible rather than rigid and are not the only measure of whether a sentence in a particular case is manifestly excessive. In the end, each case must be judged having regard to its own circumstances.

55 The personal circumstances of the offender in cases such as this do not afford much mitigation because of the need to provide general deterrence. In the present case, while there were some personal circumstances in his favour, there was no expression of remorse, he had a sexual attraction to young girls and he remained at risk of reoffending.

56 The appellant submitted that the sentence was manifestly excessive because the seriousness of the offence was not such that only imprisonment could be justified. The appellant based this submission on the following:

(1) the fact that the appellant had no relevant previous convictions;

(2) the absence of violence being used to overcome resistance;

(3) the absence of physical injury being suffered by the complainant;

(4) the participation of the appellant in psychological counselling and the contents of a psychological report which indicated the appellant had a moderate risk of re-offending;

(5) the fact that the offence occurred as part of a single transaction in a short space of time;

(6) the fact that the appellant was highly intoxicated at the time of the offence; and

(7) the unusual nature of the acts constituting the offence.

57 It is plain from his Honour's sentencing remarks that he took into account factors (1), (2), (4), (5) and (6). His Honour did not make express reference to (3), but it must have been obvious to him that the complainant had not suffered a physical injury. Factor (6) was an explanation but not a mitigating circumstance. As his Honour pointed out, the appellant chose to become intoxicated while the victim was in his care, knowing that he was sexually attracted to young children and had difficulty controlling that urge. Finally, (7) is hardly mitigating. The act committed by the appellant was unusual, but it reflects his aberrant tendency and had an aspect of perversion.

58 I accept that the sentence imposed by his Honour was a severe one for a single incident of indecent dealing with a child under the age of 13. However, I have not been persuaded that it was plainly unjust or unreasonable. The victim was young and vulnerable. The appellant had been entrusted, albeit on a temporary basis, with her care in circumstances where he knew that he had a sexual attraction to young children and must have known that it was necessary for him to control himself and any urges that he might have. Instead, he voluntarily intoxicated himself and took advantage of the situation that presented itself by touching the child on her genitals, causing her distress. The use of the mobile telephone or torch shows that there was some premeditation to the offending. The appellant cannot and is not to be punished for taking the matter to trial but having done so, he has no guilty plea to call upon as a source of mitigation. He is not truly remorseful.

59 There are real issues in this case of specific and general deterrence. The appellant poses a not insignificant risk of reoffending. The sexual abuse of children is a serious crime. So often the wellbeing and happiness of children is adversely affected by such abuse and sometimes in ways, and for lengths of time, which cannot be anticipated. The safety of children is of paramount importance to the community.

60 The circumstances of the case were far too serious to warrant anything other than immediate imprisonment. The length of the sentence, while substantial, was not excessive. In my opinion, the grounds of appeal have not been made out. I would dismiss the appeal.