Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentencing - Indecent dealing with a child - No touching involved - Whether sentence manifestly excessive

"CA'' v The Queen [2000] WASCA 176

Ferry v The Queen [2003] WASCA 207

Goodvinn v The Queen, unreported; CCA SCt of WA, Library No 950358; 2 June 1995

Humes v The Queen, unreported; CCA SCt of WA; Library No 940687; 7 December 1994

McGarry v The Queen [1999] WASCA 276

R v Lonesbrough, unreported; CCA SCt of WA; Library No 950421; 15 August 1995

Santa Maria v The Queen, unreported; CCA SCt of WA; Library No 960582; 1 October 1996

R v Morse (1979) 23 SASR 98

Thompson v The Queen (1993) 8 WAR 387

1 MCLURE JA: I agree with the orders proposed by Pullin JA for the reasons he gives.

2 PULLIN JA: The appellant appeals against a sentence of 16 months' imprisonment which was imposed on 17 June 2005 by Judge Eaton. The sentence was ordered to commence from 16 June 2005. The sentence was imposed in relation to a conviction after trial of indecent dealing with a child under 13. The offence occurred on 26 November 2003. The facts are recorded in full in Judge Eaton's reasons which I do not need to repeat.

3 The appellant, who is 59 years old, and the complainant, who was 11 years old, were in the vicinity of the Midland bus station. The appellant made gestures to the complainant. They consisted of appellant pointing to his groin area and to his mouth and displaying money in his wallet. The appellant intended, and the complainant inferred, that appellant was offering money if the complainant would engage in oral sex. The complainant moved away and the appellant made an obscene comment to her. The complainant then reported the matter to the bus station manager.

4 The appellant has a criminal record which includes offences for indecent acts, indecent assault and wilful exposure, but the last of that type was committed about 12 years ago. In mitigation the sentencing judge was informed that the appellant lived with his 88-year-old mother who has medical problems and who required his care and attention. On the other hand the appellant lacked remorse.

5 This appeal is on the ground that the sentence was manifestly excessive. Reference has been made to a number of cases of indecent dealing which involved either touching or indecent exposure. They were:

"(a) Ferry v The Queen [2003] WASCA 207. In Ferry a sentence of 15 months' imprisonment was imposed on an offender who was convicted following trial of fondling the breasts of 12 year old girl. The offender was in a position of trust at the time and the dealing was the result of at least some preparatory groundwork by the offender. The touching was not simply a momentary aberration. The offender showed no remorse or contrition and could not be regarded as a first offender, although he had not been guilty of any serious offending for more than a decade.

(b) 'CA' v The Queen [2000] WASCA 176 affirmed a sentence of 12 month imprisonment was imposed on the

offender for touching a 11/12 year old girl's 'breast', and 18 months for pulling her pants down.

(c) Humes v The Queen, unreported; CCA SCt of WA; Library No 940687; 7 December 1994. Sentence of 1 year each was handed down with respect to two incidents of indecent dealing by a 34 year old man of a 17 year old girl occurring firstly on a train and later at a railway terminal. One offence involved the offender rubbing his face against the face and lips and neck of the complainant and the other involved fondling her breasts over her clothes.

(d) R v Lonesbrough, unreported; CCA SCt of WA; Library No 950421; 15 August 1995. The court dismissed a Crown appeal against inadequacy of the sentences imposed of $1,500 in relation to each of the three offences of indecent dealing of a girl aged 14 years. One of these offences involved rubbing the complainants inner thigh and another involved feeling her breasts over her clothing 'for a couple of minutes'.

(e) Goodvinn v The Queen, unreported; CCA SCt of WA, Library No 950358; 2 June 1995 the offender was sentenced to 18 months' imprisonment for indecent dealing involving fondling the penis of a child aged about 6.

(f) Santa Maria v The Queen, unreported; CCA SCt of WA; Library No 960582; 1 October 1996 a sentence of 9 months' imprisonment on a 60 year old male for indecent dealing of a 15 year old girl by briefly touching her breasts over her clothing, was set aside, and a fine of $3,500 was substituted.

(g) R v Furlong [1992] 13 Cr App Rep (S) 112. The offender approached a 15 year old school girl who was waiting for a bus and stood behind her. When the girl was getting onto the bus the offender grabbed her on the bottom once with one hand, under her blazer but over her skirt. The offender was sentenced to 9 months' imprisonment, upheld on appeal.

(h) McGarry v R [1999] WASCA 276. The offender was sentenced to three year term of imprisonment. The offender through the telephone directory located the home address and telephone number of the 11 year old complainant. The offender attended at the complainant home and upon seeing her inside, attracted her attention by tapping on the window. As the

complainant approached the window, the offender exposed his erect penis and masturbated until ejaculation. The offender subsequently made three telephone calls to the complainants home, pretending to be a police officer. The offender had a 13 year old record of sexual offending."

6 The sentences in those cases ranged from fines to a sentence of imprisonment of three years. The circumstances vary considerably, all but one involving some touching.

7 I should mention that the sentence of 3 years, which was imposed in the McGarry case, was for planned, persistent and sinister behaviour before and after the offence which warranted the higher sentence. This offence involves spontaneous or opportunistic conduct, involved no touching and, apart from an indecent comment made soon after the gestures, there was no persistence by the appellant. It occurred in a place where a person of authority was close by and to whom the complainant could approach for help. There were no other aggravating factors.

8 The fact that the appellant had not committed any offence for a long time, his personal circumstances and the circumstances of the offence lead me to conclude that the sentence was manifestly excessive, notwithstanding the lack of remorse. I would, therefore, allow the appeal. As a result, I would set aside the sentence. It is therefore necessary to resentence. There is no complaint that the wrong type of sentence was imposed. In other words, it is conceded that immediate imprisonment was the appropriate penalty to be imposed. I would impose a sentence of 12 months' imprisonment, which I have arrived at after applying the transitional provisions in the Sentencing Act 1995 (WA). I would order that the appellant be eligible for parole, which means that the appellant is eligible for parole as from today.

9 MURRAY AJA: I have the misfortune to take a different view. I would dismiss the appeal.

10 It seems to me that this is a case where one needs to bear in mind that it is only upon the ground of demonstrated error on the part of the sentencing Judge that this Court is entitled to intervene. It seems to me that in this case it cannot be said that his Honour made the error identified by the appellant, that his discretion miscarried by the imposition of a manifestly excessive sentence.

11 There is a wide range of sentences imposed for this offence and it seems to me that the sentence imposed by his Honour was a readily available exercise of discretion. I should add that it seems to me that although there was no touching or physical contact between the complainant and the appellant, there are some aspects which demonstrate the seriousness and that the sentence imposed was a warranted exercise of discretion.

12 In the first place there is the age of the child. In the second place there is the fact that the appellant firstly made his indecent acts from diagonally across the road from where she was. In the third place, having attracted no reaction from her in that regard or by gesturing for her to come to him, he approached her again, came to within a couple of metres of her it would appear, and then made the comment about her genitalia to which reference has been made.

13 It was only then that she was able to terminate the contact by moving briskly away. There is no doubt, I think, that there was an element of continuation of the behaviour involved in those factual matters, but thankfully it went no further than that. The sentencing Judge had regard to those matters. His Honour commented on the lack of remorse. His Honour observed that during the course of the applicant's interview by investigating police officers he was not truthful to them and nor was he truthful in the course of his evidence given during the trial.

14 His Honour was fully familiar with the criminal history.

15 Regrettably one sees worse by way of criminal history than in this case but here there are offences of a broadly similar kind having sexual overtones, or manifestly sexual content, which commence in 1972 and included two serious occasions, one resulting in a District Court conviction in November 1983 and the last involving a District Court conviction in 1994 in respect of behaviour committed in 1991.

16 The record to my mind revealed some entrenched behaviour of an occasional kind, but nonetheless it demonstrated, as do all the circumstances of the case, that substantial punishment was required, particularly having regard to the need for personal deterrence. In my opinion his Honour's discretion did not miscarry and I would dismiss the appeal.