Court of Appeal (Qld)|2002-10-07|Before: Holmes J, Commission J, McPherson JA, Cullinane J, Pherson JA

R v Craig; exparte A-G (Qld) [2002] QCA 414 (7 October 2002)

MR M J COPLEY (instructed by the Director of Public Prosecutions (Queensland)) for the appellant

McPHERSON JA: I ask Justice Holmes to give the first set of reasons.

HOLMES J: The Attorney-General appeals against sentences imposed on the respondent on two counts of permitting himself to be indecently dealt with by a child, one count of indecently dealing with a child, and one count of exposing a child to an indecent act. In each case the aggravating circumstances were that the child was under 12 and was under his care.

The respondent pleaded guilty on an ex officio indictment to all four counts in the District Court on the 8th of August 2002 and was sentenced to eighteen months' imprisonment on each count suspended after serving four months, with an operational period of three years.

The respondent was 43 years of age at the time of the offences, a married man with three children. He has no prior criminal history. He was principal of a small school in northern Queensland. The offences the subject of this appeal were all committed against a grade 7 student at the school who was aged 11 years at the time.

It was the respondent who disclosed the offences to the police in December 2001. That seems to have come about after he became aware firstly, in June 2001 that the Criminal Justice Commission was investigating reports of his swimming naked in a creek near the school while children were about, and secondly, at about the same time, that the complainant had made reference in a committal proceedings against another person to his having got her to massage his feet down at that creek.

At any rate, in October 2001 the respondent telephoned the Cairns police and made an appointment to speak to them at the end of the school year in December. In the meantime, on the 9th of December 2001, he wrote a letter of apology to the complainant making clear his betrayal of trust, his complete responsibility for what had happened, and his remorse. On the 17th of December 2001 he gave a full account of events to the Cairns police. The counts on the indictment were framed directly from his confession.

The offence the subject of the first count of indecent treatment occurred between the 1st of July 1999 and the 1st of September 1999. On an occasion when the complainant child had attended his house to use his computer the respondent lay naked on a couch in his lounge room and had her massage his feet. The offences, the subject of counts 2, 3, and 4, were a series of events occurring on one occasion at the creek adjacent to the school in November 1999.

Count 2 involved the respondent, having swum naked in the creek, getting out and lying down on the creek bank, and asking the complainant to massage his feet. As she was doing that the respondent told her to keep going higher up his legs. When her hands neared his genitals he took one hand and moved it up and down his penis for a short time.

Count 3 followed on from count 2 when the respondent asked the complainant to massage his back. She sat on his back to do that. He complained of her clothes being rough on his skin and told her to remove them, which she did.

She then lay on the respondent's back and while he masturbated, he guided her hands up his legs. He then sat up and leaned towards her, intending to touch her, with his face close to her pubic area, but desisted then from any touching. But he did then touch her naked breasts for a matter of, as he described it, seconds.

Count 4 followed on from count 3, and involved the respondent lying down again and masturbating until he ejaculated while the complainant was in close proximity. According to the respondent, he apologised to the complainant after these events on the walk with her back to the school.

The complainant provided the first of three statements to the police in December 2000, but made no mention of the matters the subject of the indictment. On the 3rd of December 2001, she provided a second statement to police, to the effect that she had massaged the respondent's feet while he lay naked by the creek.

In her third statement of 16th of January 2002, she disclosed further details of the incident, but still fell short of the matters already confessed to by the respondent. The aggravating features of the four counts were, as I have said,that the complainant was under 12 years at the time the offences were committed and she was under his care.

Of course it was a very serious matter that he was the principal of the school she attended and that meant that he could, in effect, direct her to do what he pleased.

In sentencing him, the learned Judge pointed out that an extreme breach of the trust placed in the respondent by the complainant, her parents and the community had occurred. There was a substantial age difference between the respondent and the complainant; and the learned sentencing Judge correctly characterised the incident as a mature adult, abusing a child, for sexual gratification.

However, there were, as her Honour also recognised, a number of mitigating features in the case. These were that the respondent's behaviour was totally out of character. He had cooperated by voluntarily going to the police and confessing and proceeding to plead to an ex officio indictment. He had demonstrated his genuine remorse.

He sought and was continuing to receive, at considerable expense, ongoing treatment, with positive results. Twenty-eight detailed and considered references, many from teaching colleagues and parents of children whom the respondent had taught, were tendered.

They made it clear that in the nine years he had been principal of the school, he had made a very great contribution and was extremely well regarded in the community. Some of them also suggested that at the period during which he committed the offences, he was subject to exceptional stresses. He had, of course, lost his career as a result of the offences.

It should also be noted that the victim impact statement completed by the complainant, who is now 14 and seems a very level headed young woman, does not suggest that the events had severe consequences for her.

The question here is whether the sentence imposed by the learned sentencing Judge was outside the range of a proper sentence discretion; but an Attorney-General's appeal should be treated with considerable circumspection, see the Queen v. Gillies, Ex Parte Attorney-General [2000] QCA 503, at page 6.

The appellant does not cavil with the head sentence of eighteen months' imprisonment. The argument is rather that suspension after four months has resulted in a manifestly inadequate penalty and that the sentence which should have been imposed is one of 18 months' imprisonment, suspended after six to eight months.

These were serious offences, or offences made particularly serious, by the fact of the respondent's abuse of his position as school principal, but the starting point here is that the head sentence is appropriate. That is accepted by the appellant and the need for deterrence was, in my view, properly recognised by the period of four months in actual custody.

There were extraordinary circumstances in this case, which justified suspension after that relatively short period. Had it not been for the respondent's confessions, none of the charges is at all likely to have been before the Court and the applicant was otherwise of impeccable background and character.

In my view, the sentence was an entirely appropriate exercise of discretion by the learned sentencing Judge and I might add, to increase the period of actual custody from four months to six months seems to me mere tinkering, particularly inappropriate on an Attorney-General's appeal. I would dismiss the appeal.

R v Craig; exparte A-G

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Judgment (28 paragraphs)

R v Craig; exparte A-G (Qld) [2002] QCA 414 (7 October 2002)

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