R v L [1994] QCA 380

Court of Appeal (Qld)|1994-09-29|Before: McPherson JA, Pincus JA, Ambrose J, Mr P

This is an application for leave to appeal against sentences imposed in the District Court on 5 May 1994. Upon sentence the applicant was taken into custody where he remained for about 21 days when he was granted bail upon the institution of this application for leave to appeal against sentence.

The applicant pleaded guilty to four counts of indecent dealing - three of them with a girl under the age of 16 and the fourth, dealing with a boy under the age of 16.

The first two counts related to a girl 5 years old at the time of the offences.

The third count related to a girl of 12 to 13 years of age at the relevant time.

The fourth count related to a male child 10 years of age at the relevant time.

Upon his plea of guilty, the applicant was sentenced to two years imprisonment on the first count, three years imprisonment on the second count, one year six months imprisonment on the third count and one year imprisonment on the fourth count. All sentences were to be served concurrently and a recommendation was made that the applicant be eligible for parole in respect of all sentences upon the expiration of three months from the date of sentence.

It is unnecessary to go into the details of each of the offences. With respect to the indecent dealing with the girls, the first involved touching or rubbing the child's vagina; the second involved the applicant inserting his penis into the mouth of a girl; the third involved rubbing the vagina of a girl and inserting his finger into it and the last involved touching the penis of the male child.

At the time when the offences were committed, the applicant was a guest in the house of the parents of the child. He was a family friend who had become acquainted with the father of the children.

A very unusual feature of this case involves the delay in the offences coming to light and the part that the applicant played in bringing them to light.

All the offences were according to the prosecutor committed in or about the year 1968; it appears that similar incidents occurred on various occasions between 1968 and 1971. The applicant ceased to have regular contact with the children's parents after 1971.

As the years went by his conduct with respect to the children seems to have played upon his mind. He turned to religious activity and has been very involved with it for many years. He obviously became persuaded that his activities with the children were quite disgraceful. In the course of an interview with police officers held on 30 September 1993, he observed "I am not making excuses. I am not asking for mercy, I just hope these people can find it in their hearts to forgive me. That's all." He continued:

"... I've been attending Church for quite a number of years, and I know what God's standards are, I've repented before God, I haven't done anything like that for a good 10 years. ... I do believe that God can forgive everything, and I've confessed this to him ... and I believe he is able and willing to forgive ... I'm not making excuses, what I did was foul, I regret it. I'm very sorry for it and I turn away from it. I don't know what else I can say."

It is clear upon the whole of the evidence that the applicant did in fact experience great remorse with respect to the conduct to which he pleaded guilty.

It emerged in the evidence that in 1991 the applicant approached police officers and discussed with them the matters to which he has pleaded guilty. He admitted that there were "many, many" occasions on which he had become involved sexually with the children. It appears that the police officers to whom he revealed the conduct, which was then obviously a worry to him, did not embark upon an investigation. When they declined to take such step the applicant made contact with the mother of the children; he then desired to make a visit to the family, apparently to talk to the girls about his conduct some 20 years earlier; when advised of the prospective visit, one of the girls told her mother what had happened - i.e. that the applicant had molested her when she was a child. The other children then spoke of the applicant having molested them, but it seems that these revelations did not lead to any contact with the police.

The applicant then made an appointment to speak with police officers on 30 September 1993, when he informed them of his conduct back in the late 1960's. The police officers recorded the interview after which the applicant was arrested and it seems that the police then went to speak to some of the members of the family. All the children had by this time reached maturity. Eventually the police obtained "complaints" and thereupon proceedings were instituted. One of the complainants involved became upset when the matters were raised after so many years. We assume that some psychological impact was caused to each of the complainants. None of the children or members of their family was required to give evidence in committal proceedings. The applicant cooperated in having an ex officio indictment presented so that it was unnecessary for the children to re-live the events which had occurred so long ago. The applicant pleaded guilty to the offences on 5 May 1994.

The applicant was arrested after the record of interview.

Consideration of the terms of the record of interview between investigating police officers and the applicant on 30 September 1993 indicates that the applicant seems to have been anxious to describe his activities of 25 years ago in a way which cast him in the worst possible light. Of one incident concerning a girl occurring about 10 years ago he said that he had "run his foot up her leg". He said that he had "further intentions" and that he believed he had bare feet and that his intentions were to interfere with her sexually, that is to touch her private parts. He said initially it was with the foot and "I know I would have gone further had she not cried out and left". He agreed after questioning by the police officers that as far as he had gone was to place his foot on her leg. When asked whereabouts on the leg, he said:

"I don't exactly know, if I knew I'd touched her vagina I'd declare it, I don't recall."

When asked what he would have done had the child not called out,

"I would have made an approach to touch her with my hands, I'd have to imagine, I'm sure I would have, I had some attempt to take it further."

When asked whether he derived any satisfaction from touching the girl's leg with his foot, he said:

"I am not sure what state I was in emotionally, um, I really don't know, I may have, I did drink heavily at some stage in my life. I can't blame it on the drink, I don't know exactly how I really felt emotionally, but my intentions were not honourable. I had intended to molester to the point where I believed I could have got away with it."

When asked what point that would have been, he said he did not really know. This incident seems to be the one "a good ten years ago" since which he said he had repented and overcome this kind of behaviour. Not surprisingly, the police did not prefer a charge against the applicant with respect to this brief contact with the girl he specified. His "confession" of his conduct on this occasion however highlights his remorse and anxiety to make a clean breast of his activities of 25 years ago and subsequently, which have obviously been a heavy weight to bear as he has matured.

The applicant was born in February 1946. He is therefore 48 years of age at the present time. At the time of the offences to which he pleaded guilty, he must have been about 22 years of age.

It is quite clear on the material that had the applicant not persevered in his attempt to confess his behaviour to officers of the police force and as well to the family of the complainants, the matters would never have been brought to light.

The facts of this case are therefore both unusual and exceptional, when viewed in the light of circumstances normally found where persons are convicted of offences of this sort committed many years ago.

Under s.11 of the Criminal Code, the applicant could not be punished to any greater extent than was authorised under the law in force at the time of his commission of the offences. At that time the offences charged in Counts 1 and 2 attracted a maximum penalty of 5 years imprisonment (under the current law the penalty is 10 years), that charged in Count 3 a maximum penalty of 2 years (under current law 5 years) and that charged under Count 4 a maximum penalty of 7 years (under current law 5 years) Counsel were unable to refer us to the range of sentences imposed for similar offences 25 years ago.

Undoubtedly, in most cases where adults indecently deal with immature children in ways similar to the ways in which the applicant dealt with the children in this case, a custodial sentence will be imposed. Very special circumstances however may justify a noncustodial penalty or a suspended sentence. H v. Regina (C.A. No 144 of 1993).

In the exceptional circumstances of this case, therefore, it is relevant to consider the effect that the applicant's sense of guilt has obviously had upon him during many years which have intervened between the time of the offences and the time of his conviction. In fact, there can be little doubt in this case that it is remorse which has operated upon his conscience and led the applicant to disclose and plead guilty to these offences.

The learned sentencing judge obviously took that into account when imposing the sentences which he did and in making the recommendation for release upon parole, three months from date of sentence.

In passing sentence, the learned sentencing judge observed that:

"The difficulty that I have had in this case ... is to consider whether I should wholly suspend sentences ... or ... require ... that you serve but a very short ... period of imprisonment ..."

For the applicant it is contended that the learned sentencing judge was wrong in failing to wholly suspend the sentences imposed.

The learned sentencing judge considered suspending the sentences but instead imposed appropriate sentences of imprisonment and ordered that he be eligible for parole after serving three months. Having regard to the matters to which we have already referred, it seems unlikely that serving three months in custody will achieve any more than would a sentence wholly suspended. Upon the facts of this case the applicant has spent about three weeks in custody under the sentence against which he seeks leave to appeal.

In the exceptional circumstances of this case a suspended sentence more accords with the spirit of ss. 9(2)(a)(i) and (ii) of the Penalties and Sentences Act than does one which results in the applicant being sentenced to a term of imprisonment (which must have been at the upper end of the range of sentences appropriate 25 years ago) with a recommendation of eligibility for parole after serving only three months.

The application for leave to appeal is granted. The appeal is allowed. In lieu the applicant is sentenced to imprisonment for two years on the first count, three years on the second count, one year six months on the third count and one year on the fourth count. Those sentences of imprisonment are suspended for a period of three years from the date of this order.

The applicant must not commit another offence punishable by imprisonment during that period of three years or he may again be dealt with under s.146 of the Penalties and Sentences Act 19921994, for the offences to which he had pleaded guilty.

Penalties and Sentences Act 1992

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