Court of Appeal (Qld)|1998-12-03|Before: Jersey CJ, Pherson JA, Chesterman J

R v. L; ex parte Attorney-General [1998] QCA 468 (3 December 1998)

THE CHIEF JUSTICE: The Honourable the Attorney-General appeals against sentences imposed by a learned District Court Judge in relation to two counts of indecent dealing with a child under the age of 12 years. The first offence occurred in June to July 1996 and the second in January 1997.

The respondent was a friend of the complainant boy's family. At the time of the offences the respondent was 38 years old and the complainant was 10 years old.

I take the following account of the circumstances substantially from the respondent's counsel's written outline,

"The respondent was the station master at a central Queensland town. The complainant boy was the youngest of four children and his parents managed the local swimming pool. The respondent got to know the family and would visit their home and chat to the boy's mother. Sometimes when the mother had to go back to the pool to work the respondent would stay at the house, wait for the children to come home from work and sometimes cook a meal for the children and help them with their homework. In the June school holidays in 1996 the respondent went on holidays with the family to a large tin hut at a place called Kangaroo Creek new Bowen. The boy's grandfather was also there and other relatives of the family would occasionally visit.

One night the mattress on the complainant's bed got wet during the night. The respondent then took him into his own bed where he placed the child on to his, the respondent's stomach. They were both wearing shorts. In that position the respondent put his hand down the front of the boy's shorts and rubbed the boy's penis on the outside of his underpants. The complainant said that his, that is, the boy's penis, 'stood up'. After a time the respondent withdrew his hand and after a short time removed the boy from on top of him and placed him on the bed next to him.

The second offence occurred a couple of months later. At the time the complainant was staying on average every second weekend over the Saturday night, apparently with his brother as well. On one of those weekends the respondent took the complainant and his brother to the Fairbairn dam to go fishing from the respondent's boat. The respondent took the complainant out onto the dam in the boat to fish leaving the brother on shore and was touching the boy's penis on the outside of his pants, causing it to become erect."

The learned sentencing Judge referred to the respondent's pleas of guilty, remorse and tender of an apology to the respondent's previously unblemished record; his substantial past voluntary community work; other personal difficulty associated with the breakdown of his marriage and his isolation consequent upon these charges within the community in which he was previously substantially and actively involved.

On the first count the Judge sentenced the respondent to 15 months imprisonment wholly suspended for four years. On the second count he ordered three years' probation. The Attorney appeals on the ground, effectively, that the sentences were manifestly inadequate. See Melano [1994] QCA 523; [1995] 2 Qd R 186. The ground was particularised in this way,

"It fails to reflect adequately the gravity of the offence generally and in this case in particular. It failed to take sufficiently into account the effect on the victim. It failed to take sufficiently into account the aspect of general deterrence. The sentencing Judge gave too much weight to factors going to mitigation and the concurrent imposition of both 15 months imprisonment and probation albeit for different offences, was contrary to the spirit and intention of section 92 subsection 1 of the Penalties and Sentences Act."

As to the last matter, while the sentence of imprisonment remains suspended the respondent was able to comply with the requirements of the concurrently operating probation order so that the difficulty identified in the R v. Hughes, Court of Appeal 43 of 1997, would not necessarily arise. But because of the view I take of the case overall I need not express any concluded view on that arguable wrinkle.

An aspect which did not feature with any prominence in His Honour's sentencing remarks was the effect on the complainant. His mother's victim impact statement to which the Judge referred virtually only in passing, particularised that effect in the following way - and I take this from the summary in the Crown outline.

"The boy has been too scared to sleep in his own bed since about November, December 1996. The boy is scared that the respondent will 'get him'. The boy wakes at night crying following dreams about the respondent. The boy has refused to go on school excursions fearing the respondent will get him. The boy has had to undergo counselling weekly from June 1997 from about June 1998 and fortnightly thereafter. It is expected he will need counselling up to about March to September 1999."

I mention also that there was evidence of a threat of retaliation if the complainant revealed the offences.

The Judge rightly took into account the effect of these offences within the respondent's local community which has reacted with an unsurprising expression of distaste towards the respondent. This has led to the respondent's withdrawing from the community-based activities which previously lent considerable fulfilment to his life. Undoubtedly, he has thereby suffered.

A question is whether that circumstance taken with others favourable to the respondent, his lack of previous history and pleas of guilty especially, warranted his not having to serve a term of actual imprisonment. I do not consider that they did.

In my view, the gravity of the offences committed by this 38- year-old man with deliberation on a 10-year-old boy, a child of a family he had befriended; a child over whom he had exercised some care, taken with the apparent residual effect of the offences on the boy and the important consideration of deterrence, warranted the respondent's having to serve a term of imprisonment notwithstanding the other features which operate in his favour.

We were referred to many cases. I found R v. Wain, Court of Appeal 178 of 1998 in which judgment was given on 4 August this year, to be the most helpful. A 42-year-old man indecently dealt, on one occasion, with a high school boy, a boy then under 17 years of age. It was a premeditated offence.

The Court of Appeal endorsed the nine month term of imprisonment imposed at the stage of sentencing as ordinarily appropriate to such circumstances but then went on to reduce that sentence because of other peculiar aspects of Wain which were not present here. That nine month sentence was imposed at a time when the maximum penalty for this offence was five years imprisonment. At the time of these offences the maximum penalty had been increased to 10 years imprisonment.

I appreciate that a sentence of suspended imprisonment carries its own burdens and should be regarded as a term of imprisonment; but the circumstances of this case, to my mind, did warrant the serving of an actual term, in view of the gravity of the offences, bearing in mind the age disparity and the nature of the conduct, especially the effect on the victim, and the overriding need for deterrence. In short, I consider the penalties imposed to have been manifestly inadequate.

The Court has, in previous cases, mentioned from time to time the relevance of community attitudes while emphasising that they must not control the Court's approach. The Court must be careful in its approach to this. First, can a general community expectation or attitude be reliably discerned? Second, is it a persisting view or one borne of outrage of the moment which may temper with more substantial and mature consideration?

Having said that, I acknowledge, for my own part, that there is a generally felt and measured community expectation that mature people who, in circumstances like these, commit sexual offences against very young children, should be dealt with seriously.

Of course, slighter offending falls into a separate category, more casual isolated touching, for example. But with this sort of conduct, deliberative, occurring more than once, arousing the child sexually for the offender's own gratification, leaving a victim emotionally affected in a not insubstantial way, betraying the trust of the child and his family, with this substantial discrepancy in ages and particularly the complainant's tender years, I am confident that reasonably minded members of the community would expect the offender to have to serve a term of imprisonment notwithstanding the other features which operate in mitigation.

I would allow the appeal, set aside the sentences imposed below and on each count order that the respondent be imprisoned for 12 months, that term in each case to be suspended after the serving of three months imprisonment, the operational period to be two years dating from today.

R v. L; ex parte Attorney-General [1998] QCA 468 (3 December 1998)

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R v. L; ex parte Attorney-General [1998] QCA 468 (3 December 1998)