R v Pham [1996] QCA 3

Court of Appeal (Qld)|1996-02-06|Before: Before Fitzgerald P, Davies J, Mackenzie J

The applicant has applied for leave to appeal against a sentence imposed in the District Court at Brisbane on 30 October 1995. On that date, he was convicted after a trial of indecent dealing with a girl under the age of 12 years on 31 October 1994 and was sentenced to imprisonment for two years.

The applicant was born on 15 October 1970 and was aged 24 years when he committed the offence and 25 years when he was sentenced. He has no prior criminal history.

On the date of the offence, the applicant called the complainant into his fruit shop, gave her some chocolates and a drink and, when no-one else was in the shop, pushed her into the back section of the shop. A customer came in whom the applicant served before returning to the complainant in the rear of the shop. He kissed her on the lips and cheek, pulled her pants down, pulled his own jeans down to his ankles, showed her his penis, placed her hand on his penis, ejaculated, then hugged the complainant and told her that he loved her. After the incident, the complainant became very insecure and somewhat withdrawn.

Before this Court, reliance was placed upon the applicant's age and lack of criminal history, that he was in business in his own fruit shop with debts to banks, and that he lived with his brother and parents who somewhat relied on his income. The latter matters seem to us of no significance whatever. It was also said for the applicant that "... he was not in any special position of trust in relation to the complainant", and that the offence "... was a single isolated act, not involving any touching of the girl's private parts (although he pulled her pants down), and not accompanied by any substantial force or any threats or intimidation of any kind; the applicant indicated affection towards her". The submission made was that "... given these features, the sentence of two years without any order for suspension, is outside of proper range ...", and that the sentence imposed should have been suspended after three months.

One difficulty which these submissions confront is that a sentence in the order of that given was advocated by counsel who appeared for the applicant at his trial. Another difficulty is that the applicant exhibited no remorse. He falsely denied his guilt and advanced a spurious defence, necessitating evidence from the complainant who was cross-examined. The trial judge correctly described the applicant's behaviour as revolting. Nonetheless, it is necessary to ensure that the sentence imposed on the applicant does not exceed what is called for.

That is no easy task. As has been noted elsewhere, it is impossible to reconcile all the sentences imposed on sexual offenders against children, even those handed down in recent years. Instances can be found of lengthy terms of imprisonment while, at the other end of the spectrum, there are quite serious cases in which imprisonment has not been ordered or has been suspended. As was pointed out in Solway (C.A. No. 164 of 1995, unreported judgment delivered 22nd August 1995), offenders are often mature citizens who have otherwise led blameless lives whose disgraceful conduct is inexplicable. However, this Court has clearly indicated that, other than in exceptional circumstances, those who indecently assault or otherwise deal with children should be sent to jail. Imprisonment is plainly called for in this case.

Nonetheless, in setting the period of imprisonment which is appropriate, courts should not ignore sentencing trends for comparable offences, or even one group of cases where inconsistency is manifest in the overall pattern. That has been recognised in other areas where similar problems have arisen: see, for example, Sheppard (1994) 77 A.Crim.R. 139 and compare Conquest (C.A. No. 395 of 1995, unreported judgment delivered 19 December 1995). If there is to be an increase in the general level of sentencing for an offence, that should be achieved, so far as possible, without creating a legitimate sense of grievance on the part of a particular offender.

While the attitude of the courts towards sexual offenders against children is hardening, in our opinion, the point has not yet been reached at which a sentence of imprisonment for two years for a single offence of this nature by a comparatively young first offender can be assimilated into the overall sentencing pattern for such offences. In our opinion, a sentence of imprisonment for one year would have been more appropriate.

In the circumstances, we grant the application, allow the appeal, set aside the sentence imposed below and substitute a sentence of imprisonment for one year.

Application for leave to appeal against sentence granted.

Sentence imposed below set aside and a sentence of imprisonment for one year substituted.

CATCHWORDS: SENTENCE - sexual offence - whether sentence excessive in light of the fact that offence was an isolated incident committed by a comparatively young offender - applicant convicted of indecent dealing of a girl under the age of 12 years - applicant 24 years old, owned own business with debts to bank - applicant in no special position of trust in relation to the complainant and no force or threats of any kind were directed upon or towards the complainant.

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Judgment (12 paragraphs)

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