R v Pinder; ex parte Attorney-General of Queensland [1992] QCA 426

Court of Appeal (Qld)|1992-12-04|Before: McPherson J, Williams J, Derrington J

This is an appeal against sentence by the Honourable the Attorney-General. The respondent pleaded guilty to and was convicted of 14 counts of indecently dealing with a 13 year old boy between 9 June 1991 and November 1991, including mutual acts of fellatio. He was put on probation for three years on condition that he perform 200 hours of unpaid community service, which he has already performed.

At the time of the offences he was about 29 years of age and had kept reasonably in employment, and he had no criminal history whatever.

He was a Scout Leader and was the executive producer of the Gang Show through which he came into contact with the boy. The latter was also a scout and wished to be included in the Gang Show, which gave the respondent added influence over him beyond his rank as a Scout Leader. The first seduction by the respondent occurred in this context.

The prosecution conceded that the boy was compliant in the offences which followed, but this is of little significance because the respondent had the advantages of his position of authority and the boy, once corrupted, was almost committed to compliance. It does not appear that he entered freely into the relationship or that he was ever the moving force in any of the offences.

It was acknowledged by the prosecution at the sentence hearing (based on information supplied by the boy's mother) that although the boy underwent some psychiatric counselling there was no long-lasting psychological impairment and that he has not been subjected to any long-term effects. That, given its basis, is not at all helpful to the court.

One unfortunate feature of this case is that two of the offences occurred at the complainant's own home. The first of these occurred when the respondent was visiting it in the absence of the complainant's parents; and the second occurred one night when the respondent secretly came to the complainant's house and tapped on his window for admission.

A psychological report on the respondent was tendered, but it was of little assistance. It ventured the opinion that the respondent "currently offers no threat to the community", though it does not say for what period that view is current. It reveals that he complains of having been sexually abused by a scout master in his own youth, and while this may attract some sympathy, it also should have reminded him of the damage which he himself was inflicting upon the boy.

The learned sentencing judge was impressed by the material in mitigation of punishment which was placed before him and the support for the respondent which was shown by references tendered and the presence of a number of friends who attended at the sentence. He took the view that rehabilitation of the offender was of more importance than the deterrent aspect of the sentence, and this led him to refrain from imposing a custodial sentence.

It is true that the respondent's personal history as a law-abiding man who keeps in employment and who has reasonable prospects of rehabilitation should be accorded full recognition. However, this is a case where there must also be a realistic acknowledgment of the need for deterrence in matters as serious as this. The potential damage to young boys by such experiences is very serious and the occasions when pressures to comply can be imposed upon vulnerable victims are numerous. In these circumstances, it cannot be said that rehabilitation outweighs the need for deterrence.

Taking into account the corruption of the complainant; the disparity of ages between him and the respondent; the position of trust and authority of the respondent; his taking advantage of the temptation to the boy of inclusion in the Gang Show; and the persistence in the offences over a period of time, two occasions having been in the boy's own home, a custodial sentence was called for.

In these circumstances the sentence cannot stand and a sentence of imprisonment for two years should be imposed. However, in order to afford recognition to those matters favouring the respondent, including his performance of community service pursuant to the sentence below, it should be recommended that he be considered for parole after six months from the date of this order on appeal.

The sentence below is set aside and the said sentence with recommendation is substituted therefor.

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