R v Schirmer [1995] QCA 242

Court of Appeal (Qld)|1995-04-26|Before: Ambrose J, Pincus JA, Jersey J

The applicant did not give evidence or call evidence. The case was a very short one; it started just before 3 p.m. one afternoon. The Crown Prosecutor opened the Crown case. The opening and the evidence had finished by about 4 p.m. and the addresses by both counsel finished in 50 minutes. The summing-up commenced early next morning and took about half an hour. The jury took all day to reach a verdict.

The Crown's submissions were very short. It was submitted to the trial Judge that no doubt he would have in his mind all the facts so shortly placed before him.

It was contended that the applicant was obviously a sick individual who seemed to have some sort of a problem when it came to young girls. It was contended that a term of imprisonment was called for. This was based upon the fact that the applicant had previously been convicted of an indecent dealing with a child who was under the age of 12 years. This conviction took place on 6 February 1990 when an order was made for probation for 2 years and a community service order for 240 hours.

It was asserted by counsel for the applicant, and the sentence would proceed on that assertion because it was not contradicted by evidence, that this previous offence also involved the applicant touching a little girl on the outside of her vagina, although he had on that occasion also placed his hand inside her panties.

There is nothing in the record or in submissions made on sentence to indicate whether the applicant received any counselling or therapy pursuant to the probation order for any sickness or other problem that he had with respect to young girls, to which the Crown Prosecutor referred.

From submissions made on behalf of the applicant, it emerged that he was well-qualified, he had obtained a Bachelor of Engineering degree with honours, had worked at various places, he had commenced his own business, which failed after the commission of the offence. It was contended, in my view correctly, that the acts constituting the offences were to be found at the lower end of the range of seriousness, touching her only on the outside of the vagina. There was no gross behaviour sometimes accompanying such offences relating to perhaps oral sex or ejaculation or rubbing parts of the applicant against body parts of the complainant.

It was pointed out that the events were isolated and unpremeditated and they occurred within a relatively short period of time. There was no evidence of any threats of violence, no evidence of harm to the child, and the applicant was not in any position of trust.

The problem was, it was conceded, that the applicant had been previously convicted of a similar offence upon a child of a similar age and it was conceded by counsel for the applicant that it was a case in which he could not contend that a custodial sentence was not called for.

A number of authorities were referred to. Counsel for the applicant in this case, and also counsel for the Crown, both referred to cases of Herbert, which is CA number 189 of 1990, where an offender there was sentenced to three years imprisonment on each of two counts of indecent dealing. The offences were committed on two young girls, one of four years of age and the other 18 months of age.

The offender at the time was in a position of trust. The little girls, who were both in nappies apparently, had been left by their parents under his care. He had obviously been involved in a sexual encounter with their bodies. He was found to be in a compromising position with his legs entwined with one of the children when the parents returned home without warning. He had in fact ejaculated onto one of the children. The other child had redness around the vagina.

In that case there was an application for leave to appeal against the severity of the sentence but having regard to the serious nature of the case, leave to appeal was refused.

The second case to which both counsel upon this application have referred was R v B, CA 291 of 1991. That was a case where there were, in effect, five counts of indecent dealing considered. Two of them involved touching with fingers, the other three involved touching the child in or about the vaginal area with the applicant's penis. The child was 12 years old when the events took place.

With respect to the touching with the hand, a penalty of 12 months on each charge had been imposed and with respect to the touching with the penis about the private parts of the child, a penalty of two and a half years on each of the counts was imposed. In the course of the reasons for dismissing the application it was observed that it was conceded that sentences of up to two and a half years were within the range for offences of indecency of the kind then before the Court and it seems clear that the reference related to offences of indecency involving touching the child in the vaginal area with the penis of the applicant.

There was a disparity in age which was an aggravating factor. More importantly, the applicant in that case had previous convictions for serious offences of a sexual kind involving sodomy, unlawful carnal knowledge, indecent dealing with a girl under 15, indecent dealing of another girl under 16.

It was said that in this case, although the offences in respect of which the application for leave was considered were of less serious nature than the other more serious offences in respect of which a cumulative sentence of two years had been imposed, nevertheless, because of the repetition, it was observed that the appellant, although older, was evidently no wiser and that therefore the imposition of the higher penalty of two and a half years on each of the more serious of the indecent dealing charges was justified, even though the offences in respect of which it was imposed were of a less serious nature than the previous offences in respect of which a penalty of only two years had been imposed.

There are other cases to which reference was made, Vidot, CA 262 of 1992, McCormack, CA 161 of 1993, and Hauptmann, CA 196 of 1994. In those matters one of the less serious of the offences involved simply touching a girl on the outside of her pants. The other one, which seemed to me to be a more serious one than the present one, involved the applicant actually placing his penis on the vagina of the girl. I think it is unnecessary in the light of what both counsel contended in this case to analyse the facts in those cases because it is sufficient, I think, to analyse the facts in Herbert and Bourne, with respect to which both counsel sought to rely to support their respective positions.

In my view, in the light of the cases to which I have referred, the sentence of three years imposed upon the applicant in this case is manifestly excessive. I would allow the application for leave to appeal, I would allow the appeal and I would set aside the sentence imposed. It will be necessary therefore to consider the matters afresh to decide what would be the appropriate sentence to impose now. In line with the cases to which I have referred, in my view a sentence of two years imprisonment would be an appropriate sentence.

For the applicant it was contended that a sentence of 18 months ought to be imposed. Unfortunately, in this case there is no evidence as to what counselling or therapy, if any, the applicant received while he was on probation. That period of probation ended on 6 February 1992, about seven months prior to the commission of these offences.

In my view it would have almost certainly have been of assistance to the sentencing Judge and, as far as I am concerned, it would be of assistance to me in looking at this matter if there were some information available as to what conditions had been imposed with respect to any psychological, psychiatric or other problem that he may have had that caused him to commit the first offence in respect of which a probation order was made.

In any event, no pre-sentence report was sought in this case and no reference was made by either counsel to the previous probation order or the performance of the applicant under it. In this case I would impose a sentence of two years imprisonment and I would recommend that the custodial authorities make available to the applicant such counselling and therapy as may be available in the prison system for persons with any treatable medical, psychological or psychiatric condition from which the applicant may suffer which may have been a factor in his commission of the offences the subject of this application, or indeed which may have been a factor in his commission of the offence in respect of which he was granted probation, to which I have referred.

I would not make any recommendation with respect to eligibility for parole. I would further recommend that when considering any application that the applicant may make when he does become eligible to make it, the parole board have regard to any efforts or lack of efforts made by the applicant to avail himself of such counselling and therapy as may be available to him, and should it be decided to grant him parole when he does become eligible, the board ought consider whether parole should be granted on condition that the applicant, while on parole, undertake such counselling or therapy or treatment or continue with that treatment if it has already been commenced in prison, which might be reasonably required to assist him in overcoming or controlling any medical, psychological or psychiatric condition which may have contributed to the commission of the offences to which this application relates.

I would therefore shortly grant the application for leave to appeal. I would allow the appeal, set aside the sentence. I would impose a sentence of two years imprisonment and I would make the recommendations to the parole board to which I have referred.

PINCUS JA: The order of the Court will be as follows. Application granted, appeal allowed, sentence imposed below set aside. In lieu the applicant is sentenced to a term of two years imprisonment. It is recommended that the applicant, while undergoing the terms of imprisonment, receive such treatment by way of counselling or otherwise as is available for whatever condition has induced the commission of his offences.

It is further recommended that when consideration is being given to an application for parole, the authorities have regard to efforts made by the applicant to receive and respond to treatment and that the authorities consider imposing, as a condition of parole, that the applicant receive further treatment.

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