Court of Appeal (Qld)|2000-07-21|Before: McPherson, and Thomas JJA, Mullins J, Joint reasons for judgment of Thomas JA and Mullins J, separate reasons of, McPherson JA, concurring as to the orders made
McPherson, and Thomas JJA, Mullins J, Joint reasons for judgment of Thomas JA and Mullins J, separate reasons of
Catchwords
CRIMINAL
LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
- APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL
OR OTHER CROWN LAW
Source
Original judgment source is linked above.
Catchwords
CRIMINALLAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL- APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERALOR OTHER CROWN LAWOFFICER - APPLICATION TO INCREASE SENTENCE - OTHER OFFENCES - maintaining anunlawful sexual relationship - offendervoluntarily going to police - whethersentence of 12 months to be served by intensive correction order manifestlyinadequate - actualterm of imprisonment usually required - respondent alreadyserved three months of intensive correction orderR v Curtis [1999] QCA 197, CA No 42 of 1999, 28 May 1999, consideredR v D [1995] QCA 329[1996] 1 Qd R 363, consideredR v Fattoretto [1998] QCA 131, CA No 31 of 1998, 7 April 1998,consideredR v Greyex parte Attorney-General [1995] QCA 158, CA No 477 of 1994, 5May 1995, consideredR v Hackett [1993] QCA 240, CA No 144 of 1993, 23 June 1993,
considered
R v Kuhl [1993] QCA 38, CA No 369 of 1992, 5 February 1993,
considered
R v Lipinski (1994) 75 A Crim R 54, considered
R v Phuc Minh Pham [1996] QCA 3, CA No 435 of 1995, 6 February 1996,
considered
R v Solway
ex parte Attorney-General [1995] QCA 374, CA No 164 and 187
of 1995, 22 August 1995, considered
R v Wilson [1998] QCA 74, CA No 41 of 1998, 28 April 1998, considered
R v Young [1997] QCA 87, CA No 23 of 1997, 18 April 1997, considered
Judgment (22 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the appellant
[2]
[1] McPHERSON JA: In R v Phuc Minh Pham (CA No 435 of 1995, 6 February 1996), a court consisting of Fitzgerald P, Davies JA and Mackenzie J said that "other than in exceptional circumstances, those who indecently assault or otherwise deal with children should be sent to jail". Pham was a case of an isolated incident perpetrated by a shopkeeper on a girl less than 12 years of age who came to his shop. He was sentenced to imprisonment for two years, which on appeal was reduced to one year.
[3]
[2] Judged by what was said in that case, and by the sentence as reduced in this Court, it would have been very difficult to justify anything short of a prison sentence of some duration in the present case. The acts charged against the respondent persisted over a period of some five years; they were directed at his own granddaughter; and they took place in his home when the child was staying there. The circumstances that it was the respondent himself who volunteered that he had committed this misconduct and that his remorse is no doubt genuine, are redeeming features; but in the ordinary way one would expect a real prison term to have been imposed in a case like this.
[4]
[3] That having been said, this is a sentence appeal by the Attorney-General and, having regard to the principles governing such appeals, the extent to which the respondent has already carried out the terms of the original sentence, and the other reasons given by Thomas JA and Mullins J in this matter, I agree that the appeal should be dismissed.
[5]
[4] THOMAS JA AND MULLINS J: This is an Attorney-General's appeal against a sentence imposed for maintaining an unlawful sexual relationship with a child under 16 years with circumstances of aggravation, namely that the child was under 12 years and was the respondent's granddaughter. The sentence imposed was 12 months imprisonment to be served by intensive correction order.
[6]
[5] The relationship existed over a period of four and a half years during which the child (Amy) was aged between seven and 12 years and the respondent between 48 and 52 years. The offences occurred during regular visits by Amy to the respondent's house where she regularly spent weekends and other periods. The case is quite extraordinary in a number of respects including the fact that there was and still is no complainant. The respondent had for some time become disgusted with himself after such sexual incidents and had sworn to himself that he would not repeat his behaviour. However when the conduct continued he realised that he needed help. He told his brother then a church minister then a clinical psychologist. Finally he went to the police and gave them a full statement in relation to his activities. There is no doubt that he resolved to do whatever was necessary to ensure that he would do no further harm to his granddaughter and to prevent recurrence of such behaviour.
[7]
[6] In the event the prosecution is based entirely upon a detailed and apparently sincere statement of the respondent as to his own offending behaviour. No verification has been sought or obtained from Amy or her mother. Initially no victim impact statement was presented, and after an adjournment in which further information had been sought as to any treatment received by Amy, the only statement forthcoming was one from Amy's mother (the respondent's daughter) stating that Amy shows no signs of any behavioural problems and is functioning quite well. She added "the only time I have seen any distress has been when we have been excluded from any parties etc birthdays and Christmas because of the bond conditions". That is a reference to the bail condition imposed after the respondent confessed and was charged, preventing contact between Amy and her grandfather.
[8]
[7] The risks associated with a prosecution based upon a confession without independent investigation to verify it are twofold - the confessor may be confessing to too much or to too little. In the present case the prosecuting authorities seem to have been content to proceed without independent verification because of the apparent sincerity and responsibility of the respondent and the extent of detail contained in his admissions against interest. They were also motivated by the desire, shared by the respondent, to spare Amy entirely from the stress and re-living of experiences associated with such an investigation. From a social point of view this is commendable. From a legal point of view however it introduces a degree of uncertainty and concern. Having said this, the court must respond on the basis of the facts which both parties are prepared to accept as the basis for the sentence to be imposed for the crime the respondent has committed, but the uncertainty that underlies the exercise may justify some conservatism in the response of the courts.
[9]
[8] The molestation began during a visit by Amy, when having put her to bed the respondent returned when she was asleep, pulled her pants to one side and rubbed her genital region. This conduct occurred at first with a six weekly frequency and increased to a weekly event. Having obtained sexual arousal he would leave the room and masturbate to ejaculation. He mentioned that subsequently there was an occasion when he touched Amy on her genitals fairly briefly when she was playing in the lounge and other persons were in the vicinity. The child did not object or "go crook" at him. He later spoke to her about the incident, "You know what grandad did the other day? Grandad shouldn't be doing that. That's very naughty." He added "You can't tell anybody about this". She said that that was okay, that it was not a problem. He says that his conduct progressed further in that he would touch her in bed when she was awake and get into bed with her and get her to hold his penis. He always left before ejaculation occurred. By the time she was 11 years old he performed oral sex upon her "sticking my tongue, as far I suppose as I could" and on occasions he would rub his penis against her. Finally when she was 12 and was in the bathroom of his house he cupped her breasts with his hands and rubbed his penis against her. She was fully dressed when this occurred. She did not say anything.
[10]
[9] At this point he resolved to do whatever was necessary to stop himself from going further. He found it necessary to go to the others for advice, and he has addressed the problem it would seem, in as responsible a way as is possible.
[11]
[10] There is no doubt that genuine remorse exists in this case and that the respondent has himself done what he can to rehabilitate himself. This includes not only his confession but also his seeking of psychological treatment and his making available such treatment to other members of his family.
[12]
[11] The conduct in question was very serious and it went on for a period of four and a half years. This was not a case involving penetration or ejaculation in the child's presence and the nature of the offending itself was accurately described by the Crown prosecutor below as of a moderate level of seriousness. There had been no threats or aggression shown, although of course the conduct reveals a gross breach of trust.
[13]
[12] The effects on the child to date would seem to have been unusually moderate for offences of this kind. There may well be adverse effects in the long term, although the available evidence does not at this stage show any particularly adverse circumstances of this kind. Counsel for the Attorney-General submitted that it should be inferred that Amy has already been corrupted by the respondent's conduct and that his submission was strengthened by the absence of any complaint from her. That is a distinct possibility, but in the absence of any investigation into the family circumstances and in particular of the condition of the child we do not think that such a conclusion should or could be inferred beyond reasonable doubt. It follows that no inference of that kind should be held against the respondent.
[14]
[13] The report of the psychologist from whom the respondent sought advice, and on whose advice he went to the police, suggests that there is little threat of relapse. Before sentence the respondent had received a deal of treatment and counselling. The psychologist's opinion to this effect was based upon the voluntary confession of his behaviour without any apparent need to do so, the active pursuit of treatment and the supports and structures which had been put in place to minimise the possibility of future offending. However the psychologist also based his prognosis upon the fact that the respondent was a "situational" offender who had offended exclusively against one primary victim. On this criterion, counsel for the Attorney-General pointed out that the psychologist was not provided with the record of interview in which the respondent had volunteered that to some extent he had also molested the child's mother when she was a child. Counsel did not suggest that uncharged acts could be used as suggesting anything against the respondent (compare R v D[1995] QCA 329; [1996] 1 Qd R 363), but this circumstance does suggest that less weight should be given to the psychologist's opinion because of his ignorance of this circumstance. Even so the other factors that were relied on by the psychologist suggest that the prospect of rehabilitation is here much greater than in many other cases of offences of this kind. He has faced the problem and it has been exposed to his family. He has submitted to treatment and is willing to continue to do so.
[15]
[14] Counsel for the Attorney-General submitted that the respondent is guilty of sexualising an innocent child for the sole purpose of his own gratification, and that nothing short of an actual custodial sentence of some length could be considered as an adequate response by a court to conduct of this nature and duration. He referred in particular to four cases, three of which had been referred to in the court below. These were Fattoretto CA 31 of 1998, 7 April 1998; Curtis CA 42 of 1999, 28 May 1999; Young CA 23 of 1997, 18 April 1997; and Lipinski(1994) 75 A Crim R 54. Counsel for the respondent referred additionally to R v Grey; ex parte Attorney-General CA 477 of 1994, 5 May 1995; R v Solway; ex parte Attorney-General CA 164 and 187 of 1995, 22 August 1995; Wilson CA 41 of 1998, 28 April 1998 and Kuhl CA 369 of 1992, 5 February 1993. These reveal a variety of results in a variety of combinations of circumstances. Fattoretto, Curtis, Young and Wilson were all cases of maintaining a sexual relationship with a minor. Grey, Lipinski, Solway and Kuhl were cases of indecent dealing, the latter three cases involving multiple such dealings. It is fair to say that an actual custodial sentence is to be expected almost as a matter of course in such cases; but the possibility remains of exceptional instances where a non-custodial order, or one in which a sentence is entirely or substantially suspended may be made (Hackett CA No 144 of 1993, 23 June 1993 and Wilson above). In Wilson the offence was maintaining a sexual relationship with an 11 year old boy, which continued for several years. The conduct included oral sex and mutual masturbation. The offender had a good work history, but previous convictions of sexual offences. A special factor in that case would seem to have been the dreadful treatment meted out to him by another inmate when he was in prison on another matter, before he was dealt with for the offences in question. He very nearly died as a result and sustained permanent brain injury. A return to prison environment was regarded as something that would bear unduly harshly on him. This court reduced his sentence to one of four years and ordered that it be wholly suspended from the date of the appeal which it seems was four and a half months after sentence.
[16]
[15] The authorities demonstrate that in the absence of very special circumstances offences of the level of seriousness of the conduct over a duration such as that in the present case would normally expect to result in a prison sentence of three years or more, with a widely ranging degree of suspension or parole recommendation based upon antecedents and mitigating factors.
[17]
[16] The circumstance of an offender voluntarily terminating his conduct and reporting his own conduct to the authorities is an unusual and very important matter. Such conduct has attracted different responses from courts according to the circumstances of the case. Fattoretto was a case in which the offender implicated himself voluntarily, and his sentence, after reduction on appeal, was five years with a recommendation for parole after 18 months. The circumstances of the offences were considerably more serious than in the present matter as there were four separate sexual relationships with different girls. On the other hand, in Lipinski the offender's remorse and voluntary disclosure of very old offences was regarded as an exceptional circumstance, and in the result his sentence was one of two years fully suspended. He was charged with four specimen counts of indecent dealing on "many, many occasions" with three children, two girls and one boy. His offences included putting his penis in the mouth of one victim, and inserting his fingers in the vagina of another. The fact that it was a confession of old offences does not in our view make his confession any more meritorious than the present confession which was immediately after a decision to terminate such conduct. However it is relevant that the maximum sentences for Lipinski's offences at the time when they were committed were two years, five years and seven years, whereas the maximum sentence on the present charge was life imprisonment.
[18]
[17] General deterrence is always a matter of importance in these cases. The learned sentencing judge acknowledged this and rightly observed that there was less need to frame a sentence to effect personal deterrence in the present matter than is normally the case.
[19]
[18] It was not submitted on this appeal that the learned sentencing judge revealed any error of principle, other than that he failed to give adequate weight to general deterrence. It is clear from his Honour's sentencing remarks that he was conscious of that need. His Honour's reasons were carefully expressed, and the real issue is whether the effect of the authorities is to have placed it beyond his Honour's sentencing discretion to impose an intensive correction order.
[20]
[19] As a consequence of the order below the respondent has undergone the burden of an intensive correction order for a period of slightly more than three months before the hearing of this appeal. He has done so in a satisfactory manner and inter alia has performed 53 hours of community service. He has also undergone further clinical assessment and treatment including counselling and work with an accountability group.
[21]
[20] A prison term with a generous parole recommendation or a suspension after a relatively short period or a term of prison under s 92(1)(b) of the Penalties and Sentences Act followed by a period of probation would certainly have been appropriate sentences. The question is whether it was out of the question for his Honour to do what he did. Having regard to his performance to date of the intensive correction order and the nature of an Attorney-General's appeal which inevitably requires the imposition of a sentence, as it were, in a "second round" of sentencing instead of first time, we think it fair to describe this particular appeal as a finely balanced case. We have little doubt that the sentence that should have been imposed at first instance, having regard to the seriousness and duration of the offending, was one that included an actual custodial component, even if it was relatively short in view of the special circumstances that have been mentioned. We find it difficult at this stage to frame a sentence which further reduces a low sentence of that kind so as to take into account the intensive correction which has ensued over the past three months. Incarceration, on the evidence, would place at risk the respondent's future earning capacity, and would be of no benefit to him or to the members of his family, including Amy and her mother. Nor do we think that, on balance, it would serve the interest of the community. The point at issue is whether consistency in sentencing and the need to maintain adequate deterrence requires this Court to make an appropriate example of the respondent, or more specifically, to ensure that his case is not taken as a precedent for a de facto non-custodial order when conduct so protracted as this has occurred. Adversion to the above reasons should ensure that this does not occur.
[22]
[21] With some hesitation we consider that despite the seriousness of the conduct involved, the circumstances to which we have referred make this case sufficiently special to justify non-intervention by this court on an Attorney-General's appeal. We would therefore refuse the appeal.