3/06/1998

[1998] QCA 206

[1998] QCA 206

COURT OF APPEAL
de JERSEY CJ
DEMACK J

CHESTERMAN J

CA No 123 of 1998
THE QUEEN
v.

T Applicant

BRISBANE
..DATE 23/06/98
230698 D.1 T2/RB28 M/T COA149/98
THE CHIEF JUSTICE: I will invite Mr Justice Chesterman to
deliver the first judgment in this matter.

CHESTERMAN J: On 22 April 1998 the applicant pleaded guilty to three counts of indecent treatment of a child under the age of twelve, each with a circumstance of aggravation and two counts of permitting himself to be indecently dealt with by a child under the age of twelve.

The offences occurred between 31 December 1993 and 2 October 1996. The child involved was the applicant's step-daughter. She was aged between five and seven when the offences were committed. The applicant is now thirty-two years of age and was between twenty-seven and twenty-nine when he committed the offences.

It is, I think, unnecessary to describe the circumstances of the offences. It is enough to say that none of them involved any violence or penetration, digital or penile. It is the case, though, that the applicant warned the child not to reveal what had happened to her mother. There is, in such circumstances, at least an implicit threat. The child was aware of what was happening during the commission of the offences and was frightened. The offence, the subject of the fifth count, was the most serious, involving what was described as simulated intercourse.

The learned District Court judge, before whom the applicant pleaded guilty, sentenced him to twelve months imprisonment in respect of the first to fourth counts and eighteen months 230698 D.1 T2/RB28 M/T COA149/98

imprisonment in respect of the fifth count. Both terms were
ordered to be suspended after a period of three months
incarceration. The operational period of the balance of the
sentence was three years.

The applicant seeks leave to appeal against the sentences imposed on the ground that they are manifestly excessive. The submission advanced is that the case is a truly exceptional one in which it was inappropriate to impose any term of actual imprisonment and that the imposition of a period of custody makes the sentence manifestly excessive.

The point relied upon primarily is that the offences came to
light only when the applicant himself confessed to his wife,
the child's mother. The confession was first made about
twelve months after the last of the offences was committed.
In that period the applicant had realised that his conduct was
reprehensible and stopped it. He became remorseful and was
concerned that what he had done might have lasting deleterious
consequences for his step-daughter.

He and his wife spoke to a counsellor employed by Lifeline. He repeated the confession and was assisted to contact officers of the Department of Families, Youth and Community Care and the police. He co-operated fully with the authorities and made full admissions. He agreed to the presentation of an ex officio indictment to spare his step- daughter the embarrassment and stress of giving evidence. 230698 D.1 T2/RB28 M/T COA149/98

The offences themselves are not the most serious example of their type. The applicant has no relevant criminal history. Counsel for the applicant has referred us to the decision of this Court in L [1994] QCA 380 to support the submission that a term of actual imprisonment was not appropriate in this case.

In my view no such principle can be obtained from L. Every
case, of course, turns on its own facts. What the Court did
say in L that is relevant as a matter of principle is this:

"Undoubtedly, in most cases where adults indecently deal with

immature children in ways similar to the ways in which
the applicant dealt with the children in this case, a
custodial sentence will be imposed. Very special
circumstances however may justify a non-custodial penalty
or a suspended sentence."

The Court went on to say that having regard to the matters pertinent to L, "it seems unlikely that serving three months in custody will achieve any more than would a sentence wholly suspended".

The facts in L have many similarities to the facts in this application. Importantly in this case the offences would not have come to light but for the applicant's confession. In the reported case, however, the period of time between the commission of the offences and the confession was very long -

about 23 years. The applicant, in fact, had to importune the

authorities to investigate his conduct.
230698 D.1 T2/RB28 M/T COA149/98
The court in L did not lay down any principle that exceptional
circumstances of the kind that are found here will make it
inappropriate to impose a custodial sentence. The court said
only that very special circumstances may justify a suspended
sentence.

The applicant urges that to send him to gaol will operate as a disincentive to those offenders who, like him, are driven by remorse or self-disgust to confess. If gaol follows detection brought about by confession as well as detection resulting from a complaint, there will be, it is argued, no proper recognition for remorse and consequent confession.

I do not think this is right. It appears that the sentencing judge would have required the applicant to serve the whole term of eighteen months but for the fact that he brought the offences to the attention of the authorities and that he may have escaped detection but for his doing so.

This is a very sad case. Apart from these offences, the applicant appears to be of good character. He is married now with children of his own. His wife and step-daughter wish him to remain part of the family unit and do not desire his imprisonment. He is gainfully employed. He had a difficult childhood of his own with which he has struggled to come to grips.

This court, though, can interfere only if the sentence is
manifestly excessive. As Macrossan CJ said in R v. Gray
ex parte Attorney General of Queensland:
230698 D.1 T2/RB28 M/T COA149/98
"It is not sufficient for this purpose that some other

sentence would have been appropriate, or even more
appropriate than that which was imposed. Having regard
to the wide discretion open to a sentencing judge there
is open to him a range of appropriate sentences. For the
appeal to succeed there must, in the sentence imposed, be
an error discernible or demonstrated by manifest
inadequacy or an inconsistency."

In my view this court is not justified in interfering with the sentence imposed. A sentencing judge may well have thought that the circumstances were so exceptional as not to warrant a term of actual custody. But it is only if the imposition of such a term is wholly disproportionate that this court can interfere. I do not think it can be said that a term of three months incarceration is outside the permissible range of penalties. The offence is prevalent and the law rightly regards it as serious.

I would refuse the application.

THE CHIEF JUSTICE: I agree.

DEMACK J: I agree.

THE CHIEF JUSTICE: The application is refused. I order that a warrant issue for the apprehension of the applicant.

-----