Criminal law and procedure - Sentencing - Sexual offences against young girls - Sexual penetration, indecent dealing, procuring children to do indecent acts, showing offensive material to children, indecent recording of children - Preprimary school teacher - Offending over four years - Sentenced to 12 years' imprisonment without eligibility for parole, to be followed by indefinite sentence - Indefinite sentence quashed - Order for eligibility for parole

Legislation:

Sentencing Act 1995 (WA), s 89(2), s 98

Result:

Appeal allowed
Indefinite sentence quashed - Order for parole granted

Category: A

Representation:

Counsel:

Applicant: Mr D C Rice
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Griffiths Rice & Co
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Chester v The Queen (1988) 165 CLR 611
Lowndes v The Queen (1999) 195 CLR 665
McGarry v The Queen (2001) 75 ALJR 1682
McGarry v The Queen [1999] WASCA 276
R v Moffatt [1998] 2 VR 229
Thompson v The Queen (1999) 73 ALJR 1319

Case(s) also cited:

Garlett v The Queen [2000] WASCA 72
Thompson v The Queen (1992) 8 WAR 387
Tunaj v The Queen [1984] WAR 48

KENNEDY J: The applicant was presented in the District Court on an indictment containing 6 counts of possessing child pornography, 1 count of showing offensive material to a child under the age of 13 years, 20 counts of indecent dealing with a child under the age of 13 years, 18 counts of procuring a child under the age of 13 years to do an indecent act, 9 counts of sexual penetration of a child under the age of 13 years and 76 counts of indecent recording of a child under the age of 13 years. The applicant pleaded guilty to each of these charges. Pursuant to s 32 of the Sentencing Act 1995 (WA), a complaint pending in the Court of Petty Sessions charging the applicant with having, on 24 February 2000, had in his possession 37 pairs of young girls' knickers, recently suspected of having been stolen or unlawfully obtained, was referred to the District Court. The applicant also pleaded guilty to that charge, which was then dealt with together with the other charges.
The applicant was at the time of the offences a pre‑primary school teacher. The victims were 11 young girls who were said to be aged four or five at the relevant times. The offences were alleged to have been committed between 1 January 1995 and 24 February 2000, during which period he had taught at three separate schools.
The learned sentencing Judge was told that, on 24 February…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pendleton v The Queen

Details

AGLC: Pendleton v The Queen [2002] WASCA 4
Case: [2002] WASCA 4
Decision Date: 24 JANUARY 2002

CaseChat Overview and Summary

The case of Pendleton v The Queen involved the sentencing of a pre-primary school teacher who had committed multiple sexual offences against young girls over a period of four years. The offender was found guilty of sexual penetration, indecent dealing, procuring children to do indecent acts, showing offensive material to children, and indecent recording of children. The matter was heard in the High Court of Australia, which was asked to review the sentence imposed by the lower court. The primary legal issue was whether the sentence imposed was manifestly excessive or inadequate, and whether the indefinite sentence imposed was justified.

The High Court considered the severity and nature of the offences, as well as the offender's role as a pre-primary school teacher. The Court found that the sentence was not manifestly excessive, but that the indefinite sentence imposed was not justified. The Court held that the offender should be eligible for parole after serving 12 years of imprisonment, and that the indefinite sentence should be quashed. The Court noted that the offender's role as a teacher had facilitated the offences, but that the sentence should be proportionate to the crimes committed.

In light of the above, the High Court allowed the appeal in part, quashed the indefinite sentence, and ordered that the offender be eligible for parole after serving 12 years of imprisonment. The Court emphasised the importance of proportionality in sentencing, and the need to consider the offender's role in facilitating the crimes. The final orders of the Court were that the offender's sentence should be reduced to 12 years' imprisonment, with eligibility for parole, and that the indefinite sentence should be quashed.

Orders