R v B

[1995] QCA 586

[1995] QCA 586

COURT OF APPEAL

McPHERSON JA
DOWSETT J
LEE J

CA No 289 of 1995

THE QUEEN

v

B  Applicant

BRISBANE

DATE 23/10/95

JUDGMENT

McPHERSON JA:  The applicant pleaded guilty in the District Court at Cairns to one count of indecently dealing with a girl under the age of 12 years.

He was sentenced to imprisonment for three years, and this is now an application for leave to appeal against that sentence.  On his behalf, Mr Collins has specifically relied on the failure to recommend any period of parole.

The circumstances are that the complainant was a girl aged 10.  The applicant had been in what is described as a relationship for a period of five years with the mother of the complainant by whom two other children had been born.  The complainant therefore may loosely be described as a stepdaughter of the applicant, although certainly at the time the offence occurred the relationship had come to an end.

The applicant was looking after the complainant and the other children in his own home overnight as a kind of baby-sitting assistant.  Along with the complainant herself there was staying with him that night another girl, L, who was evidently a friend of the complainant.

The applicant had some friends in to his house that night and they were drinking alcohol, which seems to have been the cause of the behaviour which followed on his part later in the night.  After those friends had gone, the applicant and some of the children were watching television until a late hour.  When the complainant wanted to go to bed, the applicant asked her to stay back after the others.  She said she did not want to.  She went off to the bedroom where all the children were sleeping, whereupon the applicant followed her and asked her to come to his bedroom.  She said she did not want to do so.

L got scared and went and telephoned her mother who came around to the house and took her daughter away.  L's mother attempted to communicate with the complainant's mother but was not able to do so.  It seems that, in the end, the police were called but the matter was not reported to them, or they did not reach the home, until a couple of hours had gone by.  When they came to the applicant's house they saw him asleep on a bed in the main bedroom with the child's underpants beside him.

What had happened, according to the complainant, was that before L had been taken home, the applicant had come to the bedroom, saying to her, that is, the complainant, "I want to get inside your pants."  He was pulling at her legs and hurting them.  She held onto the bed as he was pulling at her legs in an attempt to prevent him from doing so.  He, nevertheless, using his strength, pulled her away and into his room where he said he wanted "to get inside her pants".

In his bedroom, he told her if she would not take her underpants off, he would hold her down.  By that time, he was not wearing any clothes at all.  When L's mother came, the complainant locked herself in the toilet, whereupon the applicant banged on the door telling her to come out, which she did.  When she opened the door, she saw he did not have any underpants on.

She got back into her bed and the applicant tried to get her to come into his and she again said, "No."  Eventually, he dragged or carried her into his bedroom.  There he told her he would give her to the count of five to get her underpants off, to which again she said, "No."  He took the pants off.  They were ripped in the course of his doing so.  He then tried to stick his finger in her vagina but she had her hand there.  His finger squeezed through her hand but it did not get inside, although it touched her vagina, and his fingers played there for a while.

The result was, although he touched her on the vagina and was pushing hard to get it in and it was hurting, he does not seem to have succeeded in inserting his finger in that place.  While this was going on, he was licking her face and, at some stage, was trying to put his finger up her anus.  She told him she wanted to go to the toilet and asked for her pants back and he made some abusive comment to her about that; but eventually he gave her her shorts and she went to the toilet and then to bed.

The police noticed that the applicant was inebriated when they arrived and, later when he was interviewed, he said he could not remember what had happened.  He nevertheless did not contest the allegations made against him and pleaded guilty at what appears to have been the first reasonable opportunity.

His personal circumstances are that at the time of the sentence he was some 33 years of age.  He had no previous convictions, apart from one instance in which he forfeited bail for disorderly conduct some years before, and he appears to have had a good work record.  He is a sign writer by occupation and his counsel, in the course of submissions at the hearing, claimed that the applicant would have no difficulty in obtaining employment.

The Judge took a serious view of the offence in question.  He noticed that the applicant was physically and emotionally superior to the little girl and said that the offence deserved severe punishment.  He also remarked that, after a trial, an offence of this kind would have warranted a penalty of four to five years imprisonment; but took account of the plea of guilty and what appears to have been genuine remorse on the part of the applicant by reducing the head sentence to three years.

One could not disagree with some of what the Judge said but, for my part, I find it difficult to believe that the offence warranted a penalty of four to five years imprisonment even if it had gone to trial rather than being the subject of a plea.  The case is one where an attempt was made to interfere with the girl sexually but, largely through her determination and ability to resist, she succeeded in preventing an offence which might well have been more serious in the sexual department than that which, in fact, occurred.

The problem, so far as I am concerned, is to ensure that a degree of relativity is maintained between a sentence for an offence of this kind and sentences for other offences of sexual and indecent dealings with girls and, indeed, small children which, to my mind, are more serious and yet attract a penalty of about three years imprisonment.

The cause for complaint in the present case is, as the Judge noticed, that the applicant took advantage of a position of trust in which he found himself placed towards this young complainant and, in particular, his use of force and his persistence in attempting to get his own way with her even when, as one would have thought, he would have been sobered and deterred by the intervention of L's mother at the time she came.

Nevertheless, when all these matters are considered, I, for my part, am inclined to the view that the applicant was dealt with a little harshly in this instance.  In view of the fact that it is his first conviction of this kind or, indeed, of any kind and, having regard to his evidently useful work record, the case is one in which a recommendation for parole might properly have been considered and ought now to be considered by this Court.

The parole expectation that would arise on the sentence of three years, such as that imposed here, would be that the applicant would first be considered for parole at a point halfway through; that is, after he had served 18 months of his term of imprisonment.

In my view, for the reasons given here, the sentence is one which should be reconsidered and I would do that by adding to the sentence already imposed a recommendation that the applicant be considered for parole after serving nine months of the sentence.

In the result, I would allow the appeal to the extent of adding that recommendation but otherwise I would dismiss it.

DOWSETT J:  I agree.

LEE J:  I agree.

McPHERSON JA:  The order of the Court is that the appeal is allowed to the extent of adding a recommendation that the applicant be considered for parole after serving nine months of the sentence imposed.