R v B

[1994] QCA 514

B	Applicant
BRISBANE ..DATE 26/10/94

[1994] QCA 514

COURT OF APPEAL

McPHERSON JA
DAVIES JA

DERRINGTON J

CA No 360 of 1994
THE QUEEN
v.

JUDGMENT at Gympie on 19 August 1994 of five counts of indecently and unlawfully dealing with a child under the age of 12 who was in his care; three of permitting himself to be indecently dealt with by that child; and one of unlawfully exposing that child to an indecent act.

He had pleaded guilty in respect of each of those offences. He was sentenced to imprisonment for three and a half years, with a recommendation that he be considered to be eligible for release on parole after serving 15 months of that term. He seeks leave to appeal against that sentence.

All of these offences were committed between 17 July and 10 August 1993. The victim was 11 years of age at the time and the applicant was her step-father. Four of the counts of indecent dealing and two of permitting himself to be indecently dealt with were committed between 17 and 19 July 1993 while the victim's mother, the applicant's wife, was away at a funeral.

The other offences were committed between 3 and 10 August 1993 while the victim's mother was away visiting her own mother. During both periods the victim had been left in the applicant's care. The applicant's indecent behaviour commenced immediately his wife left. On driving back from the bus terminal where he had deposited her he kept asking to hold the victim's hand. Later at home he asked her to sleep within his and her mother's bed, and asked her to play doctors.

JUDGMENT When she said she didn't want to he told her not to hurt him and it looked to her as if he was going to cry. He later touched and put his finger in her vagina after taking her underpants off. He told her that he would buy her presents and give her money if she would let him touch her. The next day he asked her if he could lick her, and when she declined he said she was hurting him.

She later agreed and he took her pants off and began to lick her vagina. He then asked her to lick him, and she licked his penis. The following night followed a similar pattern. Again, a similar pattern ensued, once the wife and mother had departed on 3 August. The victim told the police the same thing happened just about every time the mother was away.

One night, during this later period, he rubbed himself around his penis with a towel and ejaculated in her presence. There can be no doubt of the seriousness of offences such as this.

The applicant, who was in a position of trust, deliberately manipulated a young child to gratify his own sexual feelings.

Deterrence of the applicant and of others who might be like- minded required the imposition of a term of imprisonment.

Nevertheless, it must be said that looking at this case, in the context of others of its kind, the conduct involved was not towards the more serious end of the range. No force was

used; no penetration was attempted; and on the evidence which

JUDGMENT
must be accepted the conduct was not sustained over a long
period of time.

Moreover, although no doubt the applicant's conduct would have been very upsetting for the young girl, and perhaps will continue to upset her for a long time there was not, in this case as there is in some others, evidence of any serious long- term effects on her.

There are some other matters which the learned sentencing Judge quite properly took into account in the applicant's favour. Although he had a previous unrelated conviction in

1981 he had had no convictions of an kind since then. At the
time of commission of this offence he was 33 years old. He
pleaded guilty at an early stage because he did not want to
expose the child to any further stress.

He also expressed extreme remorse for his conduct. The degree of seriousness of the applicant's conduct constituting offences in the present case and the matters to which I have referred in my view required the imposition of a sentence substantially lower than that imposed by the learned sentencing Judge.

Two recent decisions of this Court may be used to illustrate that. In the first of them, The Queen v. Collins, CA 29 of 1993 delivered on 15 March 1993, the applicant pleaded guilty to five counts of indecent dealing with children under the age of 12. Although there were fewer counts in that case than

JUDGMENT this the conduct of the applicant was very much more serious, involving as it did indecent dealing with four separate children, all of whom were either children or, in effect, children of the applicant and under his care.

They were permitted over a lengthy period. The fact that this Court refused an application for leave to appeal against that sentence does not, of course, establish that this Court viewed the sentence as an appropriate one. Nevertheless, it stands as a sentence of the same duration as this and also with the same recommendation of parole in respect of conduct which was considerably more serious than this.

The second case is Attorney-General on D, CA 146 of 1993, judgment in which was given on 13 July 1993. This was an Attorney's appeal against a sentence of release upon entering

into a recognisance in the sum of $200, conditioned that the
respondent appear before the Court to be sentenced within a
period of two years, and further conditioned that in the
meantime he keep the peace and be of good behaviour.

He had been convicted of five counts of indecent dealing with a child under 12, and three of exposing a child under 12 to an indecent film. He had pleaded guilty to those counts. The complainant, an 11-year-old girl, was his wife's daughter. He was in a position of trust towards her, she being under his sole care whilst his wife was in hospital.

JUDGMENT The conduct, which was rather similar to that in this case, extended over a period of seven to nine months. The child protested about the conduct but was prostituted by a payment of money and by gifts. The child was also frightened of the applicant who had also threatened at a later time to have intercourse with her.

The main factors in that case, which appear to have induced the learned sentencing Judge not to send the respondent to gaol, were his willingness to undergo psychological treatment; some apparent success with that treatment; his early confession and apparently more importantly the wishes of his wife and the apparent wishes of the complainant child that he remain in the family.

Notwithstanding those factors, this Court thought that the respondent should be sent to prison and substituted a term of 18 months' imprisonment. Although the conduct involved in that case appears to have been at least as bad and possibly worse than this, the evidence of the psychologist and of the respondent's wife were important factors in the imposition of a term of imprisonment of 18 months.

Here the applicant, in the present case, pleaded guilty at a very early stage, but unlike the case to which I have just referred the marriage which was apparently deteriorating at the time of the commission of these offences has now broken down entirely. In my view an appropriate sentence in the present case would be one of two and a half years.

JUDGMENT Taking into account all factors including the plea of guilty and the applicant's remorse I think that there should be a recommendation that he be eligible for parole after serving one year of that term.

I would therefore allow the application and the appeal; set aside the sentence imposed; and substitute a sentence of two and a half years' imprisonment with a recommendation that he be eligible for parole after serving one year of that term.

McPHERSON JA: I agree with the reasons and with the order proposed by my brother, Davies.

DERRINGTON J: I agree.

McPHERSON JA: The order will be as Davies JA stated it.

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JUDGMENT