R v Dearlove

[1995] QCA 561

IN THE COURT OF APPEAL	[1995] QCA 561
SUPREME COURT OF QUEENSLAND	C.A. No. 445 of 1995
Brisbane
Before	Fitzgerald P. Pincus J.A. McPherson J.A.

[R. v. Dearlove]

T H E Q U E E N

v.

TONY RAY DEARLOVE

(Applicant)

FITZGERALD P.
PINCUS J.A.

MCPHERSON J.A.

Orders made 07/12/1995

Judgment delivered 14/12/1995

R EASONS FOR JUDGMENT - THE COURT

Application for leave to appeal against sentence granted.
Appeal allowed.
Sentences below set aside and, in respect of both offences, order that the applicant be placed
on probation for a total period of two years and perform a total of 80 hours’ community

service. No conviction is to be recorded.

CATCHWORDS:	CRIMINAL LAW - sentence - permitting indecent treatment by a child under 12 with circumstances of aggravation - whether imprisonment was appropriate in the circumstances
Counsel:	Ms D. Richards for the Applicant M. Byrne Q.C. for the Crown
Solicitors:	Legal Aid Office for the Applicant Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	7 December 1995
REASONS FOR JUDGMENT - THE COURT

Orders made 07/12/1995
Judgment delivered 14/12/1995

The applicant has appealed against sentences imposed upon him on 31 October 1995. He pleaded guilty to two counts of permitting indecent treatment by a child under 12 with a circumstance of aggravation, and was sentenced to imprisonment for two years on each count, to be served concurrently, with a recommendation that he be eligible for parole after a period of nine months. The circumstance of aggravation was that the child was in the applicant’s care. At the date of this application, he has been in prison for a little over five weeks.

The applicant was 23 years of age when he committed the offences and 24 when he was sentenced. He has no previous offences and a good work history. Further, he has an unfortunate family history in that he was sexually abused by a grandfather from about the age of 12 until he was a young adult of 21 or 22. However, he had an excellent relationship with his mother and an acceptable relationship with his father and, although not academically outstanding, has always been socially well integrated and well behaved. A psychiatrist whom he consulted has reported that he has no sign of any major mental illness or gross personality defect and is generally well motivated with a wish to retain his job and remain a useful member of the community.

The unfortunate incident occurred when the applicant was minding a friend’s children, aged three and five. He had done so on previous occasions without incident and, on this occasion, when he put the children to bed after some boisterous play, he climbed in with them to settle them. He had an erection, and each child fondled his penis for a period of five to ten minutes. The younger child, a girl, informed her mother the following morning and police were contacted. When interviewed, the applicant admitted responsibility and ensured that there was no further trauma to the children. The only noticeable effect upon the children was that the older child, a boy, exhibits curiosity about the genitalia of both males and females.

The applicant neither initiated the contact nor touched either of the children, but now accepts that he should have put an end to their exploratory activities immediately and was genuinely remorseful immediately after it had occurred. Further, while he has no spontaneous sexual urges towards small children, he has pursued substantial counselling in order to ensure that he does not become involved in child abuse. According to the consultant psychiatrist, the applicant was confronted with “a rampant sexual curiosity which is commonly found among unrestrained young children”, and she expressed the opinion that it would be much preferable for the applicant to continue with counselling than to be incarcerated.

The sentencing judge emphasised the adverse aspects and consequences of the applicant’s behaviour, and expressed the opinion that imprisonment was inevitable. However, that was incorrect, and the prosecution did not seek to support that view in this Court.

Of course, sexual molestation of children is a grave offence, which must be deterred and will often be met with severe punishment. Nonetheless, it is inappropriate to substitute a broad attitude that prison must always follow for a consideration of the particular circumstances of each case, including the individual circumstances of the particular offender. In her written outline, counsel for the applicant summarised those factors in the following terms:

(a)         23 years old at the time of the offence;

(b)        no previous convictions;

(c)         good work history;

(d)        unfortunate family history involving systematic abuse by his grandfather;

(e)         isolated incident;

(f)         did not initiate contact but simply allowed it to continue;

(g)        remorseful, pleaded guilty;

(h)        full admissions to police which led to his arrest;

(i)         voluntarily sought counselling from three different sources;

(j)         good career prospects despite disadvantaged background;

(k)        negligible effect on children.

In our opinion, the circumstances to which reference has been made should not have attracted a custodial sentence but community based orders. Having regard to the time which the applicant has already spent in prison, it was appropriate that, with his agreement, the applicant was ordered to perform 80 hours’ community service and placed on probation for two years in substitution for the sentences imposed below. Further, there is no substantial basis for concern that the applicant might re-offend and, in the circumstances, it was appropriate that an order be made that no conviction be recorded.

The orders which the Court therefore made were that the application be granted and the appeal allowed, the sentences imposed below be set aside and, in respect of both offences, it be ordered that the applicant be placed on probation for a total period of two years and perform a total of 80 hours’ community service. It was also ordered that no conviction to be recorded.