R v G and Attorney-General of Queensland

[1995] QCA 158

IN THE COURT OF APPEAL [1995] QCA 158

SUPREME COURT OF QUEENSLAND

C.A. No. 477 of 1994

Brisbane

[R. v. G]

THE QUEEN

v.

G

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Macrossan C.J.
Davies J.A.

White J.

Judgment delivered 05/05/1995

Judgment of the Court

A	PPEAL AGAINST SENTENCE DISMISSED.
CATCHWORDS:	CRIMINAL LAW - INDECENT DEALING with a child under age of 12 in the respondent's care; whether the conduct fell within the less serious end of this type of offence; whether sentence imposed was manifestly inadequate.
Counsel:	Mr. M. Byrne Q.C. for the appellant Mr. S. J. Hamlyn-Harris for the respondent
Solicitors:	Queensland Director of Public Prosecutions for the appellant Legal Aid Office for the respondent

Hearing Date: 21 February 1995

REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 5th day of May 1995

This is an Attorney's appeal against a sentence of two years imprisonment, wholly suspended for an operational period of three years, imposed in the District Court on 27 October last for the offence of indecent dealing with a child under 12 years of age in the respondent's care. The offence occurred in the first half of 1994. The respondent was then living in a de facto relationship with the mother of the complainant child. The child is a girl who was then 10 years of age.

On the day on which the offence was committed the complainant child when she came home from school entered the bedroom in which the respondent was watching television. She lay at the end of the bed on which he was lying and massaged his feet whilst also watching television. At his suggestion she left the room to change into something more comfortable which consisted of a T-shirt and a pair of bike pants. She returned to the same position on the bed. After a short while the respondent asked her to lie beside him which she did. He then put his hand on her legs apparently running it up her legs to her thigh area and then on her breasts by putting his hand up under her loose T-shirt. He then took off her pants and inserted two fingers into her vagina. Later he pushed her head down to his penis which was then exposed and placed it in her mouth. He kept it in that position until he ejaculated into her mouth. So far as the complainant child can recall nothing was said during these events. However after he had ejaculated the respondent told her to go and have a shower.

The complainant did not complain to anyone about these events for a considerable time. Her first complaint, made to a school teacher after a class discussion about reporting of bullying, was made about six months later. When first she complained about the respondent's conduct she mentioned only that he rubbed her breasts. It was some time later that she complained about the other conduct involving digital penetration and oral sex. This is of some relevance in assessing the genuineness of the respondent's alleged remorse and his reason for requiring the complainant to be cross-examined, to which we shall return later.

It need hardly be said that indecent dealing covers a broad spectrum of activities ranging from isolated acts of touching to persistent and repeated acts of violent violation of the child's body involving threats or intimidation. In order to determine whether, in the present case, the learned sentencing judge was in error in imposing the sentence which he did it is necessary, in the first place, to determine where the respondent's conduct falls in that broad spectrum. There are two important aspects of that conduct. One is that, whilst the acts of touching the complainant on her legs and breasts were towards the least serious end of that spectrum of conduct, the penetration of the complainant's vagina with his fingers and forced oral sex were much more serious acts involving, as they did, non-consensual violation of the integrity of her body. The other aspect, which is favourable to the respondent, is that these acts occurred only once, they were not induced by threats or intimidation and there were no subsequent threats of reprisal in the event of disclosure by the complainant of what had happened. The absence either of repetition of indecent behaviour or of threats or intimidation make this an unusual case.

There was no evidence before the Court as to what effect, if any, the respondent's conduct had upon the complainant's psychological well-being. The complainant gave evidence on sentence because, initially, the respondent refused to accept that his indecent behaviour had included the acts of digital penetration and oral sex. The learned sentencing judge, who saw and heard her, said that she appeared to have suffered no obvious emotional or psychological harm. That observation, in our view, carries very little weight. There is no reason to believe that, because the complainant was not visibly upset in giving her evidence, she had suffered no emotional or psychological harm. On the contrary it is unlikely that she did not. But it is impossible to form any view, one way or the other, on the likely extent of that harm.

The other matters which are relevant in determining whether, in imposing the sentence which he did, the learned sentencing judge was in error, are personal to the respondent; in particular those said to show remorse for his conduct and those otherwise relevant to his prospects of rehabilitation.

The main evidence on the former came from the report of Mr. Graves, a psychologist, from whom the respondent sought counselling. The respondent attended for counselling on 7 September 1994 and 17 October 1994. He complained of feeling depressed and ashamed and said that his shame was so great that he did not want to venture out of the house in case he met an acquaintance. Consequently he had become socially isolated. He could not explain what he had done and found it repugnant. The psychologist said he presented with most organic features of a mild reactive depression.

When the complainant first complained about the acts of touching the respondent admitted to them. However when she later complained of the acts of digital penetration and oral sex he denied them. That was why the complainant was required to submit to cross-examination on the sentence hearing. It was put on his behalf that this was because he could not come to grips with the full extent of his indecent conduct. The learned sentencing judge must have accepted this as the explanation rather than that, knowing the extent of his indecent conduct, he was nevertheless seeking a finding that it did not include the worst aspects of it, because his Honour expressed satisfaction that the respondent deeply regretted his action. Notwithstanding that his Honour's conclusion in this respect does not depend upon seeing and hearing the respondent, for he did not give evidence, but rather on the acceptance of what was said in, and capable of being inferred from the psychologist's report, we can see no reason to reject his Honour's conclusion.

There are a number of other personal matters in the respondent's favour. He was 35 years of age with no prior criminal history of any kind. He has had a reasonable education and a good work history. He was employed as a coach driver and for a number of years had also been a self-employed musician. Prior to that he had been an electrician. He also appears from a number of references tendered on his behalf to be a useful, popular and well-respected member of the community in which he lives. The learned sentencing judge was therefore entitled to treat the offence as an isolated transgression in what was otherwise a blameless life. And though one may question the weight of the psychologist's opinion that the respondent was unlikely to re-offend, the learned sentencing judge was entitled to accept it as he plainly did. The question then is whether the learned sentencing judge, having taken into account the severity of the offence and its possible effect on the complainant and, on the other hand, the factors personal to the respondent, erred in imposing the sentence which he did.

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 inconsistency. And there must be greater reluctance, on the part of this Court in an appeal by the Attorney, to interfere in those discretionary considerations, because of the nature of his appeal, than in an appeal by a convicted person especially where, as in this case, the liberty of a person is at stake. All of these principles follow from the decision of this Court in The Queen v. Melano C.A. No. 393 of 1994, judgment in which was delivered on 1 December 1994.

Notwithstanding the general comments made by this Court in H. (1993) 66 A.Crim.R. 505 there will nevertheless be cases of indecent dealing where a combination of the circumstances of the offence and the facts personal to the convicted person will justify a sentence the practical effect of which is non- custodial. Gardner (C.A. No.10 of 1994, judgment delivered 12 April 1994) and C (C.A. No.44 of 1994, judgment delivered 20 April 1994) are examples of cases of this kind. It may be noted that both were appeals by the Attorney in which, because suspended sentences were imposed at first instance, the liberty of the subject was involved.

This is not a case, like H., of an attack upon a defenceless child involving gratuitous violence and physical injury. Nevertheless it is probably correct to say that, in cases where the facts constituting the offence involve, as they did here, both some degree of force and violation of the child's body, a justified level of public outrage at such conduct and the need to deter others will generally require the imposition of a custodial term rather than one which allows the offender to remain at large. It is also true that, had a custodial term been imposed in the present case, the respondent would not have been able to persuade this Court that he should have been allowed to remain at large. But it does not follow from either of these conclusions that the learned sentencing judge erred in imposing the sentence he did. Whatever view we may have taken had we been imposing sentence at first instance we cannot conclude that the learned sentencing judge erred in imposing the sentence which he did.

We would therefore refuse the application.