R v Goodman and Attorney-General of Queensland

[1996] QCA 415

IN THE COURT OF APPEAL	[1996] QCA 415
SUPREME COURT OF QUEENSLAND
Brisbane	C.A. No. 351 of 1996
[R v. Goodman]

T H E Q U E E N

v.

BRUCE NORMAN GOODMAN

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Pincus JA
Derrington J

Ambrose J

Judgment delivered 29 October 1996
Judgment of the Court

SENTENCE BELOW IS SET ASIDE AND BY WAY OF SUBSTITUTION THEREFOR IT IS ORDERED THAT THE RESPONDENT BE IMPRISONED FOR THREE YEARS, SUCH IMPRISONMENT TO BE SUSPENDED AFTER TWELVE MONTHS FOR AN OPERATIONAL PERIOD OF FIVE YEARS

CATCHWORDS:Criminal Law - Sentence - Appeal by Attorney-General - Respondent convicted maintaining a sexual relationship with a child under 16 years, with a circumstance of aggravation - Respondent 43 years - Complainant 15 years - Whether sentence manifestly inadequate

Counsel:	Mrs L. Clare for the Appellant Mr S. Hamlyn-Harris for the Respondent
Solicitors:	Qld Director of Public Prosecutions for the Appellant Legal Aid Office (Qld) for the Respondent

Hearing Date: 21 October 1996

JUDGMENT OF THE COURT

Judgment delivered 29 October 1996

This is an appeal by the Attorney-General against a sentence of three years' imprisonment, to be suspended after one month for an operational period of five years, imposed upon the respondent on a count of maintaining a sexual relationship with a child under sixteen years of age, with a circumstance of aggravation, namely that at the time, the child was under the respondent's care.

At the time when the offence began the complainant boy was fifteen years and seven months old and it continued until he reached the age of sixteen years. Its extension beyond that time did not constitute an offence and does not attract punishment, though it could have evidentiary value as to the nature of the offence itself. The respondent was forty-three years of age at the time of the offence, which fell between 10 July 1989 and 14 December 1989, and he is now fifty years of age.

The trial lasted five days and was contested. The complainant was extensively cross- examined, and the respondent gave evidence denying any impropriety. He also alleged that the events during which the conduct took place happened only after the complainant's sixteenth birthday and so any conduct as alleged by the complainant would not have constituted an offence. The jury disbelieved him.

He has no prior convictions and a good work history. However, shortly before these offences he sustained a back injury in an industrial accident and this has had a seriously adverse effect on his capacity for work. He is married with four children only one of whom remains dependent on him, and his wife and children have remained loyal to him through this adversity. He has also contributed to community activities.

The offence began soon after the respondent became acquainted with the complainant when he took him swimming. After that, with the complainant's mother's consent, the respondent took him on a series of weekend camping trips approximately fortnightly. The respondent would also take his ten year old son on these occasions, but kept him physically removed from the scene of his criminal conduct while it was happening.

At first the respondent touched the complainant, who was sexually innocent and somewhat naive, and then masturbated him and himself. Although this was accomplished without any threat, it was followed by his threat to shoot the complainant and then himself if the complainant should tell anyone about the matter. There were subsequent indirect warnings not to tell anyone, which the complainant could well have taken as implied threats, for he was afraid that the respondent would harm him and believed that he had the means to do so.

The complainant continued to accept the respondent's invitations that led to further conduct of the same general nature because, he says, he was afraid to refuse. It is also probable that he felt caught up in the situation and unable to seek help because of his shame.

Over the period of the whole relationship, there were some variations in the respondent's conduct. He showed the complainant a pornographic video in his own home before masturbating him. Sometimes he would ply him with alcohol and undress him before interfering with him. On a few occasions he performed fellatio on him, but did nothing when the boy refused to reciprocate. There was one unsuccessful attempt at sodomy. However, most if not all of these variations could not be demonstrated to have taken place prior to the complainant's sixteenth birthday and should be disregarded for the purpose of sentence. Nevertheless, it follows from the jury's verdict that there had been at least three offences of a sexual nature within that time.

In summary, the following matters were most germane to sentence -

•The complainant was a young sexually-innocent boy, but approaching the age when the

protection afforded by the law would cease.

•The offences occurred on at least three occasions.

•They occurred while the complainant was under the respondent's care.

•There were threats of violence if the complainant were to report the matter.

•The complainant suffered a psychological reaction to the offences.

•The respondent showed no remorse, and his contest of the matter put the complainant under

considerable stress.

•The respondent had no prior convictions and a good work history.
•He had provided for his family and continued to have their moral support.
•He had been engaged in some community organisations during his life.

The Attorney does not challenge the head sentence of three years, but argues that the recommendation for parole after one month renders the punishment so inadequate as to indicate that it is contrary to principle. In support of that the following propositions were advanced. In R v. L CA No. 463 of 1995 and R v. Pham CA No. 435 of 1995 it was said that child molesters should be sent to prison in all but exceptional circumstances; and in R v. B CA No. 328 of 1995 it was said that where a person had been engaged in secret conduct of a reprehensible kind, his prior good record should not "necessarily have weighed all that heavily with the learned sentencing judge".

It is argued that there were no factors calling for special consideration in this case, and that the offence was persistent and calculated.

While full credit should be given for the positive features that appear in the above catalogue of relevant factors, the nature and persistence of the offence are very serious. The victim was a vulnerable young person and the respondent took advantage of his position of trust. The harm done to the victim was significant and he was not spared the stress of the trial through any remorse on the respondent's part.

With respect, the learned sentencing judge plainly gave too much weight to the respondent's creditable features and erred further in principle in failing to accord sufficient regard to the seriousness of the offence and the respondent's lack of remorse. This should be remedied by increasing from one month to one year the time for actual imprisonment before the suspension of the respondent's sentence.

ORDER

The sentence below is set aside and by way of substitution therefor it is ordered that the respondent be imprisoned for three years, such imprisonment to be suspended after twelve months for an operational period of five years.