R v L

[1994] QCA 243

[1994] QCA 243

COURT OF APPEAL

MACROSSAN CJ
PINCUS JA
McPHERSON JA

CA No 121 of 1994

THE QUEEN

v

L  Respondent

ATTORNEY-GENERAL OF QUEENSLAND                Appellant

BRISBANE

DATE 15/06/94

JUDGMENT

THE CHIEF JUSTICE:  The Attorney-General appeals against sentence.  There were two offences involved, both of indecent dealing and both having occurred well before proceedings were brought in respect of them.

The first instance occurred between February 1959 and February 1960, that is, about 34 years ago; and the second between November 1980 and February 1981, that is, about 13 years ago.

In imposing sentence on 1 March of this year, the learned District Court Judge ordered that the respondent be released on a $500 recognisance to be of good behaviour for two years and ordered as well that no convictions be recorded.

The respondent was a 53 year old.  That is, he was aged - according to the calculations put before us, about 19 or 20 at the time of the first offence and about 40 at the time of the second.  He had no previous convictions.

The circumstances sufficiently appear for present purposes in the outline by counsel for the Crown below.  The age of the girl in respect of the earlier of the two offences was three or four.  The respondent was described as being the complainant girl's great aunt's adopted son but known, so far as she was concerned, as her uncle.

On the occasion then of the first offence, the respondent visited the home of the complainant's parents.  He entered the bedroom of the girl and her sister ostensibly, it was said, to read them a bed-time story.  In the course of reading to the complainant, the allegation was that the respondent touched her in the area of her vulva and clitoris, that touching taking place underneath the girl's clothing and involving also some penetration of the outer lips of her genitals by his finger.

The respondent, when the matter recently came to light, that is in about January of last year when the girl approached the authorities about the matter, stated that he had no recollection of the penetration alleged against him but he seemed prepared to accept that it may have occurred.

When the matter was brought to Court he, of course, pleaded guilty with all that was involved in that plea.  The complainant girl did not make any complaint to her family at the time and left it for the interval that I've described before she brought her complaint to the authorities.

The allegation was that the complainant believed that the episode had some lasting effect on her and made her feel uncomfortable even now about sexual contact even with her husband.

The second episode occurring more recently but still very much in the past from the present standpoint occurred when the complainant there involved, a different girl, was six years old.  That girl was 19 years of age by the time the proceedings in respect of it came to Court.

The respondent was described as being this complainant’s father’s half brother.  Once again, he was known to her as her uncle, that being no doubt a convenient term for her to use and others to use of him in respect of her.

The complainant’s family and the respondent were together at a barbecue area in a park at the Gold Coast.  During the afternoon the respondent approached the complainant girl who was then on a swing, picked her up, and while carrying her it is said moved his thumb underneath her clothing and touched the girl on the outside of her vagina.  It was said that his thumb penetrated the area between the lips of the girl’s genital area.

The respondent again claimed to have no specific recollection of penetration but was prepared to accept that it may have occurred.  This complainant girl, like the first, did not tell anyone what happened at the time but eventually she did tell her parents in late 1992.

These episodes of indecent dealing have a seriousness about them which cannot be denied because the two girls involved were so young but in terms of this category of offences they are far from being amongst those of the more serious kind which this Court encounters.

In the course of making his submissions as to an appropriate penalty, the prosecutor below used words which clearly left it to the Judge to decide whether a conviction should be recorded.  He referred to some salient aspects and said, addressing the Judge:

"Your Honour may well consider those matters as being relevant to the question of whether a conviction should be recorded."

Those words, I think, would ordinarily be understood by the Judge and anyone else in Court as involving the prosecutor as taking no stand on the matter but being neutral and leaving it to the Judge to decide whether there should be a conviction.

Counsel for the respondent, addressing later, certainly took the observation in that sense and he, in the course of his submission, said, "It doesn't appear by the Crown's submission that the Crown sees the imposition of a conviction as necessary."  In other words, he said it was left to the Judge's discretion.  That summary of the prosecutor's attitude was not subsequently contradicted by the prosecutor and the Judge shortly after proceeded to impose his sentence.

The personal circumstances of the respondent are matters relevant to mention now.  He had a hard and difficult life in his early years but subsequently by hard work had made his life a fair success.  He worked with his wife and other members of his family to build up a business in which he was engaged; a company which dealt in craft supplies.

However, after the present matters came to light, word of what was alleged travelled fast particularly amongst other persons in the trade and in particular one company, of which the respondent's company was the sole agent for Queensland, got to hear of it.  As a consequence of the allegations and the offences established following conviction, the agency was withdrawn.

Financial loss to the respondent's company followed.  They were indeed significant.  It was said that many thousands of dollars was lost and this was indicated by the fact that the staff of the respondent's company, as business fell away, had to be reduced from 13 people about one year before the hearing below down to about six only.

The company was, in the meantime, locked into substantial outgoings by way of lease payments and considerable losses followed so that the business had to be placed on the market.  The respondent's health was not good and it suffered as a result of these matters corning to light and being prosecuted.  He had been a chronic asthma sufferer for many years, and in recent times, following the charges being brought, he suffered heart problems, and indeed these seem to have culminated in a heart attack in December of the year before he was dealt with below.

The Judge considered the circumstances of the two offences and I have already outlined those.  He noted the respondent's present age, his married state, and expressly referred to his lack of previous convictions.  He stated that as the circumstances revealed, neither of the two offences with which the Court was concerned was premeditated and both were old.  He accepted the respondent's genuine remorse and shame, and noted the substantial business losses which had resulted from his conduct being known within the business world.  The Judge noted also the adverse effect on the respondent's health.

There is no doubt that in this case the consequences of the conduct involved in the offences have been particularly painful for the respondent, that is beyond the average which can be expected in other otherwise similar cases.  The Judge stated the particular difficulty he had in deciding whether or not convictions should be recorded.  There is no hint in the remarks below that the Judge took his task lightly or underestimated any of the seriousness that was inherent in the offences.  He does not appear to have overlooked any factor in proceeding to his decision on whether a conviction should be recorded.

In the end he said that in all of those circumstances he thought there should be no conviction recorded. He declared himself as proceeding under section 19 of the Penalties and Sentences Act coming to an order which he then made that the respondent be released on entering into a recognisance in the sum of $500 conditioned as I have indicated.  It may be said that the Judge could have come to a different decision in the matter and that objection might not have been able to be made to any such a different decision and order but we are not concerned to examine that situation.

We merely have to decide whether anything in this case calls for the intervention of the Court. One complaint or possible area of complaint which is made is that the Court, in proceeding under section 19 of the Penalties and Sentences Act, made a statement which impliedly underestimated the seriousness of these offences and others of a similar kind. That is because it is said section 17 of that Act, which opens the way to the making of orders under section 19, ordains that those orders shall be made when it is appropriate in the Court's opinion that no punishment or only a nominal punishment should be imposed on an offender.

Speaking of the origins of some of the sections which appear in the Penalties and Sentences Act it is ssuggested that section 19 can be regarded as coming from the old section 657A of the Code.

However, as counsel for the respondent points out, under section 30 of the Penalties and Sentences Act which does not on the face of it appear to have the same lineage an order of the same kind as that in the present case in terms of all practical effect, could have been made.  That is, a recognisance could have been ordered in an amount declared by the Court conditioned that the offender keep the peace and be of good behaviour for a period fixed by the Court.

Before us counsel for the Attorney said that his submission was that in this case a term of imprisonment should have been ordered although it was appropriate to suspend it.  His contention was that a term of 12 months' imprisonment wholly suspended would have been a proper order to make with a conviction being recorded.

One problem in the way of that submission is that it was not made below, that is nothing of that kind was suggested below.  The matter, as I have already indicated, was left open by the prosecution to be decided by the Judge in his discretion without a preference being conveyed.

There was some difficulty experienced, I think it is fair to say, by counsel for the Attorney-General in this Court in indicating why it was in his submission necessary that a term of imprisonment should have been ordered even if, as he conceded, it was appropriate totally to suspend it.

He was, of course, concerned amongst other things to have a conviction recorded as it was said to mark the seriousness of the behaviour but I do not consider there has been any underestimation of the seriousness by the sentencing Judge.  All of the circumstances of the case including in particular the extent to which the respondent has suffered serious consequences, the time which has passed since the offences were committed and the fact that the respondent had no previous convictions whatsoever lead me to the conclusion that this is not a case where the Court should interfere with the sentence actually imposed.

I mention that counsel for the Attorney in this Court said that in the alternative to an order for imprisonment totally suspended being made it would have been appropriate to impose a fine but there were reasons against that including, in particular, the respondent's difficult financial plight.  In any event, again, that was a matter which was not suggested to the sentencing Judge below.

All in all there is no cause to interfere.

PINCUS JA:  I agree.

McPHERSON JA:  I agree.

THE CHIEF JUSTICE:  The appeal then is dismissed.