R v L & Attorney-General of Queensland

[1996] QCA 10

IN THE COURT OF APPEAL  [1996] QCA 010

SUPREME COURT OF QUEENSLAND  C.A. No. 463 of 1995

Brisbane

BeforeFitzgerald P.

McPherson J.A.
Mackenzie J.

[A-G v. L]

T H E   Q U E E N

v.

L  Respondent

ATTORNEY-GENERAL OF QUEENSLAND  Appellant

FITZGERALD P.
  MCPHERSON J.A.
  MACKENZIE J.

Judgment delivered 16/02/1996

REASONS FOR JUDGMENT - THE COURT

Appeal against sentences allowed.
Set aside the order by the sentencing judge that the terms of imprisonment be suspended.
Warrant of arrest to issue to lie in the Registry for seven (7) days.

CATCHWORDS:     SENTENCE - Attorney-General appeal - nine counts of indecent dealing with two daughters - circumstances of aggravation - respondent good work history and limited criminal history - should sentences be suspended for an operational period of three years

Counsel:  Mrs L. Clare for the Appellant

C. Callaghan for the Respondent

Solicitors:Queensland Director of Public Prosecutions for the Appellant

Boe and Callaghan for the Respondent

Date(s) of Hearing:      30 January 1996

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 16/02/1996

The Attorney-General has appealed against sentences imposed upon the respondent in the District Court at Brisbane on 27 October 1995 when he pleaded guilty to four counts involving his daughter, D, and five counts involving his daughter, R. 

D was born on 14 October 1972, and the offences related to her occurred in the period between the end of 1982 and the beginning of 1986, when D was aged between 10 and 13 years.  Each count alleged unlawful and indecent dealing with a girl under the age of 16 years with the circumstance of aggravation that she was under the age of 14 years.  She was, of course, also a lineal descendant of the respondent.  The first count involved an occasion when the respondent placed his hand upon D's vagina; the second count related to an occasion when the respondent forced D's hand onto his penis; on the third occasion, the respondent put his hand under D's nightie and touched her in or around her vagina; and on the fourth occasion, the respondent moved his fingers inside D's vagina when they were together in the family vehicle, causing pain.  The respondent ceased his misconduct towards D when she asked him to do so, and he moved from the family home into a caravan in the yard and, about a year later, away from the family.

However, in 1993 the respondent began to take his two youngest children, a son and the other complainant, R, on holidays.  Five offences were committed in relation to R over a 12 month period during 1993 and 1994.  At the time, R was aged between seven and nine years.  The five counts to which the respondent pleaded guilty in relation to his offences against R involved two offences of unlawful and indecent assault by digital penetration of the vagina, and three of unlawful exposure to an indecent act.  Circumstances of aggravation were R's age (under 12 years) and the fact that she also was a lineal descendant of the respondent.  On the first of the two occasions when the respondent digitally penetrated R's vagina she told him it hurt and asked him to stop.  The other three counts involved the respondent masturbating in front of R inside a caravan where they were living at the time.  The respondent terminated his offending conduct in 1994 when R's mother informed him of her distress prior to visiting him.

In 1995, R complained to D, and the police were informed.  When initially interviewed, the respondent declined to cooperate until after he had obtained legal advice.  It is not clear when he first made admissions, and there is some confusion in the information given to the sentencing judge.  However, it is clear that the respondent’s daughters were not required to give evidence at any stage in the proceedings and it seems that, by committal at least, the respondent had either pleaded guilty or indicated his intention to plead guilty to correctly formulated charges. 

The respondent was sentenced to imprisonment for 18 months on each count, to be served concurrently, with all sentences wholly suspended for an operational period of three years.  According to the Attorney-General, the sentences should not have been suspended.  Such considerations as might be  urged in the respondent’s favour were adequately recognised, it was submitted, in the head sentence of 18 months’ imprisonment.

The respondent was born on 15 October 1946, has a good work history and a criminal history of limited relevance.  His principal conflicts with the law have resulted from sexual urges which, according to statements which he made to a Clinical Psychologist, Dr. E. Bevan Wiltshire, he found “irresistible”.  When in his teens, he was twice convicted of wilfully exposing himself (in 1966 and 1969), and he committed a similar offence in 1987.  Although he had a successful sexual relationship with his wife for some years, and had brief sexual relationships outside his marriage and after he was divorced, much of his sexual drive has been released by masturbation.  According to Dr Wiltshire, the respondent’s difficulties have been exacerbated by his excessive use of alcohol, although in an attempt to reduce his problem with alcohol “... he has now reduced his drinking very considerably”.  In his report, Dr Wiltshire said that the respondent was cooperative and is of average intelligence, and realistic in his self-assessment.  However, his clinical profile is consistent with a history of adolescent conduct disorder and anti-social behaviour and, in particular:

“... he is subject to considerable anxiety and rigidity in relation to obsessive- compulsive sexual thoughts and behaviour. ...

He is a person who is quite withdrawn and isolated, feeling somewhat cut off from the people around him. ...”

In another disturbing passage, Dr Wiltshire said :

“With regard to the alleged events he stated that the urges he felt were no different from those at the times he had exposed himself.  There was no particular significance in the fact that the girls were his daughters; they were to all intents and purposes just females who happened to be available at the time.  He emphasised that his move out of the house and into the caravan was a measure he took to try to control himself by reducing the temptation.”

Dr Wiltshire’s summary and opinion were expressed in the following terms:

“L is a 48 year old man of average intelligence who seems to have come from a reasonably average family background.  There are no outstanding events in childhood that he can recall.  He left home at the age of 16 to work on a dairy farm.

His work history is consistent with his educational attainment, but both are below what he might have been capable of given his assessed intellectual level.

His social and psychosexual development seem to have been somewhat slow.  Although brought up in a semirural context he was unusually unaware of reproductive processes throughout his teens.  His generally retiring nature would have resulted in difficulties in making easy contact with girls with whom he might have had more appropriate sexual encounters readily experienced by his peers.  As a consequence his sexual needs were seldom met in the context of a caring relationship, with the result that they came to be expressed in inappropriate ways.  L recognises that his actions in this regard have been improper and unacceptable, and carries guilt and remorse for what he has done.

The overall personality picture is of a rather isolated, emotionally immature and psychologically weak man who did his best to control his natural impulses, succeeding on most occasions, but on others finding them impossible to manage.  With increasing age and reduced drinking pattern the pressure is diminishing, and it is becoming less likely that he will remain at risk of repeating his offences in the future, although this possibility cannot be discounted entirely.  Importantly, L seems relieved to have the behaviours brought out into the open, where his sexual urges can be recognised and dealt with.  He is willing to have any appropriate psychological treatment, and the indications are that he might well benefit from it.”

After submissions had been completed, the sentencing judge informed the prosecutor that he was “... thinking about a suspended sentence”, and invited the prosecutor to comment.  The prosecutor had earlier submitted that the appropriate sentencing range was imprisonment for a period of between 6 and 18 months and, while conceding that “... we’re coming down to the bottom of the scale insofar as criminality for this type of offence is concerned”, the prosecutor pointed out that custody should follow for such offences except in “exceptional circumstances” and said:

“In my submission Your Honour should look very carefully though at giving a wholly suspended sentence in this case simply for those very features, that the offences occurred when both children, or both his children, were quite young and, in my submission, the circumstances that have been put forward aren’t exceptional ...”

Before turning to the sentencing judge’s remarks, there are two further matters which ought be noted.  One is that, understandably, the respondent has lost the affection of his children.  The other is that the respondent prepared himself for incarceration by resigning his employment and giving such property as he had to his former wife.  It is, of course, a consequence of the course taken by the sentencing judge that the respondent has gone back into the community, and it was not disputed that he is attempting to renew his employment and has been partially successful in doing so.

The sentencing remarks are quite brief, and can usefully be quoted.  His Honour said:

“... In your case I think I can make an exception and pass suspended sentences.  It is in my opinion, a borderline case but should be treated as an exceptional one and I will do so.  In arriving at that conclusion, I do not overlook the seriousness of these offences and the degree of prevalence in relation to them.  It would be more usual than not, I expect, for custodial sentences to be passed in cases such as these, but there will be cases occasionally, where an exception must be made.  It is true that your case is not exactly the same as the case of Gardner CA number 10 of 1994, which counsel have helpfully referred me to.  Mr Clutterbuck, the crown prosecutor, has pointed out to me, features which he submits, distinguishes your case from that case.  He submits the present case is worse than Gardner and that I should think very seriously about passing a suspended sentence.  But generally speaking, in my opinion, your case is or can be likened to the one of Gardner and should be treated as one of those cases where an order for immediate incarceration can be avoided.

Your cooperation, in my opinion, has been of a high order, there being no cross-examination in the Magistrates Courts of the complainants and you indicated your pleas of guilty at a very early stage.  You have been a hardworking man throughout your adult life.  References have been tendered in relation to that and your remorsefulness has been of a high order.

You have had problems in relation to matters of sex and in relation to your sexual development and that is the subject of Mr Wiltshire’s report.  You offended, it would seem, because of the access you had to these two young girls at the time, one of whom I note is now 23 years of age or thereabouts.  I get the impression from Mr Wiltshire’s report, that it is really unlikely that you will re-offend.  You are not in contact with the two girls, your daughters, now and I believe that they are resentful and that is understandable and that you probably will not be having contact with them in the immediate future.

Mr Wiltshire makes the point in his detailed report that you have done the best you can with the problem you have and that is even indicated in some of the facts that I have been told about in relation to the offences themselves.  You desisted of your own volition and that can be said in relation to both complainants in this case.

I do not know anything about the psychological condition of the two victims of these offences.  I do not overlook their interests in the whole matter, but I have to weigh that up against other factors which are, in my opinion, important.

In my opinion, the recurrence of offences by you is not likely.  You have a job available to you straight away if an order is not made for your immediate imprisonment.  It is a difficult case, I appreciate that and normally, custodial sentences, which will operate immediately, will be imposed.  That is often times necessary so as to deter others who commit offences such as these and so as to deter the offender himself.

On this occasion however, I am of the opinion that your case should be treated as an exceptional one and I will therefore pass a suspended sentence.

In relation to all of the offences that are before the Court today, that is all of them on each of the indictments, I sentence you to terms of imprisonment of 18 months for each of those offences and order that the terms of imprisonment be served concurrently.

I order that the whole of those terms of imprisonment be suspended forthwith and you must not commit another offence punishable by imprisonment within a period of three years if you are to avoid being dealt with for the suspended terms of imprisonment.

...”

Counsel for the Attorney-General criticised a number of the sentencing judge’s conclusions, especially the references to “cooperation ... of a high order” and “remorsefulness ... of a high order” and the statements that “it is really unlikely that you will re-offend”.  While these remarks suggest that his Honour was extremely favourably disposed to the respondent given the circumstances, this Court is not justified in departing from the sentencing judge’s opinion on those points.

However, that does not dispose of the matter.  The Attorney-General correctly emphasised the prevalence of such offences and that in this instance the respondent offended against two daughters, with the offences against each separated by a period of years, the respondent’s position of trust and responsibility in relation to his victims and their innocence and vulnerability, and the widespread community expectation that such offences be severely punished.  Further, it was pointed out that, although there was no evidence of psychological damage to the children, that is a common consequence of childhood sexual abuse.

There was little that the respondent could say to challenge these propositions and there was no real contest between the parties concerning the applicable principles.  The court should interfere only if it was not open to the sentencing judge to conclude that the circumstances of this case are so exceptional as to justify a non-custodial sentence; conversely, unless that conclusion was open to his Honour, he erred in principle in not requiring the respondent to serve a period of imprisonment.

According to the submissions for the Attorney-General, the circumstances can be sufficiently special to avoid a custodial sentence for sexual molestation of children only if they disclose “exceptional cooperation and an absence of previous convictions” by the offender.  While the sentencing discretion should not be fettered by a formula, equally sentencing judges should be careful not to misdescribe circumstances as exceptional as a basis for not sentencing an offender to prison.  In our opinion, the sentencing judge here made that error, and, in consequence, has inadvertently made things worse for the respondent.  Loath as we are to send a man to prison after he has been released back into the community, there seems to me no alternative when he has molested his young daughters because they were “ ... just females who happened to be available at the time”.

We allow the appeal and set aside the order that the terms of imprisonment imposed by the sentencing judge be suspended.  If needed, a warrant should issue for the respondent’s arrest.