R v LA; Ex Parte A-G (Qld)

[2000] QCA 123

[2000] QCA 123

COURT OF APPEAL

de JERSEY CJ
DAVIES JA
THOMAS JA

CA No 428 of 1999

THE QUEEN

v

LA  Respondent

ATTORNEY-GENERAL OF QUEENSLAND  Appellant

BRISBANE

DATE 10/04/2000

JUDGMENT

THE CHIEF JUSTICE:  The Attorney-General appeals against two sentences imposed upon pleas of guilty to indecently treating a child under 16 years of age, aggravated because the child in each case was under the age of 12 years.  Neither sentence involves the respondent's having to serve a period of imprisonment.

The first count involved the then 34 year old respondent interfering with his 10 year old niece.  The respondent entered the bedroom of the niece at his house in which she was to sleep with his children.  She pretended to be asleep.  The respondent pressed his thumb hard against her vaginal area outside her shorts.  This occurred three times.  He had his other hand at the time around her buttocks.  Later that night he stroked her buttocks again outside her shorts.

No complaint was made to the police until after the complainant in this count learnt of the following second incident which occurred six or seven years later.  That second count involved a nine year old daughter of a friend of the respondent.  The complainant was staying at the respondent's house.  At night the respondent entered her bedroom, unfastened her jumpsuit and pulled down her underpants.  Then he inserted his finger into her vagina to some extent although not fully.  She experienced pain. 

The learned Judge sentenced the respondent to a fully suspended four month term for the first offence and a 12 months' intensive correction order in respect of the second.  The respondent was 41 years old when sentenced, had no prior criminal history and had voluntarily sought psychological counselling.  He had been excommunicated by his church which had meant a lot to him.

The first complainant, his niece, had become reconciled with him.  He had a good work history, was employed and enjoyed family support.  He cooperated with the authorities and pleaded guilty upon an indictment presented ex officio.  Those were the circumstances which in the view of the learned Judge aggregated to amount to exceptional circumstances warranting not actually imprisoning the respondent.  The Attorney-General appeals.

This Court has made it very clear that persons who commit offences like these, although pleading guilty and although of previously unblemished character, will usually have to serve a term of actual imprisonment.  That is what the community wants and reasonably wants.  See Larson, CA373/98; Pham, CA435/95; Lashford, CA463/95; and M, CA251/99.  The issue now is whether the circumstances which saved the respondent from actual imprisonment here were exceptional in the relevant sense.

Mr Weston, who appeared for the Attorney-General, pointed out that pleas of guilty and the cooperation with the authorities were not themselves exceptional, they not infrequently occur and may be acknowledged of course for example by a recommendation as to parole. 

Neither, it may be conceded, is it uncommon that such offenders have no prior convictions.  Likewise, such offenders frequently have good work histories and are otherwise respected members of the community.  It is unusual to find an offender who has been authoritatively excluded by his church and similarly it is probably not common that such offenders will have voluntarily sought professional help. 

The circumstances relied on by the Judge as putting the case into the exceptional category must of course be weighed against there being two offences of a similar nature committed by the substantially older respondent on two vulnerable extremely young girls effectively under his care.  While one of them may have been reconciled to him - that is, his niece - the other apparently remained traumatised as at the time of sentencing which occurred nine months after the offence committed upon her.  It must also be said that the gravity of the second count is increased by the circumstance of the digital penetration of the vagina.

The signal the Court sends as to the unacceptability of this sort of behaviour cannot be dulled by subtle debate as to what does or does not amount to exceptional circumstances.  But taking a broad commonsense approach to this matter, recognising reasonable community expectations and acknowledging the gravity of this particular offending I do nevertheless consider that the aggregation of mitigating circumstances just listed was here sufficiently exceptional to have justified the unusual course followed by the learned Judge.  It is, I should say, in my view, a marginal or borderline case and that character should increase this Court's circumspection about interfering on an Attorney's appeal.

As pointed out also by Mr Moynihan who appeared for the respondent the penalties imposed here do gain some support from Gardiner, CA10/94 and Clark, CA44/94 although in my view there may have been some strengthening of the Court's response to crime of this nature since those cases.  In any event, I am not satisfied to the requisite degree that this court would be warranted now on an Attorney's appeal in interfering with the penalties which were imposed below.  I would dismiss the appeal.

DAVIES JA:  I agree.

THOMAS JA:  I agree also.

THE CHIEF JUSTICE:  The appeal is dismissed.