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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] QCA 123
Decision Date: 10/04/2000

CaseChat Overview and Summary

The Court of Appeal of Queensland heard an appeal by the Attorney-General against sentences imposed on LA, who pleaded guilty to indecently treating two children under the age of 12. The first offence involved the respondent pressing his thumb against his 10-year-old niece's vaginal area outside her shorts while she pretended to be asleep. The second offence involved the respondent inserting his finger into a nine-year-old girl's vagina to some extent, causing her pain. The trial judge sentenced LA to a fully suspended four-month term for the first offence and a 12-month intensive correction order for the second. The Attorney-General argued that the sentences were too lenient and did not reflect the gravity of the offences.
The court considered whether the circumstances that saved LA from actual imprisonment were exceptional. The court acknowledged that pleas of guilty, cooperation with the authorities, and a lack of prior convictions were not exceptional. However, the court noted that it was unusual for offenders in such cases to have been excommunicated by their church and to have voluntarily sought professional help. The court also noted that one of the victims had become reconciled with LA. The court found that the aggregation of mitigating circumstances was sufficiently exceptional to justify the unusual course followed by the trial judge.
The court dismissed the appeal, finding that the penalties imposed were not unreasonable and did not dull the signal sent by the court as to the unacceptability of this sort of behaviour. The court noted that the case was marginal or borderline and that character should increase the court's circumspection about interfering on an Attorney's appeal. The appeal was dismissed, and the sentences imposed by the trial judge were upheld.

Orders