R v Libl and Attorney-General of Queensland

[1996] QCA 63

IN THE COURT OF APPEAL	[1996] QCA 063
SUPREME COURT OF QUEENSLAND	C.A. No. 22 of 1996
Brisbane
Before	Fitzgerald P. McPherson J.A. Helman J.
[A-G v. Libl]

T H E Q U E E N

v.

LADISLAVE WALTER LIBL Respondent

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND Appellant

FITZGERALD P.
MCPHERSON J.A.

HELMAN J.

Judgment delivered 22/03/1996

REASONS FOR JUDGMENT - THE COURT

APPEAL AGAINST SENTENCE ALLOWED.
SUSPENDED SENTENCE IMPOSED BELOW SET ASIDE AND IN LIEU THEREOF A
SENTENCE OF ONE AND A HALF YEARS’ IMPRISONMENT WITH A
RECOMMENDATION FOR CONSIDERATION FOR PAROLE AFTER SIX MONTHS BE
SUBSTITUTED.
BENCH WARRANT TO ISSUE FOR THE ARREST OF THE RESPONDENT TO LIE IN

THE REGISTRY FOR 7 DAYS.

CATCHWORDS:	SENTENCE - indecent dealings with circumstances of aggravation (x2) - Attorney-General’s appeal concerning the inadequacy of the sentence of 2½ years’ imprisonment to be wholly suspended for 4 years - complainant: physically and mentally handicapped- respondent: taxi driver who regularly attended upon the complainant when in need of transport services - gross breach of trust - respondent’s wife of poor mental health and other personal circumstances in the respondent’s favour given weight
Counsel:	J. Hunter for the Appellant R. Collins for the Respondent
Solicitors:	Queensland Director of Public Prosecutions for the Appellant Legal Aid Office for the Respondent
Date(s) of Hearing:	14 March 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 22/03/1996

This is an appeal by the Attorney General against the inadequacy of the sentence imposed on the respondent in the District Court at Brisbane on 9 January 1996. The respondent pleaded guilty to two offences of indecent assault with circumstances of aggravation, committed on 14 April 1995 and 22 April 1995. The respondent was sentenced to a total of two and a half years’ imprisonment wholly suspended for four years.

The one complainant was the victim of the abuse on both occasions. The complainant was a 33 year old woman who suffered from quadriplegia, cerebral palsy and controlled epilepsy. She was also described as being at the lower end of the normal intellectual range. The complainant resided at a care home for disabled adults at Fig Tree Pocket.

On occasions at the request of the care home the Yellow Taxi company sent taxis to the home to transport residents in their destination. The respondent was a 51 year old taxi driver in the employ of the Yellow Taxi company who usually attended upon the complainant when she was in need of transportation services.

At the time of the first offence on 14 April, the complainant was at the home in a wheelchair when the respondent entered her room. The respondent, without saying anything, touched her breast and pulled up her skirt. It is submitted that she did not know what to do, she did not say anything but “wished that he would go away”. The respondent said “Could I see your pussy?”. When the complainant made no reply, the respondent pulled her panties to one side and inserted two fingers into her vagina, leaving them there motionless for what seemed to the complainant like a long time. After one of the complainant’s care providers came into the room the respondent left. The complainant told no-one what happened because she felt “horrible”.

The second occasion involved an incident in a taxi. The complainant and another man were seated in the taxi, with the complainant sitting directly behind the other passenger, so she was out of his view. When assisting the complainant into the taxi the respondent asked if she would “like to stop somewhere”. The respondent then got into the taxi beside the complainant, closed the door and again assaulted her in a similar fashion to that which occurred on the first occasion. The respondent squeezed the complainant’s breast which she said “hurt a lot” and seemed to go on for a long time. The respondent then inserted two fingers into her vagina and moved them in and out. At the same time, he bit her on the neck, causing her pain and leaving a bruise that was visible to a doctor who examined her later that day. When the respondent moved his fingers, the complainant said “Don’t do that anymore. I don’t like you doing that”. The respondent was then driven to her drama class, where a complaint was made and the matter reported.

The complainant has subsequently suffered psychologically from the assaults. Dr Warren Carter, who examined the complainant after the assaults reported: “At the time [of the assaults] this caused her considerable distress and anxiety, but over the past seven months she has coped with the incident in a very responsible and mature manner. She had nightmares about the incident for some months, but these have now subsided, although she continues to have disturbing flash backs and periods of mental preoccupation.” It was also reported by Dr Carter that : “In the long term, Julie should have no significant mental scars from the incident, other than an almost permanent distressing association between taxis and her assault....”. The doctor also observed that the complainant “...felt sorry for her assailant, and not angry towards him .... She bears him remarkably little malice, which shows how well she understands the situation.” Mrs Marcia Gardner, the complainant’s sister, states that her sister has suffered psychologically as a result of the assaults and that she has noticed “distinct personality changes”.

The appellant has relied on factors such as the repetition of the respondent’s conduct and the gross breach of trust by the respondent in relation to a disabled woman who was disadvantaged physically and mentally to support this appeal. It was submitted that the respondent’s personal circumstances (which are dealt with below) are not sufficiently exceptional to warrant wholly suspending the sentence.

The respondent at trial raised certain factors pertaining to his personal life upon which the trial judge placed weight in determining the appropriate sentence, which again have been raised in this appeal. Initially, he had come to Australia in the post-war years. His problems include his wife’s poor mental state, civil litigation to which he was party, apparently resulting in his virtual financial ruin and nasty behaviour and harassment from a neighbour. Other matters relied on by the respondent, and which were considered by the trial judge in suspending the respondent’s sentence, are that there was no physical injury to the complainant and her emotional stress had been handled in a very mature way, the offences were out of character and occurred at a time when the respondent had been under particular stress, he had resigned from his employment as a taxi driver, he did not require the complainant to come to court on any occasion and his early plea of guilty. It was also submitted that it was unlikely that the respondent would re-offend, “... he had a good history despite a difficult life”. While the brief period between the two attacks might cast some shadow on the respondent’s remorse, Dr. Shyuan Jiun Loh who has been seeing the respondent for a number of years, says that, since the second incident, the respondent has been regularly examined and treated for “... major depression and associated symptoms since the allegations, the respondent experiences increased tiredness, dejection, loss of motivation, loss of libido, and persistent insomnia.” Dr. Loh seemed to have no doubt but that the respondent is sincerely remorseful.

At the trial his Honour, after considering all the mitigating circumstances surrounding the assaults, said in his sentencing remarks “Now all of this would lead me to recommend parole at an early date but there is one factor that I think I must take into account and lead me to suspend your sentence fully and that is this: I am anxious that your wife, who is in obviously poor mental health, should suffer any more than she undoubtedly already has. The medical evidence is that she cannot really cope on her own. I therefore sentence you to two and a half years imprisonment but suspend it immediately for four years.”

In our opinion the approach taken by the sentencing judge was too lenient in favour of the respondent and does not adequately punish him for the serious crime committed, nor is it sufficient in our view to deter others from committing similar such offences. The respondent’s wife will undoubtedly suffer further if a custodial sentence is imposed. However, generally speaking, sexual molestation of helpless or disabled persons, as in the case of children, should attract a custodial sentence.

Extending as much leniency as we think feasible and giving full weight to the position of the respondent’s wife, we order that the appeal be allowed, that the suspended sentence imposed below be set aside and in lieu thereof a sentence of one and a half years’ imprisonment with a recommendation for consideration for parole after six months be substituted.