R v M

[1995] QCA 394

[1995] QCA 394

COURT OF APPEAL

MACROSSAN CJ
McPHERSON JA
HELMAN J

CA No 225 of 1995

THE QUEEN

v

M  Applicant

BRISBANE

DATE 27/07/95

JUDGMENT

HELMAN J:  On 26 May, 1995 in the Brisbane District Court the applicant pleaded guilty to seven counts of indecent treatment of a child under 16 alleged against him on an ex officio indictment.  In each case two circumstances of aggravation were alleged: that the child was under the age of 12 years, and that the child was for the time being under the applicant's care.  The maximum penalty to which he was liable for each offence was imprisonment for 10 years.

The learned judge before whom the applicant came imposed a sentence of imprisonment for three years on each count.  His Honour ordered that the sentences be served concurrently and recommended that the applicant be eligible for and be considered for parole after 12 months.  There was a further direction that a copy of a report dated 5 May 1995 concerning the applicant by Dr Peter Mulholland, psychiatrist, which had been put before his Honour, be sent to the prison authorities for attention.  The applicant applies for leave to appeal against the sentences imposed upon him on the ground that they are manifestly excessive.

The offences were committed between 22 June and 25 July last year.  The applicant was then 39 years old and the child, his stepdaughter, was eight.  The child was residing with her mother, whom the applicant married in 1992, and the applicant.

The applicant committed each of the offences when his wife was absent from the family home.  The first three counts arise out of an incident in which he exposed the child to an indecent video tape (count 1), touched and licked her genitals (count 2), and she touched and sucked his penis (count 3).  Counts 4, 5, and 6 arise out of another incident in which he again exposed the child to an indecent video tape (count 4), touched and sucked her genitals and touched her in the area of her anus (count 5), and she sucked his penis (count 6); on that occasion his erect penis touched her crutch area and he ejaculated over her body.  Count 7 arises out of an incident in which the applicant took his clothes off and masturbated in front of the child, again ejaculating over her body.

The child told her mother what had happened after the mother questioned her after having noticed unusual behaviour by the child.  She confronted the applicant who confessed to what he had done.  The police were called and he again confessed, to them.

The applicant was depressed when he committed these offences.  Soon after his confessions he attempted suicide.  He sought and has received psychiatric counselling.  He made it known at the earliest opportunity that he intended pleading guilty and agreed to the presentation of an ex officio indictment.

He has worked as a truck driver and labourer.  He was married once before he married the child's mother.  He has been convicted of offences twice before his convictions for these offences: in 1982 in the Brisbane Magistrates Court, of stealing, for which he was placed on probation for two years; and in 1993 in the Beenleigh Magistrates Court, of being in possession of a weapon when he did not have a licence, for which he was fined $200.

It was submitted on behalf of the applicant that the learned sentencing judge gave insufficient weight to the rehabilitation of the applicant and did not consider all of the available sentencing options.

It seems clear that the applicant is remorseful and was depressed when he did these things. He was co-operative with the prosecuting authorities and has spared the child the ordeal of giving evidence. These were, however, serious offences which were committed in gross disregard of the trust that had been reposed in him. One of the important purposes for which a sentence may be imposed on an offender is, as section 9(1)(d) of the Penalties and Sentences Act 1992 provides, to make it clear that the community acting through the sentencing Court does not approve of the sort of conduct in which the offender is involved. That is a particularly important purpose to bear in mind in a case like this, as no doubt his Honour did.

All things considered, I conclude that the sentences imposed by his Honour properly reflect the gravity of the offences and were within the accepted range that has been established for such cases in the past.  His Honour's recommendation concerning parole reflects the applicant's remorse and the other matters I have mentioned that called for some tempering of the sentences.

For those reasons I do not think the sentences were excessive, at all.  The application should be refused.

THE CHIEF JUSTICE:  The circumstances have been outlined by Mr Justice Helman.  I consider that it is possible to feel some regret that the matter was not treated below in a way which would have ensured arranging continuing treatment and counselling on an ongoing basis for this man.  It would have been possible to treat him differently in sentencing him and it could have been appropriate to deal with him on some different basis, having in mind the personal factors that were present here.

However, it cannot, I agree, be regarded as an excessive sentence that some custodial term was imposed and in my opinion the term that was imposed accompanied by the recommendation cannot be described as manifestly excessive, so I would agree that the appeal must be dismissed.

McPHERSON J:  I agree with the reasons that have been given by Mr Justice Helman and with the order he proposed.

THE CHIEF JUSTICE:  The order of the Court is that the application for leave to appeal against sentence is refused.  Adjourn the Court to 10.15 tomorrow.