R v Marsh

[1993] QCA 452

IN THE COURT OF APPEAL [1993] QCA 452

SUPREME COURT OF QUEENSLAND

C.A. No. 351 of 1993

Brisbane

[R v. Marsh]

T H E Q U E E N
v.
COLIN DOUGLAS MARSH

(Applicant)

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The President
Pincus J.A.

Mackenzie J.

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Judgment delivered 09/11/93
Judgment of the Court
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED WITH RESPECT TO COUNT 3, PERMITTING CARNAL KNOWLEDGE BY ANAL INTERCOURSE. SENTENCE ON THAT COUNT OF 5 YEARS SET ASIDE, SUBSTITUTE THEREFOR A SENTENCE OF THREE YEARS AND SIX MONTHS IMPRISONMENT WITH A RECOMMENDATION APPLICANT BE CONSIDERED FOR RELEASE ON PAROLE AFTER SERVING ONE YEAR OF HIS SENTENCE. THE SENTENCES IMPOSED BELOW IN RESPECT OF THE OTHER 2 OFFENCES ARE CONFIRMED.

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CATCHWORDS: CRIMINAL LAW - indecent dealing - permitting child to have carnal knowledge by anal intercourse - sentence of 5 years imposed with respect to carnal knowledge - whether manifestly excessive - circumstances to be taken into account when considering sentence.

R v. Hackett C.A. No. 144 of 1993.

Counsel:	Mr T Carmody for the Applicant. Mr R J Hunter for the Crown.
Solicitors:	Legal Aid Office for the Applicant. Department of Public Prosecutions for the Crown.

Hearing Date: 01/11/93
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 351 of 1993

Brisbane

Before:  The President
Pincus J.A.
Mackenzie J.

[R v. Marsh]

T H E Q U E E N
v.
COLIN DOUGLAS MARSH

(Applicant)

JUDGMENT OF THE COURT

Delivered 09/11/93

This is an application for leave to appeal against sentence. The applicant pleaded guilty in the District Court to a charge of having committed three sexual offences with a boy aged 12. The offences of which the applicant was convicted were indecent dealing with a child under the age of 16 years, permitting himself to be indecently dealt with by such a child, and permitting the child to have carnal knowledge of him by anal intercourse. The first two offences were charged under s. 210 of the Code; the maximum penalty is 5 years imprisonment for each. The third offence was charged under s. 208 of the Code and the maximum penalty is 14 years imprisonment. The applicant was sentenced to 2 years imprisonment in respect of each of the first two offences and 5 years in respect of the third; there was a recommendation that the applicant be considered for release on parole after having served 1 year and 9 months. The submissions made by Mr Carmody for the applicant concentrated on the third offence, which appears to be one of an unusual character; we were not referred to any case in which a sentence has been imposed for that offence.

The child was a member of a household which lived next door to the applicant, a man aged 48, married with children. The two families knew each other well. The way in which the offences were committed was as follows. When the boy was at the applicant's premises he was invited by the applicant to look in a garden shed. The boy walked into the shed, where the applicant held him by the shoulders and kissed him on the mouth and tried to put his tongue into the boy's mouth; that incident was not the subject of any of the charges. At the applicant's direction the boy pulled his penis out from the bottom of one leg of his shorts; the applicant then knelt down, took hold of the boy's hips and briefly sucked on the boy's penis, the boy trying to push the applicant away. Then the applicant took his own penis out and pulled the boy down into a kneeling position and made the boy suck the applicant's penis, briefly. The applicant then let go of the boy, who got up and began to walk out of the shed when the applicant pulled the boy's pants down and tried to put his penis into the boy's bottom; the boy felt it touch him, but he moved forward and away and pulled up his trousers. The incident last described was not the subject of any charge.

Lastly, the applicant took his pants and underpants down, turned around with his back to the boy and bent over, inviting the boy to "stick it up me". The boy complied, putting his erect penis about a centimetre into the applicant's anus and then pulling it out. At this stage the applicant's wife came to the doorway of the shed. The sexual activity stopped and it appears the police were called. The whole series of incidents was according to the boy's account over in a very short time.

According to counsel for the applicant here and below, he was instructed that there was only one previous conviction, one charge of wilful exposure, in 1979; the record however includes four charges of wilful exposure on various dates in June 1979; that difference is probably of no real significance. The applicant was placed on probation for 2 years, in respect of the wilful exposure matter or matters.

The Court had a psychological report relating to the applicant before it and a psychiatric report relating to the boy. According to the former, the applicant was placed into foster care when aged 18 months because his mother had alcohol problems and could not care for any of her children. On two occasions during his childhood he was apparently placed in an institution because his foster mother was ill; however, he was on good terms with his foster mother. He was in various employments until 1989 when he was retrenched; he found himself unable to obtain another permanent job. The applicant said that he had a satisfactory marriage until about four years ago when differences arose because of sexual problems. It appears that as a result of the offences the marriage has broken up and he has ceased to have access to his two youngest children. The psychologist recommended that the applicant enter a treatment programme.

The psychiatrist who reported on the boy's condition was unfortunately unable, it appears, to discuss the matter in detail with the boy:

"[The boy] was extremely reluctant to talk with me about the events and about his emotional state. [The boy] denied any emotional upset or the presence of any psychological or psychiatric symptoms".

The boy's mother told the psychiatrist, some months after the offences were committed, that her son had played truant from school for a three day period and had begun sleeping in her bed.

The psychiatrist expressed the opinion, apparently based on the boy's mother's account, that his behaviour had deteriorated in a number of ways and he had been placed on anti-depressants.

It is to be noted, however, that the psychiatrist had previously seen the boy in 1990, before the offences were committed. Apparently the boy then had difficulty with his school work - "specific learning and cognitive disorders", to use the psychiatrist's language. The doctor was of opinion that there was "increasing evidence that [the boy] has seriously suffered psychologically and emotionally as a result of the abuse".

Mr Carmody relied upon the judge's sentencing remarks, particularly his Honour's treatment of the case of Hackett (C.A. No. 144 of 1993, 23 June 1993), in support of a submission that the judge took a wrong approach. His Honour noted that the applicant was not interviewed by the police, but pleaded guilty at the committal stage. His Honour also said that this Court had, in the case of Hackett "laid down the law with regard to sentencing guidelines for sexual offences involving children...". After referring to the psychiatric and psychological reports, the judge said he was prepared to accept that the applicant was contrite, that he had suffered considerable mental anguish, had received psychiatric treatment for depression and that his marriage had "broken up over this and you have estranged yourself from your adult children". His Honour described the applicant as "genuinely contrite". The judge said that "having regard to the strictures laid down in the case of Hackett and to the facts of this case, I am of the opinion that condign punishment is..." that referred to above.

It is clear, and it was not disputed by the Crown here, that Hackett, in which this Court imposed a sentence of 4 years, was a worse case than the present. That was an Attorney- General's appeal against the imposition of a 4 year suspended sentence on a 28 year old man who had interfered sexually with a child not yet two years of age, by some means which was not able to be proved. There was a laceration of the child's vagina and perineum and a small laceration of the rectum, caused, in the doctor's opinion, by a deliberate and forceful insertion of an object in the vagina. The wounds were satisfactorily repaired.

A psychiatrist expressed the view, and the Court accepted, that there was "sexualised aggression toward the child which seemed to represent a displacement of his unexpressed rage towards his ex-girlfriend". In the reasons of this Court in Hackett there is to be found a schedule of 13 past sentences, 11 being for multiple indecent dealing convictions; another, a charge of indecent assault and one of indecent dealing; and lastly, a charge of maintaining a sexual relationship with a child. The Court remarked:

"The circumstances revealed in those cases vary considerably. Most of them involved very intimate sexual contact short of penetration and in most there was an absence of physical injury".

Of those 13 cases, 10 produced custodial sentences and 3 non-custodial sentences; the former ranged from 18 months to 4 years. The Court said that the "average effective sentence" was just under 2 years imprisonment. After referring to the necessity for deterrence the Court remarked:

"The review of the cases would seem to indicate that whilst it is not impossible for a non-custodial sentence to be imposed, very special circumstances will be needed before such a result may occur...The most common recent range in cases of this kind is between 2 and 3 years imprisonment".

A little later the Court added:

"It is necessary to sound a warning that the range in the above cases may not be sufficiently high, and it may prove necessary to increase it. It would however be unfair to the respondent to make the present matter a test case for this purpose. It is however desirable that we give notice of the need for a harder line to be taken on these offences."

The sentences imposed in Hackett, by this Court were 4 years for the indecent assault involving penetration and a concurrent sentence of 6 months for unlawful assault occasioning bodily harm.

Plainly, the gravity of sexual offences against young children may range from relatively minor to extremely serious. The circumstances can vary greatly and the Court must take into account in each case the age of the offender and of the victim, the nature of the offender's criminal history, precisely what was done by the offender to the victim, whether the offence or offences appear to have been due to a brief loss of control or rather constituted a persistent course of wrong-doing and perhaps many other matters.

In the present case, the aspects which most favour the applicant's case are that he has reached middle-age having only a minor offence on his record; that he has, it appears, attempted to lead a respectable existence despite what seems to be a propensity to behave in an abnormal way sexually; that this series of incidents was very brief; that the boy suffered no physical harm, and that the applicant's relationship with his own family has been destroyed as a result of the incidents. As against that, there is a substantial need for deterrence, as is pointed out in Hackett; then there has to be taken into account the psychiatric opinion, based upon the boy's mother's observations, as to the significant degree of psychological damage suffered.

The offence of having carnal knowledge of a child by anal intercourse appears to us to be inherently more serious than that of permitting a child to have carnal knowledge of the offender by anal intercourse, although s. 208 prescribes the same maximum penalty for each.

In our opinion, in all the circumstances the sentence was beyond the range which was proper,considering the factors favouring leniency. If a 5 year sentence was appropriate to these circumstances, then presumably a sentence of say, 7 years, would have been required if the applicant had not been remorseful, had put the boy through the trauma of a trial rather than pleading guilty, and if his family relationships had not been affected by his offences. Further, we cannot see that these offences merited a higher penalty than those dealt with in Hackett, where there was significant physical injury.

The application for leave to appeal will be granted, and the appeal allowed with respect to the offence of permitting carnal knowledge by anal intercourse. The sentence for that offence imposed below will be reduced to 3 years and 6 months and there will be a recommendation that the applicant be considered for release on parole after having served 1 year of his sentence. The sentences imposed in respect of the other two offences, namely 2 years imprisonment each, are confirmed.