R v O

[2001] QCA 40

[2001] QCA 40

COURT OF APPEAL

de JERSEY CJ
DAVIES JA
MULLINS J

CA No 310 of 2000

THE QUEEN

v.

O.

BRISBANE

..DATE 15/02/2001

JUDGMENT

THE CHIEF JUSTICE:  I will invite Justice Davies to deliver the first judgment.

DAVIES JA:  The applicant pleaded guilty in the District Court on 30 October last to the offence of indecent dealing with a child under the age of 16.  He was sentenced to 18 months' imprisonment with a recommendation that he be eligible for consideration for release on parole after serving six months of that sentence.  He seeks leave to appeal against that sentence. 

The offence involved a single incident.  The complainant was the applicant's 13-year-old stepdaughter, who was at the relevant time residing with her maternal grandmother.  On the day in question she visited the home in which the applicant resided with his wife, the complainant's mother, and went to her mother's bed to have a sleep.  She opened her eyes to find the applicant standing beside her. 

He was dressed in shorts and a t-shirt.  He then, without her consent, lay on top of her, exposed his penis, pushed her legs apart and rubbed his penis against the outside of her vagina, simulating sexual intercourse.  He ejaculated on her thigh and then left the bedroom.  She did not attempt to resist any of this because, as she said, she was scared.  And consequently no force was used except in the sense that he performed those acts without her consent. 

The complainant later complained to a school counsellor, who reported the matter to the police, who in turn interviewed the applicant.  He made admissions to the police.  The matter then proceeded by way of full-hand up brief at committal and he entered a plea of guilty. 

Not unexpectedly, the complainant has been depressed by what happened and, according to her grandmother, continues to be withdrawn.  Nevertheless, it appears from the rather short evidence on this aspect of the matter that her condition is improving. 

The applicant is 31 years of age.  He was born on 22 May 1969.  He has a minor criminal history of dishonesty offences in 1986 and 1987, none of which were of sufficient seriousness to warrant a sentence of imprisonment.  On each occasion he was fined.  These are only of minor relevance to the appropriateness of the sentence which should have been imposed here. 

There can be no doubt that an offence of this kind involving, as it did, simulated sexual intercourse to the point of ejaculation by an adult on a 13-year-old girl in whose care she was, was a serious one.  Nevertheless, it was submitted by Mr Moynihan for the applicant that it was towards the lower end of seriousness of offences of this kind; that is, I take him to mean, involving an adult and a young child in his care.

There is substance in his submissions in the sense that there was no gratuitous violence or threat of violence, either before or afterwards, to ensure silence.  There was no actual penetration and there was only one single act.  It is also true that substantial credit should be given in imposing the sentence for the applicant's early cooperation and plea of guilty, thereby saving time and expense and, more importantly, saving the child the trauma and anxiety of giving evidence.

A considerable number of authorities were given to this Court by both sides.  There are, unfortunately, a very large number of comparable authorities.  It is, however, difficult to derive a great deal of help from such of those as are Attorney's appeals.  As has been said on many occasions, there are factors relevant to Attorney's appeals which are not relevant to appeals by offenders, particularly where the appeal is against a non-custodial sentence and the respondent has been released into the community and allowed to pursue his normal life and occupation.

Mr Moynihan submitted that the learned sentencing Judge erred in not imposing a wholly suspended sentence.  He pointed to the factors to which I have referred.  However, in my opinion, the acts which were performed in this case, that is the offence as a whole, were of sufficient seriousness to justify a period of actual custody.

Those cases which involve appeals by offenders - Denboon
CA No 211 of 1993; Kelk CA No 161 of 1994; and Pham
CA No 435 of 1995 - show that, in my opinion, the sentence imposed here was a high one, but not when taken as a whole, in my opinion, outside the appropriate range.  Accordingly, as I do not think his Honour erred in principle or that the sentence was outside the appropriate range, I would refuse the application.

THE CHIEF JUSTICE:  I agree.

MULLINS J:  I agree.

THE CHIEF JUSTICE:  The application is refused.

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