R v Possum

[1992] QCA 332

COURT OF APPEAL [1992] QCA 332

MACROSSAN CJ
PINCUS JA

MOYNIHAN J

CA No 221 of 1992

THE QUEEN

v.

LESTERIDGE FITZEY POSSUM	Applicant
BRISBANE ..DATE 08/09/92
JUDGMENT

080992
THE CHIEF JUSTICE: The applicant pleaded guilty to a charge of having unlawful carnal
knowledge by anal intercourse of a boy under the age of 12 years. The boy in fact was aged
about 3 ½ years at the time. The maximum penalty imposable by way of imprisonment under
the Code was therefore a life term. The learned sentencing Judge sentenced the applicant to 8
years imprisonment but added a recommendation that he be considered for parole after he had
served 2 years of that sentence.

He also recommended to the authorities that they provide to the applicant whilst he was in custody such psychiatric and psychological treatment as might seem necessary. The applicant had been some 8 or 9 months in custody in circumstances where it is suggested that it was attributable to the commission of this offence, that is, custody prior to being dealt with by the learned sentencing Judge.

A number of matters were taken into account by the Judge. In his sentencing remarks, having noted the age of the boy concerned, he acknowledged the possibility that in the community where the applicant lived the type of activity that he was called upon to deal with may not have been viewed with the same abhorrence as it would be in other areas of society. The judge said he would take into account differing perceptions in community attitudes when he sentenced.

The applicant made the consistent claim that the young boy had in effect asked to be dealt with in the way in which the applicant acted but the Judge did not accept that that was so. The judge considered that he should sentence in a way which reflected the seriousness of the offence and the general abhorrence of the behaviour involved. In addition, and the Judge noted this, the applicant had been sentenced in April of 1991 for having, in an aggravated way, assaulted a female. He was placed on 12 months probation for that action and then within about 2 months he committed the present offence. That is, the probation acted as no deterrent whatsoever.

The Judge below thought that the best way to proceed was to impose a head sentence recognising the seriousness of the circumstances but make a recommendation for early release on parole because of the applicant’s youth, he being a 19 year old, and because of the other matters which he referred to and which I have in part outlined. He specifically said that he took into account the months spent in custody.

He then responded to his sentencing obligation by imposing, as I have said, a term of imprisonment of 8 years making the recommendation for release. It could be described as quite an early release, that is, it was to apply after the expiration of 2 years. The Judge took into account the circumstances of the applicant and the community where he lived and the other factors involved in the commission of the offence. The need for a deterrent in situations like the present always remains. In my opinion it cannot be said that the sentence imposed was excessive or that it calls for interference by this Court and I would dismiss the application.

PINCUS JA: I agree with the reasons of the Chief Justice and would add only that, having regard to the sentences to which Mr Devereaux has drawn our attention and the other circumstances mentioned by counsel, the sentence does seem a fairly heavy one. Nevertheless, it does not seem to me to be one with which we should interfere and I therefore agree with the orders proposed by the Chief Justice.

MOYNIHAN J: I agree with what has been said and the orders proposed.

THE CHIEF JUSTICE: The order of the Court will then be that the application for leave is refused.