R v S

[1996] QCA 55

[1996] QCA 55

COURT OF APPEAL

PINCUS JA
DAVIES JA
McPHERSON JA

CA No 506 of 1995

THE QUEEN

v

S  Applicant

BRISBANE

DATE 26/02/96

JUDGMENT

McPHERSON JA:  Mr Justice Davies will give the first judgment.

DAVIES JA:  The applicant was convicted in the District Court at Stanthorpe on his own plea on 28 November last on five counts of indecently dealing with a girl under 12 being a lineal descendant.  The applicant is 31 years of age having been born on 3 December 1964, and the victim of his offences was his 11-year-old daughter.

The offences occurred over a period of 10 months, the last occurring only the day before the applicant's arrest.  On each of the first four occasions the applicant induced his daughter to suck his penis.  On the first of those occasions he ejaculated in front of her.  He told her not to tell anyone.  The fifth count consisted of the applicant touching his daughter on the vagina, rubbing her in that vicinity to see if she would get aroused.

The applicant told a psychologist, whose report was tendered on his behalf, that he'd touched his daughter on the vagina on other occasions.  Some of these had been, he said, inadvertent, others had been when, to use his words, he had checked his daughter's vagina because she had complained of being sore in this region.  It was on the last of these occasions that he said he was curious to see if she would get aroused and this was the subject of the fifth count.

The incidents, the subject of the five counts, plainly disturbed the child who complained to a friend and then apparently with her sister's help rang Kids' Help Line.  Her complaints finally came to her mother's attention.  It was said by counsel for the prosecution on sentence hearing that the child was apparently exhibiting at present no adverse consequences.

Nevertheless the action which she took indicates that she was disturbed by the incidents, as one would expect, and there is every chance that these will have some continuing effect on her psychological well-being.

It is unfortunate that the child's complaint and her mother's learning of it occurred before the events relating to count 5 occurred.  Mrs S’s response to the complaints was to have the applicant's mother stay with the family.  That appeared to have no restraining influence on the applicant for he then proceeded to commit the offence, the subject of count 5.

It is hard to imagine a more serious breach of trust relationship than a parent's abuse of his child.  On the other hand it must be said that within that trust relationship the offences in this case are not at the high end of the range of offences commonly seen in this Court.  There was no penetration of the child's vagina or anus, no threats were used and there was no obvious serious psychological damage to the child.

Moreover it must be said in the applicant's favour that he appears to have shown remorse for his conduct.  I should say, however, that it is often difficult, in cases in which conduct said to constitute remorse occurs after an accused person has been confronted with his offences, to say whether conduct consistent with remorse is in fact caused by remorse or by the shame and self-pity that exposure of such conduct brings.

Nevertheless the learned sentencing Judge thought that the applicant was remorseful and I would accept His Honour's finding in that respect.  He admitted his offences when first apprehended and pleaded guilty at the earliest opportunity.  He has also sought psychological help, which is commendable.

It is also said that the Department of Family Services, or someone from that Department, thought it desirable that the family should stay together.  No reason is given for that opinion, nor is the report before this Court.  In my view that can have little weight in considering the appropriateness of the sentence imposed.

The applicant has a number of previous convictions for offences involving dishonesty – 10 offences in all between 1985 and 1989.  He has not previously been sent to gaol.  The sentence imposed in this case was one of 15 months imprisonment on each count.  The argument for the applicant is that the sentencing discretion miscarried in that the applicant should not have been sent to prison.  It is suggested that the sentence which was imposed should have been wholly suspended.

Although, as has previously been remarked in this Court, it is impossible to reconcile all the sentences imposed on sexual offenders against children, even those handed down in recent years, it is difficult to see how the submissions to which I have just referred can be sustained.

This Court has indicated that other than in exceptional circumstances those who indecently assault or otherwise deal with children should be sent to gaol.  There is nothing exceptional about this case.  I can find nothing in the psychologist's report which helps him.  Indeed, although the psychologist was inclined to the view that the applicant's frankness with his children about sexual matters was beneficial, it appears to me that this so-called frankness and openness led to the commission of these offences.

Two recent decisions of this Court indicate that the sentence imposed in the present case was not outside the appropriate range.  In Phuc Minh Pham CA 435 of 1995, judgment delivered on 6 February this year, an applicant who was convicted, after a trial, of indecent dealing with a girl under the age of 12, had his sentence reduced in this Court from two years imprisonment to one year's imprisonment.

Although the applicant in that case denied his guilt and advanced a spurious defence, necessitating evidence from the complainant, the offender in that case was a young man of 24 and there was only one offence of causing the complainant to masturbate him.  No violence or threat was involved and there was no relationship of trust.

The other case is R v T CA No 433 of 1995, judgment delivered on 8 February this year.  The applicant in that case was a 48-year-old man who was convicted on four counts of indecent dealing with his niece, who was an 11-year-old girl in his care.  The indecent dealing consisted of rubbing her on the chest and vagina and on one occasion inserting his fingers in her vagina.  He was sentence to 15 months imprisonment.

The submission in that case was, as in this, that the sentence should have been suspended.  The applicant in that case had pleaded not guilty and indeed had appealed against his conviction.  There was therefore no question of remorse.

On the other hand the fact that the applicant here was the victim's father makes the offences more serious and, unlike T, the applicant here had some previous convictions, although for offences of dishonesty.

Those recent cases, though each has differences from this, show that the sentence imposed here was not outside the range of a sound sentencing discretion.  The application, in my view, should be refused.

McPHERSON JA:  I agree.  It is obviously a circumstance in favour of the applicant that he made frank and prompt admissions of his offences thereby sparing his daughter further unnecessary distress.  There is no reason at all to doubt the genuineness of his remorse in this case, but the sentencing Judge took these matters into account and, in arriving at the sentence of 15 months imprisonment, which he did, he obviously considered then, and in my view rightly so, that it was not enough to justify a conclusion that there should be no period of imprisonment at all.

This conclusion accords with the authorities to which my brother Davies has referred, and in the circumstances I can see no alternative than to dismiss the application for leave to appeal.

PINCUS JA:  I also agree.  Here one finds a case of repeated, substantial sexual activity involving the applicant's daughter.  In those circumstances one would expect the result to be as Mr Justice Davies has mentioned - a period of imprisonment.  It appears to me to be correct that the Judge not only was entitled to, but should have sent this applicant to prison, despite the ready admissions to which reference has been made.  I agree with the order proposed.

McPHERSON JA:  The application for leave to appeal against sentence is dismissed.