R v The Queen

[1998] QCA 132

[1998] QCA 132

COURT OF APPEAL
PINCUS JA
McPHERSON JA

MUIR J

CA No 406 of 1997
THE QUEEN
v.

R

BRISBANE
..DATE 16/04/98
160498 T9/SJ3 M/T COA77/98
PINCUS JA: The applicant was convicted in the District Court on
23 October 1997 after a trial on two counts of indecent
treatment of a child under 12 years of age in his care. He was
sentenced on count 1 to three and a half years imprisonment and
on count 2 to 15 months imprisonment. Each offence as it
appears in the indictment was "[t]hat on a date unknown between
the 1st day of August 1994 and the 30th day of November 1995 at
Bundaberg in the State of Queensland you unlawfully and
indecently dealt with one [ - her name is then given -] a child
under the age of 12 years [a]nd at the time aforesaid you had
the said [child] in your care".
The applicant asserts that the penalty imposed is excessive.
The applicant has no prior convictions; he is 34 years of age.
What he did was to blindfold the complainant, who was five or
six years of age at the time of the offence, on the pretext of
playing a game with her. Supposedly as part of the game, an
object was inserted into the complainant's mouth and she had to
guess what it was. In fact, it was the applicant's penis and he
ultimately ejaculated into the complainant's mouth.
Following that he inserted his finger into her vagina. The
applicant was a family friend and there is in the record a
victim impact statement as to the effect on the child of this
incident, which is said to have been adverse.

The learned sentencing judge said in his reasons that on an earlier occasion there had been a complaint of the child being indecently touched by the applicant. His Honour thought that to be relevant as putting the applicant on notice of behaving in future with an increased level of care. It does not appear to 160498 T9/SJ3 M/T COA77/98

me, with respect, that care has much to do with the matter. The offences with which we are concerned were not due to any lack of care, but were deliberate. His Honour also referred to the fact that there had been an affectionate relationship between the complainant and the applicant. It appears that the applicant's wife and the complainant's mother were cousins. His Honour commented adversely upon the conduct of the defence which he described as "boots and all", noted that the defence included attacks on the complainant's family's behaviour and concluded that there was little remorse.

The applicant's behaviour is certainly not in any way commendable and the offences in question were ones which amply deserved a prison sentence, despite the applicant's previous good record. The difficulty is that the decisions of this Court which have been located by the applicant's counsel, the respondent's counsel and the Court itself, simply do not support a sentence at this level for conduct of the kind in question.

A decision to which Mr Chowdhury, for the respondent, particularly referred as giving guidance is B (C.A. No. 360 of 1994, 26 October 1994). There, the complainant was 11 and the applicant's stepdaughter. There were five counts of indecent dealing and three of the applicant's permitting himself to be indecently dealt with. The offences, without going into detail, were of comparable seriousness to the present, but more in number. A sentence of three and a half years imprisonment was imposed, as here. There was a recommendation for release on parole after serving 15 months.

The applicant had pleaded guilty. The sentence was set aside on
160498 T9/SJ3 M/T COA77/98
appeal, and in lieu a sentence of two and a half years
imprisonment with a parole recommendation after one year was
substituted.
Other cases which were discussed included Scott (C.A. No. 24 of
1994, 18 April 1994), Mitchell (C.A. No. 331 of 1993,
9 December 1993), and Kuhl (C.A. No. 369 of 1992, 5 February
1993). It was suggested during the course of a discussion, and
appears to me to be correct, that the result of Kuhl is perhaps

not representative of the general pattern of sentencing.

In the applicant's submissions reference was made to Attorney's
appeals which also in my view tend to support the contention
that the sentence imposed is beyond the range, a matter which
seems not to be disputed. I refer to Grey
(C.A. No. 477 of 1994, 5 May 1995) and D (C.A. No. 146 of 1993,
13 July 1993). D was a comparable case, as it seems to me, in
which there was a sentence of 18 months imprisonment imposed by
this Court. The circumstances were comparable, but not quite as
bad.

The suggestion which was made from the Bar table was that the proper range of sentence for the more serious offence was between two and two and a half years. That appears to me to be correct and I would in the circumstances of this case impose a sentence in that range.

In my view, the application should be granted. The appeal with respect to count 1 allowed and in lieu of the sentence of three 160498 T9/SJ3 M/T COA77/98

and a half years imprisonment imposed below on count 1, I would

impose a sentence of two years imprisonment.

McPHERSON JA: I agree.

MUIR J: I agree.

PINCUS JA: That will be the Court's order.

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