R v Thompson

[1992] QCA 133

COURT OF APPEAL [1992] QCA 133

MACROSSAN CJ
DAVIES JA

DERRINGTON J

CA No 95 of 1992

THE QUEEN
v.

JAMES THOMPSON

Appellant

BRISBANE

.. DATE 13/5/92

JUDGMENT

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ORDER
DAVIES JA: The applicant pleaded guilty on 17 March 1992 to
four counts of indecent dealing with a child under the age of
12 who was then in his care. The child was, in fact, a girl
under that age; in fact, of 10 or 11 years of age, and he was
her stepfather. He was on the following day sentenced to
imprisonment for a term of three years with a recommendation

that he be eligible for parole after 12 months.

The offence consisted of the applicant over a period of 12
months or so having inserted his penis in the girl's mouth and
masturbating in front of her. No substantial force was used,
though threats to hit her were apparently made, and he appears
to have seized her by the arm or held her by the arm while the
acts were performed. It was submitted to us by counsel for
the applicant, in effect, that this conduct desisted.
However, there is no clear evidence that that was the case.
No issue was taken by the applicant before us as to the
matters which the learned sentencing Judge took into account.

The applicant was 33 years of age, had no previous convictions. He had a good work record. He ran apparently a successful business and he had apparently a stable relationship with his common law wife, the mother of the complainant girl. Although he pleaded guilty he submitted the

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girl to the ordeal of committal proceedings and
cross-examination in that proceeding, although it was
submitted to us that because at that stage he had decided to
plead guilty she was not subjected to searching
cross-examination. A letter from the applicant's accountant
showed that the business carried on, which was that of an
electrical contractor, would be badly affected, and we have
been told today that it has been by his absence. That is not
surprising, and it is not surprising, of course, that there
would be serious disruption to his family and his financial
welfare during his absence. According to Dr Lynagh, a
psychologist, who saw the applicant immediately prior to his
sentence, he would benefit by obtaining counselling and he was
genuinely seeking help in that respect. But one may have some
doubt as to his genuineness having regard to the circumstances
at the time at which that counselling and report was sought.

It was accepted by counsel for the applicant that a custodial term was necessary and he suggested that 18 months to two years with a shorter non-parole period would be appropriate. The main reason for his submission appears to be the effect upon his family. An argument which as counsel for the Crown said rightly would be equally applicable in any case of this kind and although one would naturally have a great deal of sympathy for the members of his family who have been left in this situation it is, of course, the conduct of the applicant

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which has caused this situation.

A subsidiary argument which was advanced was the absence of treatment, psychological treatment in gaol, that is the treatment of the kind that Dr Lynagh has suggested. However, this is a serious offence in which deterrence is an important factor and also, of course, the emotional trauma which these events must have caused to the young girl. Comparable decisions cited to us by the Crown indicate, in my view, that the sentence which was imposed was within the appropriate range for sentences of this kind. Accordingly, I would refuse the application.

MACROSSAN CJ: I agree. There are only four offences charged and the applicant pleaded guilty to them, but there was evidence of similar conduct occurring on a total of six occasions, that is six, including the four. It was accepted it was appropriate to consider the sentence on the basis of that number of that number of episodes. I do not consider that it has been shown that the penalty imposed was out of range beyond that ordinarily imposed by this Court. The factors certainly relating to the applicant appear to have been fully accommodated by the recommendation for early parole, and I agree with what is proposed.

DERRINGTON J: I agree with what has been said by both my

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friends.
MACROSSAN CJ: The order will then be as the Court has

indicated, namely, that the application should be refused.

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