R v Vidot

[1992] QCA 420

COURT OF APPEAL [1992] QCA 420

PINCUS JA
McPHERSON JA

WHITE J

CA NO 262 OF 1992
THE QUEEN
v.

ERNEST PAUL VIDOT

Applicant

BRISBANE

... DATE 20/10/92

JUDGMENT

McPHERSON JA: The applicant pleaded guilty in the District Court at Brisbane to two counts charging him with indecent dealing with a girl under the age of 16 years. The girl in question was some 15 or so years old. She was the step-daughter of the applicant.

The account she gave of the particular two incidents that are the subject of the charges was to the effect that in the absence of her mother, the applicant had come to her room and had obliged her to tolerate treatment, which consisted essentially of his

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placing fingers in her vagina or, as in one of the two incidents,
lying on top of her.

It would be perhaps more accurate if I describe it in her words as they were related by the Crown Prosecutor at the hearing. They are as follows. The applicant said to her, "There's nothing wrong with it" and that he was just having fun. The complainant said that she was rolling around in the bed, and told him to go away; and:

"When I told him to go away he just got really angry,

and he told me not to say anything to anybody; and he told me if I was to tell mum, mum would kill him, and she would probably kick me out of the house."

The complainant, as this statement relates, went on to add that the applicant had said to her, "You had better not say anything because there's going to be big trouble, if you do." According to the account given to the complainant, that instance was not an isolated episode.

The other incident constituting the circumstances of the second count was that, according to the complainant, the applicant "Lay on top of me. He didn't have any of his clothes on. It was like he was trying to push it in but he didn't. He just rubbed it on top of me." The complainant went on to say that she had told the applicant not to do it and to go away. She had identified the thing that was rubbed on top of her as the applicant's "private".

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He had again said to her on this occasion that it was nothing to worry about; it was all right; that he was not doing anything to the complainant and, generally that she would not become pregnant. Nevertheless, he evidently ejaculated, and she had to find a towel and wipe the sheets with it.

In sentencing the applicant, the learned District Court Judge said that the applicant had made consistent approaches to the complainant, who was a person under the care. He went on to say that the applicant had a trust to keep and had breached that trust repeatedly.

No complaint is made about those observations, nor about His Honour's remark that the community "would not tolerate behaviour of this sort". The sentencing comments that were made however, go on to say, "The terror and pressure you put on this girl of tender years, pestering her in this way, is intolerable."

It is perhaps not accurate to say that the girl was reduced to a state of terror; but it is certainly correct that pressure was exerted on her; and the further statement, if that is what it is, about her state of terror, is not in my view sufficient to justify this Court in interfering with the sentence.

The sentences imposed were terms of imprisonment for 18 months.

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In the case of each of the two counts those sentences were to be served concurrently. It is suggested that the sentences are manifestly excessive having regard, in particular, to a number of factors to which I will now refer.

The first is that the applicant is a man aged some 42 years of age with no previous convictions. The second is, that he is a native of the Seychelles, where it appears he himself experienced somewhat similar improper treatment at an age of about eight years.

Finally, it is suggested that the behaviour was a lapse as the result of alcohol abuse - that it was uncharacteristic, and that he has since taken steps, by consulting a psychiatrist, to obtain treatment for his condition.

When all these matters are considered, the fact remains that this was a serious offence committed by a person in a position of trust toward the girl, who was his step-daughter. She resisted the offences, which were nevertheless persisted in; and it is evident that advantage was taken of her position of subservience to perform these acts upon her.

Allowing for the matters I have identified as mitigating factors to be considered by his Honour in arriving at the sentence, I do not regard the terms of imprisonment of 18 months, to be served

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concurrently, as in any sense manifestly excessive in the light

of the nature and circumstances of these two offences.

I would refuse the application for leave to appeal.

PINCUS JA: In my opinion, the psychiatric report is of some assistance to the applicant but having considered it I have formed the view that the judge's sentence is within the range of a permissible exercise of discretion for the reasons which my brother McPherson has mentioned. I therefore agree with the order which my brother proposes.

WHITE J: I agree with the order of Mr. Justice McPherson and with the reasons that he gave for that order.

PINCUS JA: The Court's order will be that the application for leave to appeal against sentence be refused.

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