The State of Western Australia v Cairns
[2006] WASCA 178
•8 SEPTEMBER 2006
THE STATE OF WESTERN AUSTRALIA -v- CAIRNS [2006] WASCA 178
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 178 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:232/2005 | 9 JUNE 2006 | |
| Coram: | WHEELER JA McLURE JA BUSS JA | 8/09/06 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA SIMON DELMEGE CAIRNS |
Catchwords: | Criminal law and procedure State appeal against sentence Sexual offences against children Sentence manifestly inadequate Suspension of sentence Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(2) Criminal Code (WA), s 321 Sentencing Act 1995 (WA), s 76(2), s 80, s 87 Sentencing Legislation Amendment and Repeal Act 2003 (WA) |
Case References: | Bosworth v The Queen [2004] WASCA 43 Chan v The Queen (1989) 38 A Crim R 337 Dinsdale v The Queen (2000) 202 CLR 321 H v The State of Western Australia [2006] WASCA 53 Ling v The Queen [2000] WASCA 129 Lowndes v The Queen (1999) 195 CLR 665 McGarry v The State of Western Australia [2005] WASCA 252; [2005] 31 WAR 69 Powell v The Queen, unreported; CCA SCt of WA; Library No 8928; 6 June 1991 R v GP (1997) 18 WAR 196 R v Major [2001] WASCA 46 R v Percy [1975] Tas SR 62 The State of Western Australia v Houston [2005] WASCA 167 The State of Western Australia v Marchese [2006] WASCA 153 VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 Dick (1994) 75 A Crim R 303 Everett v The Queen (1994) 181 CLR 295 Hodder v The Queen (1995) 15 WAR 264 Hull v The State of Western Australia [2005] WASCA 194 LSC v The Queen [2003] WASCA 303 R v Chilvers [2003] WASCA 87 R v Tait (1979) 46 FLR 386 R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987 Woods v The Queen (1994) 14 WAR 341 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- CAIRNS [2006] WASCA 178 CORAM : WHEELER JA
- McLURE JA
BUSS JA
- Appellant
AND
SIMON DELMEGE CAIRNS
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GROVES DCJ
File No : IND 1211 of 2004
Catchwords:
Criminal law and procedure - State appeal against sentence - Sexual offences against children - Sentence manifestly inadequate - Suspension of sentence - Turns on own facts
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 31(2)
Criminal Code (WA), s 321
Sentencing Act 1995 (WA), s 76(2), s 80, s 87
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr K P Bates
Respondent : Mr J B Prior
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Williams Ellison
Case(s) referred to in judgment(s):
Bosworth v The Queen [2004] WASCA 43
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen (2000) 202 CLR 321
H v The State of Western Australia [2006] WASCA 53
Ling v The Queen [2000] WASCA 129
Lowndes v The Queen (1999) 195 CLR 665
McGarry v The State of Western Australia [2005] WASCA 252; [2005] 31 WAR 69
Powell v The Queen, unreported; CCA SCt of WA; Library No 8928; 6 June 1991
R v GP (1997) 18 WAR 196
R v Major [2001] WASCA 46
R v Percy [1975] Tas SR 62
(Page 3)
The State of Western Australia v Houston [2005] WASCA 167
The State of Western Australia v Marchese [2006] WASCA 153
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Case(s) also cited:
Dick (1994) 75 A Crim R 303
Everett v The Queen (1994) 181 CLR 295
Hodder v The Queen (1995) 15 WAR 264
Hull v The State of Western Australia [2005] WASCA 194
LSC v The Queen [2003] WASCA 303
R v Chilvers [2003] WASCA 87
R v Tait (1979) 46 FLR 386
R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987
Woods v The Queen (1994) 14 WAR 341
(Page 4)
- WHEELER JA:
The appeal
1 This is a State appeal against sentence. On 30 August 2005, the respondent pleaded guilty to one count of indecently dealing with a child between the ages of 13 and 16 years and one count of sexually penetrating a child between the ages of 13 and 16 years, both on the same day in December 2003.
2 In relation to the first count, the respondent was sentenced to a 12-month intensive supervision order, with supervision and programme requirements. In relation to the sexual penetration, the respondent received a term of 9 months' imprisonment, suspended for 9 months. In fixing the term of 9 months, the sentencing Judge had regard to the fact that the respondent had spent a little over 5 months in custody for the offences prior to being sentenced. The term of imprisonment for the sexual penetration offence, added to the time in custody, would be equivalent to a term of 1 year and 9 months prior to the commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA).
3 The State contended that the sentences for both offences were manifestly inadequate. In particular, it contended that the sentence imposed for the offence of sexual penetration was manifestly inadequate because of the length of the term and the fact that it was suspended.
Circumstances of the offences
4 In relation to the indecent dealing, the 15-year-old female complainant was dressed in school uniform and walking to her high school. The respondent, a young man of 24, had driven to the area in his work vehicle. He said that he had run out of fuel near the pathway upon which the complainants were walking. However, as was noted in the pre-sentence report, there were some contradictory accounts given by him of precisely how he came to be at the scene and to commit the offences, and some tendency towards minimisation on his part. His Honour made no finding in relation to a number of those surrounding circumstances.
5 In any event, being at the scene, the respondent approached the complainant and asked if she wished to sell her underwear to him. Not surprisingly, she declined, and he then offered $150 for her underwear. She continued to walk on and he made two indecent proposals to her, asking if she wanted to give him "some head" and offering to show her his
(Page 5)
- "cock". She ran towards a friend who was some little distance in front of her and both girls then ran to school.
6 So far as this offence is concerned, it must be accepted that it would have been very disturbing for the complainant. The bizarre nature of the respondent's request in relation to the complainant's underwear would, of course, have led her to be concerned that she was dealing with a disturbed and unpredictable person, and his physical proximity to her at the time of the indecent proposals must have given rise to some concern about the possibility that he would offer violence of some kind towards her. Despite those disturbing features for the complainant, however, the encounter was a very brief one, and there was no actual physical contact and no overt threat.
7 The count of sexual penetration arose at the same place some 10 minutes or so after the respondent approached the first complainant. The second complainant was also in school uniform and walking to school along the same path. She was 13 years of age. Again, the respondent asked if she wanted to sell her knickers to him, this time offering $200. He stood in front of her, blocking her path, as he did so. When she declined and attempted to walk past him, he increased the offer to $300. As she attempted to walk around him, he pushed her sideways, which caused her to fall to the ground. The respondent knelt over her, pulled her knickers down to about her thighs and sexually penetrated her by placing his finger in her vagina. She struggled, scratching and trying to kick out at him. The respondent got off her when he was disturbed by a student riding a bicycle towards him. The complainant got to her feet and headed towards her school. The respondent turned towards her and she told him to get away from her. He apparently then jogged away from the area.
8 Although close in time, and apparently motivated by the same impulse (whatever it may have been), the offences were different in important respects. The first offence involved an older complainant (although still obviously a schoolgirl) and no physical contact, let alone sexual penetration.
The respondent's personal circumstances
9 There are certain issues in relation to which his Honour made no express finding. I have already noted the question of whether the offending was to any degree premeditated. So far as its discovery was concerned, it appears that the respondent was identified as a result of information made available to police by an employee, following a public appeal. A number of the respondent's employees made statements which
(Page 6)
- portray the respondent as a person with a predatory attitude towards young girls, and having no understanding whatever of the seriousness of sexual offending of this kind. However, a detailed psychological report prepared for the Court tends to suggest that the respondent was motivated for his offending, in part, by a desire to appear "manly" in the eyes of some employees who had themselves displayed disrespectful and predatory attitudes towards women. The pre-sentence report suggested that his seeking the complainants' underwear was for some sort of workplace competition, although the writer of the report notes that the respondent declined to provide the details of employees who would be able to verify that assertion. A number of character references from people who have known the respondent for some considerable time speak very highly of him and speak of his sensitivity towards others. It is difficult to reconcile these various accounts.
10 Turning to other personal factors, there were again contradictory indications in relation to remorse and a desire for rehabilitation. The respondent did not plead guilty at the earliest opportunity. He was arraigned in August 2004. There was a voir dire listed prior to trial at which the admissibility of videotaped records of interview was put in issue. The plea of guilty was finally entered in August 2005.
11 However, it also appears that there was some negotiation with the State from a relatively early time about the possibility of a plea of guilty, and the respondent did, in due course, plead guilty. He expressed remorse to the writer of the pre-sentence report. Very unusually, while in custody, prior to his plea of guilty and prior to sentencing, he engaged at his own expense in a significant course of counselling, extending over some 25 sessions. A report from the psychologist who counselled him was available to the learned sentencing Judge. Broadly, the thrust of it was that the respondent had himself been the victim of some sexual abuse while quite young, and that his difficulties in coming to terms with this abuse led to a lack of empathy on his part with victims of sexual abuse, including the complainants in the present case. The development of empathy is considered to be a very important factor in preventing reoffending in cases of a sexual nature. The report was to the effect that the respondent was working very hard at understanding the issues involved and was showing signs of developing such empathy.
12 So far as other relevant personal circumstances were concerned, the respondent was 24 years of age at the time of the offending, with a record which effectively consisted of cannabis-related and driving offences. His parents had separated when he was young, he struggled at school, and he
(Page 7)
- was eventually diagnosed with ADHD, medication for which apparently improved his academic performance somewhat. He had a very positive employment history, working primarily within his father's business. His father had died of cancer a few years before and the respondent had then taken the business over in 2002, having worked in it since he was 18. Both his father's illness and the taking on of the business, which had a number of employees, at a relatively young age, had been stressful for him. At the time of sentencing, he was engaged and living with his fiancee.
13 His Honour's observations about the respondent were largely positive. Notwithstanding the various matters which might indicate a degree of premeditation about the offending, and an absence of, or limited, remorse (at least at the time proximate to the offending), his Honour was plainly impressed by the fact that the respondent had participated in numerous counselling sessions of his own volition and at his own expense. His Honour referred to the reports which suggested that, taking all matters into account, he was at the lower end of the "medium to low risk" category of reoffending. In the light of that and of other personal factors, his Honour took the view that it would be "in the interests of the community" as well as in the interests of the respondent that he have the opportunity in the community to address the matters identified in the psychological reports. His Honour considered that the psychological reports suggested that the respondent did now have empathy with his victims; that seems to me to be overstating the matter somewhat, but it was a finding open to his Honour.
The indecent dealing
14 Having regard to the circumstances of the offence, it seems to me that the sentence imposed in relation to the indecent dealing was not manifestly inadequate. If that offence is considered on its own, it is arguable that the imposition of an intensive supervision order was a severe penalty, and that a fine may have been more appropriate. Different considerations arise in relation to the sexual penetration.
Length of the term of imprisonment
15 The dominant sentencing considerations for sexual offences against children are punishment, general and personal deterrence and the protection of vulnerable children: Bosworth v The Queen [2004] WASCA 43. Generally a term of immediate imprisonment is imposed for sexual offences against children, but each case must be considered on its own facts.
(Page 8)
16 Turning to the circumstances of this sexual penetration, although the complainant was a child, it was plainly not a case involving the type of frequent, prolonged, serious sexual abuse of a child which would require a very lengthy term of imprisonment, as discussed recently by this Court in VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1. The State cited that case as an illustration of the general principles, but the offending involved was so very different in nature that it provides no assistance whatever. The State also cited McGarry v The State of Western Australia [2005] WASCA 252; [2005] 31 WAR 69, particularly at [93] - [94], for the proposition that a relevant sentencing consideration is the vulnerability of young girls who are at an age at which they are learning to move independently about the community, and the potential impact upon them if they are offended against in a way which may lead them to feel they are no longer safe in doing so. The principle is of relevance, but it must be noted that McGarry, too, involved very different offending, in the sense that McGarry's offending was prolonged and persistent over very many years and apparently increased in seriousness as time went on. This offence is the first offence of its kind committed by the respondent.
17 The State did not refer to any cases having circumstances comparable to the circumstances of this case, which would assist this Court in setting and maintaining appropriate sentencing standards. Having regard to the principles governing State appeals, that is particularly unfortunate. It is the duty of the State, if it brings an appeal of this kind, to place as much relevant material as possible before the appellate court, particularly where the circumstances of the offending are rather unusual. However, having regard to the sentences imposed in Powell v The Queen, unreported; CCA SCt of WA; Library No 8928; 6 June 1991, Ling v The Queen [2000] WASCA 129, and R v Major [2001] WASCA 46, I am satisfied that the length of the term imposed in this case was manifestly too short, even having regard to the period which the respondent had spent in custody.
18 Making allowance for the element of double jeopardy, a sentence of 2 years (being 3 years prior to the transitional provisions) would, in my view, have been appropriate. As the 5 months already served by the respondent would equate to a non-parole term of 10 months, a reduction to take that period into account would reduce it to 1 year and 2 months.
(Page 9)
The suspension of the sentence
19 The respondent's case presented some very unusual features which have the result that I am not persuaded that his Honour erred in suspending the sentence. The effect of s 39(3) of the Sentencing Act1995 is that it is only if it is not appropriate to suspend the term, that a sentence of immediate imprisonment may be imposed.
20 Had his Honour imposed a term of 1 year and 2 months, then assuming that the respondent was made eligible for parole, the further time he would be required to serve before becoming eligible for release would be only 7 months. Having regard to the reports before his Honour about the respondent's efforts towards rehabilitation and developing empathy, and acknowledging that a male prison frequently contains many people who lack respect for women and empathy with the victims of sexual assault, it was open to his Honour to conclude that it was not in the interests of the community generally that the respondent be returned to prison for that relatively short period.
21 Further, it is clear that his Honour regarded the sentence imposed in relation to both offences as a "package", in the sense that the intensive supervision order was designed to ensure that the respondent continued to deal with the issues which had led to his offending, while the suspended term of imprisonment was to mark the serious nature of the offences and to provide an element of deterrence. It is relevant to note that an updated psychological report of 19 May 2006, provided to the Court by consent, reveals that since the respondent was first sentenced he has met with the psychologist for a further 12 sessions, 10 of those sessions following his release, and that further ongoing sessions are booked. The respondent is working long hours to re-establish his business, his fiancee is pregnant and she and the respondent expect a baby later this year. The psychologist considers that the respondent is making significant progress in taking responsibility and demonstrating remorse for his offending, understanding the deviant thinking which led him to offend and developing empathy for the victims and a more respectful attitude towards women generally. Further, he has used no cannabis or any other drug since his initial arrest and has consumed alcohol only moderately. That report justifies the view which his Honour the learned sentencing Judge apparently arrived at, which was that the respondent was genuinely remorseful, genuinely motivated to reform and capable of achieving rehabilitation in the community.
(Page 10)
22 Having regard to all the factors relevant to sentencing and acknowledging that due weight must be given to the respondent's early action to take steps towards rehabilitation, I am not persuaded that the sentencing Judge erred in suspending the sentence. Although suspended, a suspended term of imprisonment is nevertheless a term of imprisonment and a sentence of some severity: Sentencing Act1995 s 76(2). It is the "penultimate penalty" available to the Court (R v Percy [1975] Tas SR 62, cited in R v GP (1997) 18 WAR 196 per Malcolm CJ at 217 - 218), and the consequence of any further offending by a person serving such a sentence would be almost inevitable imprisonment (Sentencing Act 1995 s 80).
Conclusion
23 Accordingly, I would allow the appeal, set aside the sentence imposed for the offence of sexual penetration and in lieu thereof impose a sentence of 1 year and 2 months to be suspended for 1 year and 2 months.
24 McLURE JA: This is a Crown appeal against sentence. The respondent pleaded guilty to one count of indecently dealing with a child between 13 and 16 years and one count of sexually penetrating a child between 13 and 16 years. The circumstances of the offences are detailed in the judgment of Wheeler JA and not repeated here.
25 The sentencing Judge imposed a 12 month intensive supervision order for the offence of indecent dealing and a 9 month term of imprisonment suspended for 9 months for the offence of sexual penetration. In fixing the term of 9 months, the sentencing Judge had regard to the fact that the respondent had spent a little over 5 months in custody for the offences prior to being sentenced (as to which, see s 87 of the Sentencing Act 1995 (WA)). Thus, the term of imprisonment for the sexual penetration offence was in effect 1 year and 2 months, which converts to a term of 1 year and 9 months under the sentencing regime that applied before the commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA).
26 The State contended that the sentences for both offences were manifestly inadequate. In particular, it contended that the sentence imposed for the offence of sexual penetration was manifestly inadequate because of the length of the term and the fact that it was suspended. The State only challenges the sentence for indecent dealing because the imposition of a term of immediate imprisonment for sexual penetration
(Page 11)
- would prevent the imposition of an intensive supervision order for the offence of indecent dealing.
Principles relating to State appeals
27 It is a general principle applicable to all appeals that an appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing Judge: Lowndes v The Queen (1999) 195 CLR 665. However, it is entitled to intervene if, among other things, error can be inferred because the sentence is unreasonable or unjust. It will be unreasonable and unjust if it is manifestly inadequate because the wrong type of sentence was imposed or because the sentence was too short: Dinsdale v The Queen (2000) 202 CLR 321 at 324 - 325.
28 To determine whether a sentence is manifestly inadequate, it is necessary to view it in the perspective of the maximum sentence prescribed by the law for the crime, the standard of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337 at 342.
29 Special principles apply to State appeals against sentence. They are comprehensively stated in The State of Western Australia v Houston [2005] WASCA 167 at [52] – [54], per Steytler P, and The State of Western Australia v Marchese [2006] WASCA 153 at [25] - [28]. It is unnecessary to detail the principles here. It is sufficient to note that State appeals are brought in rare and exceptional cases to establish some point of principle and that when a court decides to resentence an offender, it ordinarily gives recognition to the element of double jeopardy involved by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.
Manifest inadequacy
30 The maximum penalty for the offence of indecent dealing with a child between 13 and 16 years is 7 years (s 321(4) and s 321(8)(a) of the Criminal Code (WA)). The maximum penalty for sexual penetration of a child between 13 and 16 years is 14 years (s 321(2) and s 321(7)(a) of the Criminal Code). On any view, the offence of sexual penetration is significantly more serious than the offence of indecent dealing.
(Page 12)
31 I agree with the State's characterisation of the circumstances of the offences as serious. They were boldly committed in broad daylight while other members of the public, including other school children, were in the area which suggests the respondent was driven to act in disregard of the consequences. The victims were young girls on their way to school. They were unknown to the respondent and offered him no provocation or encouragement. The respondent was not discouraged by the first victim's reaction and he used actual violence to commit the second offence. He only desisted in his attack against the second victim when he was interrupted by a passer-by.
32 When the respondent returned to his workplace, he boasted offensively of his offending behaviour to several of his employees.
33 The respondent did not make an early plea of guilty. He was arraigned on indictment on 16 August 2004 and pleaded not guilty. He challenged the admissibility of a video record of interview and two search warrant videos. During the search of his work premises, the respondent made admissions. On 9 June 2005, after hearing evidence from a number of witnesses for the State and defence, the respondent's bail was revoked.
34 On 30 August 2005, pleas of guilty were entered. The respondent's late plea of guilty has a mitigatory effect (H v The State of Western Australia [2006] WASCA 53) even if, as the appellant contends, his boastful behaviour and subsequent conduct indicated lack of remorse and lack of insight into the serious nature of his offending.
35 The respondent was born on 26 August 1979 and was aged 24 at the time of the offending. He had a prior record of minor offending of a non sexual nature. At the time of sentencing, the respondent was engaged and living with his fiancee. He finished his TEE and from the age of 18 worked in his father's furniture business which he has run since his father's death in 2002. His fiancee looked after the financial aspects of the business while he was in custody.
36 The sentencing Judge had before him a report dated 9 October 2005 from a counsellor who provides therapeutic services to perpetrators of sexual abuse. She had a total of 25 sessions with the respondent in the period between February 2004 and November 2004. At the first meeting in February 2004 the respondent acknowledged to the counsellor that he had committed the offences although he disputed some of the details in the statement of material facts. The report states that in the writer's
(Page 13)
- assessment, the respondent had taken responsibility, and demonstrated remorse, for his conduct.
37 A clinical psychologist with the Department of Justice concluded that the respondent was in the medium to low risk category of reoffending and, having sought to address his problem with counselling, was considered to be at the low risk end of that category. The sentencing Judge found that the respondent's voluntary participation in counselling reflected remorse and progress towards rehabilitation. Notwithstanding contrary indicators, this finding was open.
38 At the hearing of the appeal, the respondent tendered an updated report from his counsellor, who had met with the respondent for a further 12 sessions, some of which occurred after the respondent had been sentenced. The tenor of the report is positive with all key indicators pointing to a significant reduction in the likelihood of any sexual reoffending. Section 31(2) of the Criminal Appeals Act 2004 (WA) entitles the Court of Appeal to have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal is heard. The updated report is relevant to the discretionary considerations that arise when a court is re-sentencing or considering whether it should exercise its discretion to dismiss an appeal even if a sentence is manifestly inadequate.
39 I turn now to the sentences customarily imposed for offences of this type. The dominant sentencing considerations for sexual offences against children are punishment, general and personal deterrence and the protection of vulnerable children: Bosworth v The Queen [2004] WASCA 43; VIM v The State of Western Australia (2005) 31 WAR 1. Mitigatory factors personal to an offender are given less weight than they might otherwise have. The practical effect of these sentencing principles is that ordinarily a term of immediate imprisonment is imposed for sexual offences against children. However, it is not an invariable rule and each case must be considered on its own facts.
40 The first issue is whether the term of imprisonment was too short. I am satisfied that, having regard to the serious nature and circumstances of the offence of sexual penetration and the other relevant factors, a term of 1 year and 2 months (1 year and 9 months under the former sentencing regime) is manifestly inadequate. In reaching this view I have had regard to sentences imposed for similar types of offending: Powell v The Queen, unreported; CCA SCt of WA; Library No 8928; 6 June 1991; Ling v The Queen [2000] WASCA 129; R v Major [2001] WASCA 46.
(Page 14)
41 Making allowance for the element of double jeopardy, a sentence of 2 years (being 3 years under the former sentencing regime) is required to satisfy all of the sentencing objectives. I would reduce that term by 10 months to 1 year and 2 months to allow for the 5 months already served (which equates to a parole term of 10 months).
42 The trial Judge's discretion having miscarried, the whole of the sentence should be set aside: McGarry v The Queen (2001) 207 CLR 121 at [9]. However, if the sentencing Judge did not err in suspending the sentence the proper course would be to suspend the sentence. That is so because the Sentencing Act permits the Court to impose a term of immediate imprisonment only if it is not appropriate to suspend the term (s 39(3)). A suspended term of imprisonment is the penultimate penalty in the hierarchy of penalties provided for in the Sentencing Act. The principles applicable to the suspension of sentences under the Sentencing Act 1995 (WA) were considered by the High Court in Dinsdale v The Queen (supra). In that case the appellant was convicted after trial of the sexual penetration of a child under the age of 13 years and one count of indecently dealing with that child. Both offences occurred on the same date and at the same place. The trial Judge sentenced the appellant to concurrent terms of suspended imprisonment. The Court of Criminal Appeal allowed the prosecution appeal, set aside the sentence imposed by the trial Judge on the offence of sexual penetration and in lieu, ordered that the appellant be sentenced to 30 months' imprisonment. The High Court held that the Court of Criminal Appeal erred in concluding that the suspended sentences were manifestly inadequate.
43 The circumstances of the offences in this case may be regarded as of greater seriousness than those in Dinsdale. However, the personal factors in this case are significantly more positive. They can properly be characterised as exceptional. Of greatest significance is the appellant's early and continuing action in acknowledging and seeking professional assistance to overcome his propensity for deviant behaviour. Moreover, it is seldom the case that a sex offender is assessed by professionals as being of low risk of reoffending. Further, the appellant had spent some five months in custody. In the unusual circumstances of this case, I am not persuaded the sentencing Judge erred in suspending the sentence. However, the consequence of imposing a term that was too short is that the period of suspension is correspondingly too short. I would impose a term of imprisonment of 1 year and 2 months suspended for the same period.
(Page 15)
44 Accordingly, I would allow the appeal, set aside the sentence imposed for the offence of sexual penetration and in lieu thereof impose a sentence of 1 year and 2 months to be suspended for 1 year and 2 months.
45 BUSS JA: I agree with McLure JA.
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