Attorney-General v H[1997] QCA 145

COURT OF APPEAL

DAVIES JA

THOMAS J

LEE J

CA No 89 of 1997

THE QUEEN

v.

BRISBANE

DATE 09/05/97

JUDGMENT

THOMAS J: The respondent was convicted in the District Court of two offences of indecently dealing with a girl under 12 and one of indecently dealing with a girl under 16. On each count he was sentenced to nine months' imprisonment to be suspended after three months with an operational period of four years.

The Attorney-General has appealed against the sentences on the ground that they are manifestly inadequate. 

The complainants are sisters and the respondent is their uncle having been married some time ago to the sister of the complainant's father.

Count 1 relates to A who is aged 11. The respondent apparently asked her for a hug and she refused. A short time later when she was alone he commenced to hug her and to squeeze her breasts from the outside of the clothing. A's mother arrived and told the respondent to get out.

The second count, again, involves A. It occurred 11 months later by which time she was 12. She was alone in a dining room in her grandmother's house. She and her mother were about to leave and she hugged the respondent good-bye. He again took the opportunity to squeeze her breasts from the outside of her clothing.

The third count relates to C who was aged 10. It occurred between November 1995 and April 1996. She and the respondent were playing a video game in a caravan. He touched her on the vagina with his fingers from the outside of her clothing. She was very frightened. She complained to her school principal in April 1996. This led to an investigation and the present proceedings.

Both complainants report that they were affected by the incidents and that they had difficulty sleeping for some time afterward. The physical circumstances of the offences are at the lower end of seriousness for this kind of offence. Indeed, the learned sentencing Judge considered and the Crown Prosecutor conceded that such conduct was at the lower end of the scale, and that if there were no previous convictions, a non-custodial order would have been appropriate.

However, unfortunately, there were previous convictions. The criminal history commences with offences of dishonesty which brought the respondent before the Courts nine times between 1970 and 1976. That is, between age 20 and 26. Of greater relevance are the fact that in 1983 he was convicted of the rape of a girl under 14 and sentenced to eight years' imprisonment. On the same occasion he was convicted of indecent dealing and concurrently sentenced to five years. The rape victim was aged 10 and was a niece of the respondent. 

He was again before the Court in 1990 when he was convicted of the unlawful and indecent dealing with a girl under 14. There were six charges in relation to offences which occurred between the end of 1988 and the beginning of 1990. On each charge he was sentenced to four and a half years' imprisonment with a recommendation for parole after 20 months. The complainant in the second group of charges was aged about 9 years. Those offences involved the abuse of a position of trust. The acts continued over an extended period and involved simulated sexual intercourse whilst clothed. It was disputed that he was on parole at the time of those latter convictions but the fact remains that only five and a half or six years after being sentenced to eight years imprisonment he was again committing offences of a similar kind.

Mr Shanahan, for the respondent, submitted that it is not permissible to use the fact of previous convictions for similar offences both to extend the range and then to argue that the offender should be placed at the top of the range. That is a correct submission, and it is important that if this Court finds it necessary to resentence due regard should be paid to it. The difficulty, of course, is in fixing the appropriate range in a case where the circumstances in themselves are light to moderate but the offender has a bad criminal history and shows a propensity to keep offending in similar ways. Mr Shanahan, rightly in my view, conceded that such a factor allows a higher sentence to be imposed.

That factor is very relevant in the present case. It shows, among other things, that stronger deterrence is necessary for him than it is for other offenders. If he is not severely punished there is a very strong probability that he will be at it again in the near rather than in the distant future.  Society strongly seeks protection of children from this kind of activity.

Those factors then may combine to require a higher sentence than would appear to be necessary if the circumstances were merely looked at in isolation. It was held in Veen (No 2), (1987-1988) 164 C.L.R. 465 that although prior criminal histories must not be given such weight as to lead to a penalty disproportionate to the gravity of the offence, such histories are relevant to show whether the offence is an uncharacteristic aberration or whether the offender has manifested a continuing attitude of disobedience of the law.

In the latter case, it is recognised that retribution, deterrence and protection of society may indicate that a more severe penalty is warranted. 

A number of so-called comparable cases were referred to for the proposition that two and a half years is an appropriate sentence for a relevant combination of circumstances. It is not necessary to do more than refer to the two more relevant of the cases cited namely Sherrat CA 240 of 1996, unreported, 13 September 1996, and Schirmer, CA 84 of 1995, unreported, 26 April 1995. They are not truly comparable although they resulted, with respect to some circumstances which may be thought to be similar, in a sentence of two years in Schirmer, and one of six months followed by three years probation in S [1996] QCA 345. While the history in the present case raises concern, we must not overlook the importance of the broad aim in the sentencing process of making the punishment fit the crime. But for what might be called the surrounding aggravating circumstances, a non-custodial penalty might well have been justified in the present case.

The appropriate response, in the present case, in my view is considerably less than the two or two and a half years suggested by counsel for the Attorney-General. 

The learned sentencing Judge adverted to the fact that at no time were the complainants required to give evidence and that the respondent was entitled to consideration for his plea of guilty to the offences. The learned sentencing Judge also observed that by using the mechanism of a sentence of imprisonment suspended after a relatively short period with a long operational period it was hoped that the respondent might be persuaded not to commit this type of offence again.

With that I agree entirely and consider that such a mechanism should be used in the present case. The main problem is the quantum. In all the circumstances I consider that the sentence was manifestly inadequate and that it must be increased. In the circumstances I would substitute one of 15 months suspended after six months with an operational period of four years.

DAVIES JA: I agree.

LEE J: I agree.

DAVIES JA: The appeal is allowed and the order is the order proposed by Mr Justice Thomas.