Attorney-General v Bazley[1997] QCA 235

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 220 of 1997

Brisbane

[R. v. Bazley;  ex parte A-G]

THE QUEEN

v.

JOHN REGINALD BAZLEY

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Davies J.A.

McPherson J.A.

Williams J.

Judgment delivered 5 August 1997

Joint reasons for judgment of Davies and McPherson JJ.A.;  separate dissenting reasons of Williams J.

APPEAL DISMISSED.

JOINT REASONS FOR JUDGMENT - DAVIES AND McPHERSON JJ.A.

Judgment delivered 5 August 1997

The Attorney-General appeals against sentences imposed in the District Court at Southport on 26 May last for offences of indecent assault and indecent assault with a circumstance of aggravation.  The sentences were respectively three years probation and three years imprisonment wholly suspended for a period of four years.  The result of these sentences was, of course, that although the respondent had a sentence of imprisonment imposed on him, because it was suspended he was not required immediately to go to prison.  The probation order was made subject to a special condition that the appellant undergo such psychiatric and psychological assessment and treatment as was recommended by a probation officer.

It has long been accepted that an appeal against sentence by the Attorney-General cuts across the time honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed:  Everett v. R. (1994) 181 C.L.R. 295 at 299.  A case such as this in which, in consequence of the sentence imposed below, the offender has not been put in actual custody, illustrates the difficulty facing the Attorney in such an appeal.  This Court made that point in R. v. Melano;  ex parte Attorney-General [1995] 2 Qd.R. 186 at 190  by saying that, especially where liberty is at stake, the Court is sometimes less reluctant in an appeal by the offender to alter the sentence imposed below.  In any event it will not do so in an Attorney's appeal unless the sentencing judge has erred in principle either because an error was discernable or demonstrated by a manifest inadequacy of sentence.

The victim of the respondent's offending conduct in this case was a three year old boy.  In the toy section of a large store the respondent played with the child's genitals and later sucked his penis.  He was observed in this conduct by a store security officer who had seen him on two occasions in the previous fortnight loitering suspiciously in the toy section of other stores.  Curiously the offences occurred in areas in which the respondent could be easily observed and apprehended.

Although abhorrent, the offences were not high in the scale of seriousness of offences of this kind.  No violence or even force was used.  Nor were there any threats.  The appellant was not in a position of trust.  And there is nothing in the evidence to indicate that the young boy has any likelihood of lasting psychological damage.  None of this excuses the respondent's conduct which appears to have been both premeditated and predatory.  Moreover it was, in the words of the learned sentencing Judge, "disgraceful, perverted conduct toward a trusting and defenceless three-year-old boy."  But the conduct was not in the worst category of cases of indecent assault or indecent dealing.  Nevertheless the offences were sufficiently serious as ordinarily to justify a sentence which would include a period of actual imprisonment.  Comparable cases, a schedule of which was placed before us, indicate that the range of head sentences is eighteen months to three years imprisonment with parole before the halfway point where the offender pleads guilty.

When first apprehended the respondent denied the commission of the offences and said he was merely talking to the boy.  Thereafter he gave other exculpatory but to some extent inconsistent explanations, nevertheless continuing to deny the commission of the offences.  Ultimately he made admissions and, when one considers the time taken to determine the respondent's sanity at the time of commission of these offences and his fitness to plead, a timely plea of guilty thus avoiding the need for any court hearing.  By s.13 of the Penalties and Sentences Act that guilty plea had to be taken into account in imposing sentence.

The respondent is a 50 year old bachelor with no previous convictions of any kind.  However it seems likely from what he has told psychiatrists that he has previously engaged in paedophilic activities although to what extent is not clear.  He saw two psychiatrists, Dr. McDonald who it seems first saw him on behalf of his solicitors and who had, at the time of sentence, treated him over an extended period and Dr. Fama who saw him on behalf of the Mental Health Tribunal.  Their opinions are very similar and we can detect no substantial difference between them in respect of relevant matters.

Apart from his paedophilic tendencies Dr. McDonald described him as suffering an episode of major depression over the last two years and, over a longer period of time chronic depression which he described as dysthymic disorder.  He also thought he had additionally developed a post-traumatic stress disorder in consequence of his arrest, temporary incarceration of one week following his arrest and their consequences.  Dr. Fama described his condition as dependent personality disorder and a severe depressive episode.  Both described him as having suicidal tendencies especially at the thought of going to prison.  During his temporary stay in prison he had apparently been assaulted and threatened with more serious assault or even death if he returned.  Both thought he would be prone to more serious depression and even suicide if returned to custody.  Plainly his presentation to both doctors over an extended period was, in Dr. Fama's terms, "wretched".

The most difficult aspect of the respondent's presentation to the doctors was his apparent unwillingness to accept the wrongfulness of his actions.  On more than one occasion he said that he had never harmed the boy, that he would never harm children and that he loved children and he seemed unable to accept that his actions were wrongful and harmful.  Dr. McDonald thought that this unwillingness to accept the wrongfulness of his actions was, in part, attributable to the respondent's impaired capacity to appreciate that wrongfulness.  Understandably both doctors were guarded in their prognosis with respect to his paedophilic tendencies.  Nevertheless Dr. McDonald thought that there were some prospects of rehabilitation with continuing treatment under his care if the respondent did not go to gaol.

His Honour would therefore have been entitled to conclude that this was not a case in which the respondent, if left at large subject to a condition requiring him to undergo such psychiatric assessment and treatment as might be recommended, would probably be a danger to small children though that remained a possibility.  On the other hand his Honour would have been justified in concluding that the respondent's impaired capacity to appreciate the wrongfulness of his actions diminished his moral culpability to some extent and that this tended toward a more lenient view in sentencing.^[1]

Additional factors tending towards leniency in this case were his timely plea of guilty, the absence of previous convictions, his general psychiatric state, the consequent risk of suicide and the probability, in any event, of serious deterioration in his condition if he were sent to gaol.

These factors presented a very difficult choice for the learned sentencing Judge.  On the one hand the offence was one which ordinarily would require the imposition of a sentence which included a period of actual custody.  On the other hand the respondent was a 50 year old man with no previous convictions who pleaded guilty and in respect of whom gaol is likely to impede rather than assist rehabilitation and may indeed have tragic consequences.  Both psychiatrists strongly advised against the imposition of a custodial term and there is nothing which would indicate that the imposition of a term of actual custody would have any deterrent effect on this man's paedophilic tendencies except, of course, during what would be a relatively short period of actual incarceration.

In the end, although judicial minds may differ as to whether this man should have undergone a term of actual custody, we cannot be satisfied that, consistently with the principles to which we have referred and the fact that a term of three years imprisonment has been imposed on him, which he will probably be required to serve in prison if he commits another offence, the sentences actually imposed were manifestly inadequate.

The appeal should be dismissed.

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 5 August 1997

This appeal acutely raises for consideration competing issues which are always of major concern to judges responsible for imposing sentences.  Part of the difficulty is due to the fact that the range of sentencing options is limited.  If a court considers that some deprivation of liberty is called for then effectively that result can only be achieved by imposing a sentence of imprisonment which will be served in one of the jails located throughout the state.  Experience has shown that such institutions are not appropriate for many of the persons convicted in the courts and where some deprivation of liberty is called for.  But until such issues have been addressed and other institutions have become available wherein society can exercise a degree of control over the convicted person without the disadvantages commonly associated with our present jails, judges are forced to make the unenviable task of determining the appropriate sentence between the competing options of imprisonment or a community based order.

The reasons given by the learned sentencing judge on imposing sentence, and the reasons for judgment of Davies JA and McPherson JA in this court (which I have had the advantage of reading), clearly demonstrate that ideally the respondent should be subject to strict supervision in an institution other than one of the jails currently found in our society.  But that option is not available, and in consequence it is necessary to determine whether the proper sentence for the offences in question is that of imprisonment to be immediately served.

There are a number of aspects of the offences which, in my view, make them particularly serious.  They occurred in a public place - the toy department of a large store.  Courts have emphasised in a number of cases that where breach of trust is involved (for example, parent‑child or teacher-pupil relationships) a sentence reflecting the need for deterrence is called for.  But in my view offences such as these cannot be regarded any differently.  Parents are entitled to expect that their young children can walk around the public shelves of a toy shop without being subjected to sexual molestation.  I find it difficult, if not impossible, to distinguish between a person who exploits a relationship of trust to molest a young child and a person who deliberately preys on young people likely to be found in a toy shop.  The material here suggests that the respondent had kept this toy department under observation over a period of time, undoubtedly waiting for the opportunity of acting as he did with the complainant boy in this case.

Further, the courts are required in imposing sentence to have regard to "any physical or emotional harm done to a victim":  s.9(2)(c) of the Penalties and Sentences Act 1992.  If only because of difficulties in communication and problems of interpreting the behaviour of a three year old, it is virtually impossible to determine whether or not there has been any immediate or long term physical or emotional consequences for the complainant.  For that reason, in my view, this court ought not assume there will be no temporary or lasting emotional damage to the young boy.

There are, as I have already noted, strong arguments in favour of not interfering with the sentences imposed in this case.  Indeed my mind has fluctuated as to whether or not the sentences imposed were so inadequate as to justify interference by this court on an appeal by the Attorney-General.  But ultimately I have come to the conclusion that the very nature of the offences, and the circumstances in which they were committed, warrant the imposition of a sentence of imprisonment where the respondent was obliged to immediately serve a portion thereof.  I appreciate that requiring a person such as this respondent to spend only a relatively short period in actual custody achieves little by way of rehabilitation, and may even have adverse consequences.  But in the end result I have come to the view, bearing in mind the principles of sentencing set out in s.9 of the Penalties and Sentences Act, that a sentence other than one requiring serving some time in immediate custody would not reflect the serious nature of the crime committed and would not adequately reflect the deterrent aspect of sentencing.

In determining the appropriate sentence one has to recognise that this was a plea of guilty (I agree with what is said by Davies JA and McPherson JA in that regard) and the sentence must reflect an appropriate discounting for that (s.13 of the Penalties and Sentences Act).

I would set aside the sentence imposed on the first count namely 3 years' imprisonment suspended for a period of 4 years, and in lieu thereof sentence the respondent to imprisonment for a period of 3 years and recommend that it be suspended after serving 9 months thereof with an operational period of 4 years.  The sentence on the second count should stand.