Attorney-General v M[1997] QCA 280

COURT OF APPEAL

PINCUS JA

SHEPHERDSON J

WHITE J

CA No 261 of 1997

THE QUEEN

v.

M Respondent

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

DATE 06/08/97

JUDGMENT

PINCUS JA:  This is an appeal against sentence by the Attorney-General.  The respondent was sentenced in the District Court for an offence of indecent dealing; he pleaded guilty and the judge imposed a sentence of two and a half years imprisonment, recommending eligibility for parole after four months.  His Honour also directed that consideration be given to enrolling the respondent in a sexual offenders' program.

The respondent was born on 22 August 1968 and committed the offence in December 1996; the prosecutor said the respondent's only previous offences were drink-driving and disqualified driving, of which charges he was convicted in 1995.

The offence now in question was committed on the respondent's daughter who was aged nearly four at the time.  The respondent had been drinking and was staying at the home of his sister and brother-in-law; the respondent was sharing a bed with the child at night.  One morning the child complained to her aunt that her father had made her bleed and the aunt noticed a little blood on the child's underpants and vagina; medical examination disclosed a tiny break in the skin of the fourchette, which is a fold of skin inside the vagina, but no other sign of injury.  When interviewed the respondent told the police that he had stroked his daughter's vagina inside her underpants.  He denied having inserted fingers into her vagina, but said that he must have pressed a bit hard because the child grimaced in pain and began to cry.  He told the police he had got out of bed, obtained a face washer and cleaned the child up; then, he said, he went back to sleep.

At the time of the sentence the child had been removed from the care of the respondent who had had sole custody of her, and placed with the respondent's sister and brother-in-law. 

Counsel for the respondent tendered below a report obtained from a psychologist who said that the respondent had had previous involvement with the law involving three charges of drink-driving; as I have mentioned, only one was referred to by the prosecutor.  The respondent told the psychologist that he had recently begun to take drugs, amphetamines, heroin and marijuana and that the day of the incident in question, before it occurred, he had been taking amphetamines as well as alcohol.  He expressed deep regret for what he had done.  Consistently with that attitude the respondent pleaded guilty to an ex officio indictment.  However, I note that he denied having penetrated the girl's vagina with his finger; it seems evident he must have done so.  While on bail in respect to this offence the respondent absconded and had to be located interstate.

The primary judge appears to have taken into account all the relevant matters before imposing, as he did, a sentence of two and a half years imprisonment with a recommendation for parole after having served four months.  It seems to me plain, if one examines the decisions relating to similar cases, that the sentence was rather lenient as to the recommendation for parole.  The circumstance that the respondent appears to have been affected by amphetamines and alcohol at the time he committed the offence does not constitute a mitigating factor; it has been held repeatedly in this Court in recent years that, ordinarily, voluntary ingestion of alcohol or other drugs does not constitute any sort of excuse for criminal behaviour.  The only true mitigating factors here are the absence of any particularly serious previous offences and the respondent's remorse, that there appears to be no solid evidence of permanent ill-effects for the child and, lastly, that as a result of this offence the respondent has been deprived, perhaps permanently, of the custody of his daughter.

The question, which I have found a difficult one, is whether as counsel for the Attorney-General, Mrs Clare, contends, it is appropriate for this Court to augment the length of the period fixed by the primary judge as that after the expiration of which the respondent was entitled to seek parole.  No attack is made on the head sentence.  Although there is always difficulty in making a precise comparison between the circumstances of one case of this kind and those of another, it does not appear to me that the decisions of this Court in B (C.A. No. 8 of 1996, judgment delivered 10 April 1996) and L (C.A. No. 463 of 1995, judgment delivered 16 February 1996) provide much support for the Attorney-General's contention that this is a case in which the intervention of this Court is called for. 

I would dismiss the appeal.

SHEPHERDSON J:  I am grateful to accept from the learned presiding Judge his statement of the facts in this particular case.  There is no appeal against the head sentence and the question is whether the sentence imposed, namely two and a half years, and that includes the recommendation for parole after four months, is outside the scope of a proper sentencing discretion.  The learned sentencing Judge in dealing with the recommendation said this:

"I have already noted that this is not a case of a course of conduct.  It is an isolated or what appears to be an isolated incident.  You have pleaded guilty by way of ex officio indictment.  You have done what you have been able to do to ensure that what occurred is not reinforced in the child's mind.  I take those matters into account.  The sentence I impose for this offence, aggravated offence of indecent dealing, is a sentence of two and a half years' imprisonment.  In view of the various matters I have mentioned, particularly your plea of guilty at a very early time, I recommend you be considered eligible for parole after you serve four months of that sentence."

In my view the recommendation for parole after four months does take the sentence outside the scope of a proper sentencing discretion.  The discount given, in my view, is far too great.  Without the recommendation he would be eligible to apply for parole after serving 15 months.  Now he is eligible after serving four months.

I would allow the appeal and in lieu recommend that he be considered eligible for parole after he has served 10 months of the sentence of two and a half years.

WHITE J:  I am of the view that the disparity between the head sentence and recommendation for eligibility to apply for release on parole is too great.  I consider that the head sentence for a single incident, serious though the features here are, is however on the high side.  Accordingly, in consideration of all the factors, including that the respondent will be under supervision for a lengthy period if released early as recommended, does not warrant interference on an Attorney-General's appeal, and accordingly I would dismiss the appeal.

PINCUS JA:  The appeal is therefore dismissed.