Attorney-General v McKillop[1997] QCA 283

COURT OF APPEAL

PINCUS JA

SHEPHERDSON J

WHITE J

CA No 263 of 1997

THE QUEEN

v

KEITH ROBERT McKILLOP Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

DATE 06/08/97

JUDGMENT

PINCUS JA:  This is an appeal by the Attorney-General against a sentence imposed in the District Court at Mount Isa.  The case was one in which an eight-year-old girl was indecently dealt with in rather a serious way; the respondent pleaded guilty to a charge of indecent dealing with a child and one of deprivation of liberty.  The respondent is a middle-aged man who has a substantial criminal history, mostly in respect of fairly minor offences apparently associated with drunkenness.  But I notice that for about 10 years from 1982 he was a persistent offender in respect of stealing and breaking and entering.  His most recent apparently serious offence was unlawful wounding in 1992; that produced an order for two years probation.  His prison sentences have been six months in 1971, nine months in 1973 and six months in 1986.

The offences as described to the primary judge were, in summary, as follows.  The eight-year-old child in question was a member of a family whom the respondent had known for some years.  The child left her home one afternoon on an errand for her mother and when she did not promptly return, the mother made inquiries to ascertain her whereabouts.  Eventually she was found at the respondent's house.  When located she ran out of the front door of the house wearing only a shirt with her shorts in her hand.  The child told the police that as she had walked past the respondent's house he called her in and told her he would tell her a story.  She repeatedly said she had to go home but he told her to come in and recounted a story about a fish he had caught.  He then directed her to lie down and said something about fucking.  He told her to take off her trousers and she replied, "No, I'm just a little kid".  She tried to run away but he held her.  She was crying and screaming out for help.  He told her to take off her trousers and slapped her across the face.  The child said that she was held down on a bed, initially with the respondent beside her and then he lay on top of her and kissed her on the mouth.  She said that he said he would give her $50 if she had a "rude" with him.  She said she did not want any money and he slapped her a second time.  He took off his trousers and lay on top of her and said things about wanting to have sexual intercourse with her mother.  She started to cry and he slapped her again on the face and then said something to the effect that she could come back tomorrow and they could be husband and wife.  The child said she took off her trousers because he threatened to hit her.  She said that he touched her on the vagina and it hurt.  When medically examined the child was found to have the following injuries: a lesion below the right eye and a blue/red streak above and lateral to the right lip, a blue and red discrete mark on the right cheek and some vague discolouration further around on the right cheek, which would all be suggestive of some degree of force being applied to the right side of the face.

So far as her genital examination was concerned, the labia majora was tender with posterior bruising.  The labia minora revealed spot haemorrhages and was tender.  The introitus to the vagina had spots and linear haemorrhages around the hymen.

The urethra had small haemorrhages.  There was a collection of tender bluish lesions on both inner thighs.

The respondent declined to be interviewed by the police, but the committal was merely formal and there was a plea of guilty before the day the trial was listed.

This appears to be an instance of a reprehensible and persistent attack upon a protesting little girl.  The case was obviously one which warranted several years imprisonment.  It is true that there was a plea of guilty, but there was nothing, apart from that, to suggest any remorse and there was no co-operation with the investigating police.  The judge sentenced the respondent to a term of 18 months imprisonment for the indecent dealing suspended after four months for a period of two years.  On the offence of deprivation of liberty the sentence was four months to be served concurrently.

In my opinion the sentence was much too light, having regard to the seriousness of the offence and the respondent's criminal history.  An important reason for it being too light was that the prosecutor argued for a term of imprisonment of, to use his words, "up to 18 months".

It is true that some allowance must be made for the plea of guilty, although I note that the physical indications of the respondent's treatment of the little girl would seem to have made any other course rather unpromising.  This is a case in which although the head sentence was precisely that suggested by the prosecutor, it is so far from a proper sentence that it must be increased.  I would allow the appeal, set aside the sentences imposed below and sentence the respondent to a term of four years and six months imprisonment in respect of each count with a recommendation that he be considered for parole after 18 months.

I would further recommend that the respondent be examined by a psychiatrist concerning his conduct in committing the offences with which the Court is now concerned and that the examining psychiatrist have, at the time of examination, a record of the proceedings now before this Court and these reasons.

SHEPHERDSON J:  I agree.

WHITE J:  I agree.

PINCUS JA:  That will be the order.