Attorney-General v K[1997] QCA 427

DAVIES JA:  The respondent pleaded guilty in the District Court on 31 July this year on one count of indecent assault with fellatio and five counts of indecent dealing with a child under 12.  The count of indecent dealing with fellatio and one of the counts of indecent dealing which occurred on an occasion in 1997 were in respect of a seven-year-old male who was the respondent's cousin and, in the other counts which occurred in 1995 the complainants were two girls aged 10 and eight, the children of a woman with whom the respondent's father was in a de facto relationship.

The respondent was born on 24 October 1977.  He was therefore aged 17 or 18 for all of the counts involving the girls, and he was 19 by the time he committed the counts involving his male cousin.  He was sentenced to two years probation and no conviction was recorded.

The Attorney appeals against the whole of that sentence but at the commencement of argument in this Court Mrs Clare, who appears for the Attorney, indicated to us that the Attorney no longer appeals against that part of the sentence other than the non-recording of a conviction.  In other words she is no longer contending that some other sentence than the sentence of two years probation should have been imposed.

The respondent has no other criminal history.

As many of the same factors apply to an appeal against the discretion with respect to recording a conviction as apply to the appeal against the other aspects of the sentence I should say something about the relevant history of the respondent  and of the circumstances of these offences.

The respondent's mother died of a heart condition in August 1994 when he was 16 years of age.  He had resided with his parents and his paternal grandmother most of his life, being close to both his mother and his grandmother.  He was a very shy, introverted child who had considerable difficulty in adjusting to high school which caused him to develop an intense anxiety.  This resulted in considerable absences from school against his parents' wishes.  This in turn caused difficulty in coping with school work and he failed in a number of subjects.

When his mother died the respondent became severely depressed.  His father took up with another woman, the mother of the two girls, a few days after his mother's death.  After a few months his father took him, the respondent, to that woman's house where he occasionally stayed overnight and the offences with the girls were committed during one of these visits.

Each of them involved masturbating inside the child's pants and assimilated intercourse whilst fully clothed for about 30 seconds.  There are only two such incidents.

There is no suggestion that the girls were psychologically affected in any way.  Indeed their mother has assisted the respondent with his psychological problems and had it not been for the incident involving his male cousin these events would never have come to light.  It was thought that they could be satisfactorily dealt with within the family.

The two offences involving the young boy arose out of a single incident in which he fellated the boy for a short time and rubbed his penis against the boy's bottom.  He was at the time visiting his young cousin's house.  The boy complained about the incident and when pressed by the family the respondent admitted to it.

Acting on a complaint from the male child the police interviewed the respondent who admitted it and then volunteered a confession about the two incidents involving the two girls.

The respondent's voluntary confession and his early plea of guilty made it unnecessary for any of the complainants to be interviewed by police about these incidents.

The learned sentencing Judge rightly took the view that the respondent's conduct throughout showed considerable remorse.

A psychiatrist who examined the respondent thought that the factors relevant to his offences were poor social skills and personal maturity associated with severe introversion and shyness, the sudden loss of his mother and a failure to get appropriate support to overcome his grief; and normal sexual development urges at a time when he lacked social and personal skills to express his feelings appropriately.

The psychiatrist thought that the likelihood of re-offending was low if treatment was continued.  He thought that a custodial sentence was unlikely to have a positive effect on him and he thought he was likely to make a significant gain in his social skills and personal growth if he continued this treatment.

The respondent has himself since being charged with these offences made initiatives to improve his social skills, becoming active in a community group and, having earlier given up employment after his mother's death, he has now obtained unpaid work with a joinery business, on his own initiative, with a view to obtaining an apprenticeship.

As the cases cited to this Court show, there is a wide range of sentences for offences of this kind.  That has been the subject of comment in this Court on previous occasions, and the respondent's counsel has been able to cite a number of cases in which the sentences imposed in somewhat similar circumstances have been similar to this, and in which in circumstances similar to this and in one case circumstances which appear to be considerably more serious than this, no conviction has been recorded.

The factors which justified the approach taken by the learned sentencing Judge, or at least show the particular course which he took was not outside the range of a sound sentencing discretion, both as to the sentence imposed and as to the non-recording of a conviction, are as follows:

The youth of the offender, and perhaps I could add to that, the absence of any position of trust which is often found in cases involving offences of this kind by adults.

The fact that these, though serious, were at the lower end of the range of offences of this kind. 

The psychological problems which the respondent has had over a period and the fact that he now appears to be overcoming them.

The fact that it is thought by the psychiatrist that he is most unlikely to re-offend and consequently that he is not a danger to others if he remains at large.

His remorse and his otherwise blameless life.

There is always a difficulty in Attorney's appeal where a sentencing Judge at first instance has imposed a sentence which allows an offender to remain at large, because as the High Court has mentioned in Everett (1994) 181 CLR 295, an appeal such as this cuts across the time-honoured concept of criminal administration by putting a person in jeopardy for the second time.

Much the same factors in my view apply to the non-recording of a conviction, particularly the respondent's youth and, as I have mentioned, the likelihood of complete rehabilitation.

In those circumstances I do not think that this is a case in which this Court should interfere with the exercise of the learned sentencing Judge's discretion in not recording a conviction and as the balance of the appeal has been conceded I would therefore dismiss it.

de JERSEY J:  I agree.

MUIR J:  I agree.