Attorney-General v Gardam[1998] QCA 289

THE PRESIDENT:  This is an appeal against sentence by the Attorney-General of Queensland. The accused pleaded guilty by way of ex officio indictment to four counts of indecent dealing with a child under the age of 16 years in the Mackay District Court on 6 March 1998. He was sentenced to two years which were wholly suspended for an operational period of three years. The respondent is 55 years of age and has no prior convictions. He was a family friend of the complainant's parents. The complainant was 12 years old at the time. The offences occurred after heavy consumption of alcoholic spirits by the respondent.

Count 1 occurred on Christmas Day when the respondent rubbed his hand on the complainant's left breast. Counts 2, 3 and 4 occurred on 27 December last year in this way. The respondent kissed the complainant on the lips, pushed up her pyjama top, sucked one of her breasts and put his hand down her pants touching her bottom, (count 2).  The respondent then placed her hand on his penis on the outside of his pants. He tried to put her hand down his pants but she pulled her hand away, (count 3).  The respondent then tried to put his hand down the front of her pants and then put his hand over her genital area on the outside of her pants. The complainant resisted by rolling away. The respondent tried to pull her back towards him but she grabbed onto the side of the bed, (count 4).  The respondent then left the complainant who told her sister and then her parents. The respondent was confronted by the parents and readily admitted touching the complainant. He was later interviewed by police and admitted the offences.

The respondent at the sentence maintained that as a result of his offending he resigned from his position of groundsman at a school after telling the principal about the matter. This was later found not to be totally correct. He left his job mentioning that he was in trouble with the law. He later did voluntary mowing work at the school until the principal was informed the accused had been convicted of these offences.

The Crown upon learning this then sought to re-open the sentence before the learned sentencing Judge pursuant to section 188 of the Penalties and Sentences Act on 7 July 1998. The learned sentencing Judge declined to re-open the sentence as his decision was largely based on the respondent's clinical depression, his remorse and his plea of guilty by way of ex officio indictment.

Without being able to cite comparable cases, it is the applicant's submission that the sentence imposed was manifestly inadequate, failing to take into account the gravity of the offence generally and in particular, failing to take into account the aspect of general deterrence and giving too much weight to factors of mitigation.

Offences of this kind as noted by the sentencing Judge are always serious and probably usually result in a sentence of imprisonment. It can be said, however, that these offences, though serious, were less serious than many of this type and where there are special circumstances the sentencing Judge does have a discretion, as to whether a custodial sentence should be imposed.

In this case the respondent immediately admitted his guilt to the complainant's parents and later the police. He pleaded guilty by way of ex officio indictment saving any further trauma to the complainant. He sought medical and psychological help and was ashamed of his conduct. He was 55 years old with no prior convictions. He suffered shame in the community and medical depression.

In all these circumstances the sentence imposed by the learned sentencing Judge was within a sound sentencing discretion. I would dismiss the appeal.

PINCUS JA:  I agree.

HELMAN J:  I agree.

THE PRESIDENT:  That is the order of the Court.