The Queen v Walker[1998] QCA 378

COURT OF APPEAL

McMURDO P

McPHERSON JA

SHEPHERDSON J

CA No 271 of 1998

THE QUEEN

v.

WAYNE WILLIAM WALKER Applicant Appellant

BRISBANE

DATE 08/10/98

JUDGMENT

McPHERSON JA:  The applicant seeks leave to appeal against sentences imposed on 17 August 1998 in the District Court at Maryborough.  The applicant pleaded guilty there to three counts each of indecent dealing with a child under the age of 12.  He was sentenced to imprisonment for three years on the first count, two years on the second count, and 12 months on the third count.

The complainant in count 1 was a five-year-old girl, who stated that the applicant pulled down her pants and touched her vagina.  This was witnessed by the complainant in count 2, who was an 11-year-old girl.  Count 2 involved the applicant's touching that complainant on the outside of her clothing, but in the area of the vagina.  The third count arose when the applicant kissed a six-year-old boy, who was in the bed with the others, on his neck.  This complainant was asleep at the time, but the offence was witnessed by the complainant in count 1.

The applicant initially denied the offences, claiming he did not remember committing them.  However, he eventually accepted responsibility and pleaded guilty at a "full hand-up" committal. He submits that the sentences imposed are manifestly excessive and that the effective three year sentence did not significantly recognise his pleas of guilty and remorse, and that an 18 month sentence fully suspended would be more appropriate.

He is now 50 years of age with a good employment history and a lack of previous convictions for offences of this kind.  He has a limited criminal history, with only two convictions one of which was defrauding the Commonwealth and the other producing a dangerous drug.  In respect of the fraud on the Commonwealth, the sentence imposed was imprisonment for 12 months.

The applicant claims to be deeply embarrassed and ashamed by his conduct.  He has attempted to commit suicide twice since the offences were committed.  On the second occasion he was evidently saved only by the unexpected return home of his two sons.  He submits that the offences with which we are concerned represented an isolated incident and were committed while he was intoxicated.  He also draws attention to the fact that they involved no violence, threats or intimidation of any kind.  He has since relocated from the place where the offences were committed to Sydney in order to avoid further confrontations with the parents of the complainants.

It is said on his behalf that the learned sentencing judge failed to take into account these and other features which are said to have rendered the offences much less serious than some others of their kind.

The learned sentencing judge referred to a "serious betrayal of trust" on the part of the applicant when he had been allowed, in his own interest, in close proximity to the children.  The applicant acknowledges that that makes the offence more serious, but submits that he was not in any position of trust in the ordinary sense, such as to elevate his conduct into a more serious category of offending.  It is however true that, having been given the benefit of accommodation in someone else's home, he abused the confidence that was placed in him. 

The applicant also submits that the learned sentencing judge placed too much weight on the consideration of general deterrence.  Reference to comparable decisions on sentence in this field of human offending is notoriously uninstructive. In R v. Brown (CA No 289 of 1995; 23 October 1995) this Court allowed an appeal against a sentence of three years imprisonment imposed in a case in which the applicant pleaded guilty to indecently dealing with a girl under 12.  The Court of Appeal added a recommendation that the applicant be considered for release on parole after serving nine months. The offence there went somewhat further than this, in that the applicant there was acting as a custodian to his stepdaughter and another girl, when he pulled the complainant's legs apart and ripped her pants off before trying to stick his finger in her vagina and anus, as well as licking her on the face.

In R v. Pham (CA No 435 of 1995; 6 February 1996) the applicant enticed a young girl into his shop, kissed her on the mouth and cheek, pulled her pants down, pulled his jeans down, exposed his penis, placed her hand on it and ejaculated.  On appeal a sentence of one year was imposed in the course of varying the sentence below, which was at a higher level.

I would regard both of those cases as involving offences more serious than any of these now under review.  What counts against the appellant here is, of course, that there were three different children involved in this incident and that the offences were committed in the circumstances I have described.

It must, however, be acknowledged that the offences are relatively mild forms or versions of their kind.  The applicant has, I would accept, shown genuine remorse and he did spare his child victims the experience of a trial in Court when he pleaded guilty to the three offences.   Those matters, his suicide attempts, which, unlike some that one encounters, appear to be genuine, and his removing himself to Sydney, go some way to attesting to his feelings of shame and remorse. 

He has also suffered a degree of retribution for his offences, in the form of a blow he received on the night in question.  It should perhaps be added that he (whether accurately or not we do not know) described it as a "flogging".  It is, to some extent, relevant to take into account in favour of an accused that he has already suffered some degree of retribution; but, in the present case, it does not appear to have amounted to very much.

In the end, I do not consider that the applicant can escape a prison sentence for what he has done.  He has, in fact, already served 52 days of the sentence imposed by His Honour in the Court below.  However, I consider that the sentence in this case was manifestly excessive, which means that it must be set aside and the discretion re-exercised by this Court.

For the reasons given, I would allow the appeal and reduce the sentence of three years to one of imprisonment for 15 months to be suspended after a period of six months, with an operational period of two years.  That is the effective sentence I have in mind, and it will be the sentence imposed in respect of count 1.  The other sentences are, to a large extent, a formality, but to maintain some semblance of rationality about them, I would on count 2 impose a sentence of 12 months, again suspended after six months on the same terms as in the case of count 1, and on count 3 a sentence of one month.

The existing sentences that are imposed below will therefore be varied accordingly, by reducing the terms of imprisonment in the manner I have stated.  There will also be the order for their suspension in the terms mentioned.

I do not think it is necessary to go further in the matter than to say that those sentences will, of course, be served concurrently.

THE PRESIDENT:  The respondent concedes the sentence imposed below was outside the appropriate sentencing range for a case of this type.  I agree with that concession.  This Court must sentence the appellant afresh.  I agree with the sentences suggested by Mr Justice McPherson and with the reasons therefor and with the proposed orders.

SHEPHERDSON J:  I agree with the reasons given by Mr Justice McPherson and the orders he proposes.  I agree also with what has been said by the President.

THE PRESIDENT:  The application for leave to appeal is granted, and the other orders are as outlined by Mr Justice McPherson.