The Queen v Sherwin[1998] QCA 463

COURT OF APPEAL

PINCUS JA

McPHERSON JA

MUIR J

CA No 26 of 1998

THE QUEEN

v

DAVID BAIRD SHERWIN  Applicant

BRISBANE 

DATE 16/04/98

JUDGMENT

MUIR J:  The applicant was convicted of indecent assault on his plea of guilty.  He was sentenced to imprisonment for three months and the learned sentencing Judge made a  probation order with a term of two years commencing on 2 February 1998.  A condition of the probation order was that the applicant receive such counselling as the Community Correctional Officer may direct.  We were informed by Mr Hardcastle, who appeared for the applicant, that such counselling was in progress. 

The circumstances of the offence were as follows.  The complainant was a boy of 14 years of age at the time of the offence.  He was a friend of the applicant's son.  He, and some other friends, slept over at the applicant's house on the night of the offence.  The complainant was woken during the night.  The applicant was kneeling next to him, had his hands down his pants squeezing his penis and touching him on his buttocks.

The applicant was born on 5 April 1955.  He was divorced many years ago and since his divorce, or at least at the time of the offences, he was the sole supporter of two children aged 14 and 16.  At the time of the offence his 14-year-old daughter was undergoing chemotherapy as treatment for cancer.  It may be accepted that the applicant was under considerable emotional stress at the time.  It is not disputed that he had been drinking heavily.  Since 1992 he has worked part-time as a printer but has not been able to generate sufficient income from the business to support himself.  He has no prior criminal history.

The applicant, when interviewed by the police in relation to this offence, made no admissions.  The matter was set down for hearing in the District Court at Southport and the applicant first intimated that he would plead guilty shortly before 10 am. on the morning of the trial.  The late plea, however, may be explicable, at least in part, by the fact that until the morning of the trial the Crown proposed to present an eight count indictment.

In his sentencing remarks the learned trial Judge emphasised the applicant's late plea, the serious and prevalent nature of the type of offence in question and the position of trust in which the applicant was placed in relation to the complainant.  In my view, there were strong considerations militating against a custodial sentence.  They are the absence of force or threats, the unplanned, limited and isolated nature of the applicant's actions and the applicant's personal circumstances which I have earlier outlined.  There was also the fact that the applicant did plead guilty before the commencement of the trial and the complainant thus was spared the need to give evidence.

Of the cases to which reference was made by written submissions on behalf of the parties, the ones with the facts closest to the facts of this case appear to me to be The Crown and McCormack and The Crown and Reid.  In both of those cases the Appeal Court considered that a custodial sentence was not warranted. 

The applicant's conduct was abhorrent.  He was, as the learned trial Judge pointed out, in a position of trust but, in my view, for the reasons I have earlier given, a custodial sentence was manifestly excessive.

We were informed by Mr Hardcastle that the applicant had been granted bail on 5 February and has thus served only a few days of his term of imprisonment.  I would set aside the sentence imposed by the learned trial Judge in so far as it provides for a term of imprisonment and otherwise allow the probation order to stand.

PINCUS JA:  The learned primary Judge's rather brief explanation of his decision on sentencing included some emphasis upon the late plea.  His Honour said, and I quote it in whole:

 "I am required to take into consideration the fact you have pleaded guilty and I also take into consideration it was a very late plea.  As you heard me say to the jury panel before, they were brought in on the basis that this matter was going to be a trial.  It was only at 10 to 10 that the Court was informed that you changed your mind and intended to plead guilty to this offence, despite the fact that the matter was reviewed on Friday and the Court was told it would be a definite trial."

As Mr Justice Muir has pointed out, the record discloses that there was an eight count indictment and that the Crown indicated that it would proceed only on one count, namely count number 5.  This may or may not be the whole explanation of a late plea but, in any event, it is a fact which makes the learned primary Judge's emphasis upon the lateness of the plea somewhat inappropriate, in so far as His Honour took that into account against the applicant.

For the reasons given by Mr Justice Muir, I agree that the sentence of imprisonment should be deleted from the orders which the learned primary Judge made.

McPHERSON JA:  I agree with what has been said by both other members of the Court.  I  would only add that there was also an application for an order that the recording of a  conviction be set aside and that no conviction be recorded. 

In my view, it was within the exercise of a proper sentencing discretion for the Judge in this case to order that the conviction be recorded.  I can see no error in his doing so and I would therefore not accede to that aspect of the application in this matter.

PINCUS JA:  I should say that I agree with what has fallen from Mr Justice McPherson.  The orders of the Court will therefore be application granted, appeal allowed, set aside the term of imprisonment imposed below, otherwise confirm the sentence and, in particular, the probation order made below, and the recording of the conviction.