R v HA[1999] QCA 10

COURT OF APPEAL

de JERSEY CJ

THOMAS JA

MACKENZIE J

CA No 406 of 1998

THE QUEEN

v.

HA Applicant

BRISBANE

DATE 4 February 1999

JUDGMENT

THE CHIEF JUSTICE: The applicant, then a medical student, pleaded guilty to indecent treatment of children under the age of 16 years while in his care over a period of three years involving his taking photographs of the exposed genital areas of young boys. He was their baby-sitter.

Usually, while they were asleep, he would arrange their naked torsos and take the photographs, including videos, of their genital regions, which one infers he later used for some sort of gratification, although in what way is not clear. He did not relevantly touch the children. He is said to be of heterosexual orientation. He had no prior criminal history.

This disaster has probably ruined his prospective medical career. He is to undergo psychiatric treatment, although his own particular problem is very unusual and may be difficult to treat.

He was sentenced to 18 months' imprisonment for the indecent treatment of the children, there being 19 counts, and the offences amounting, as I have said, to the act of photographing. It remains to mention at this stage that the applicant had, himself, been interfered with sexually at an early age.

One of the points taken by Mr Glynn, who appeared for the applicant, concerned the learned sentencing Judge's treatment of the effect of this on the complainant's parents.

The Judge said:

"I must say that it seems to me the effect on parents is a significant factor in the case to be taken into account and is a relevant circumstance under section 9(2)P of the Penalties and Sentences Act. I need, of course, to take care not to allow that factor to hold sway in an exaggerated sense in the sentencing process.  It is but one factor, amongst many, that I need to take into account."

I consider His Honour was entitled to treat that circumstance as within the general category of relevant circumstances referred to in section 9, sub-section 2, paragraph P of the Act. As the attitude of the community is relevant, so to my mind, a fortiori is the case of these parents, so much more directly affected;  or perhaps one should say less remotely affected.

I do not consider that the reference in section 9, sub-section 2, paragraph C excludes this result. The final paragraph of sub-section 2 is intended to indicate, quite clearly, that the list which precedes it is not to be regarded as limiting.

Another point taken by Mr Glynn concerned what His Honour said about a possible future effect on the complainant children.  He said this:

"I am prepared to deal with you on the basis that it cannot be positively demonstrated that any of the children who are dealt with positively will suffer in the future in any sense but it seems to me that it is appropriate to consider that a possibility exists that some of them will. Some of them are almost 10 and some parents might see the need legitimately to tell them, for example, if they ever see you to have nothing to do with you. Now, if parents chose to tell their children that one could hardly criticise them for it or think it inappropriate If that happens, one would have to be naive to think that parents would not pestered to explain why and additionally parents might logically see the need to tell their children what you have done to them perhaps in an effort to impress upon the children the serious need to avoid you in the future. I do not say that to indicate that I consider you will commit offences in the future. I do not mean that at all and I am not sentencing you on the basis that you may commit offences or anything of that kind but one has to try to, in a commonsense way, look at the matter from the point of view parents of these children and try to work out as best one can what the logical possibilities may be. So, it seems to me that it is by means certain that there will not be any ongoing effects for the children and it seems to me certain that there will be ongoing feelings of disgust on the part of parents."

I consider that His Honour engaged thereby in undue speculation. If it were felt that the possibility arose inescapably from the material before him, then in my view the Judge was not obliged to exclude that possibility although one would think it would be accorded little, if any weight, in the sentencing assessment. But it does seem to me, particularly in light of what His Honour said as to the present position, that to go beyond that was to engage in a process of mere speculation which was impermissible.

It is not clear that the Judge has accorded this mere possibility, as he found it, any particular weight but in any case, as will appear from what I say shortly, I am satisfied that the 18 months' imprisonment, which was imposed here, was an appropriate penalty.

These were unusual offences. The essential thrust of the sentencing discretion rested here in deterrence, although punishment as a reflection of community disapprobation has significance also.

Society rightly finds the sexual exploitation of children abhorrent and this was such a case, albeit, as I have made plain, that there was no impermissible actual touching.

Notwithstanding that this is by nature an unusual variant on what has become a depressingly common theme, it properly attracted a substantial penalty. The cases of Sexton, No 238 of 1997 and Denboon, No 211 of 1993, to which we were referred, provide some assistance, albeit limited, in support of the general approach which was taken here.

But it must be observed that there are substantial differences between the facts of those cases and the facts of the present. Especially bearing in mind the deliberative and repetitive nature of this conduct and the circumstances that the complainants were in the care of the applicant in whom their parents reposed great trust, I consider that this conduct, which occurred over a period of years, warranted 18 months' imprisonment. I would find the alternative suggested by Mr Glynn, probation or an intensive correction order or a suspended sentence, an inadequate response in view of the need for general deterrence.

Having said that, I should note also, however, the view expressed by the psychiatrist, Dr Curtis, placed before His Honour that the applicant remains relatively insightless as to his problems.

Overall, I do not consider it established that these sentences are manifestly excessive or that the sentencing process in any material respect miscarried. I would, therefore, refused the application.

THOMAS JA: I agree. In relation to the second point discussed by the Chief Justice, namely the references by the learned sentencing Judge to the possibility of adverse effects in the future upon the children, I will add a few words.

The Crown Prosecutor below apparently conceded that the children were not aware of the photographing activities or, indeed, of any of the acts for which the applicant fell to be punished. It was submitted that whilst it cannot be proved that any of the children will be adversely affected in the future, there is a possibility that some will. That submission and the express statement in His Honour's reasons "It seems to me that it is by no means certain that there will not be any ongoing effects for the children" seem to me to be a reversal of onus and to be contrary to the requirements of the majority decision in R v. Morrison CA No 391/97 delivered 26 June 1998.

His Honour's statement was premised on preceding observations which have been quoted by the Chief Justice and which may be paraphrased as "some day the children may be told what happened to them, and if they are they may then suffer". I do not think that such a factor should be allowed to play any legitimate part in the sentencing process. Mrs Clare, for the Crown, submitted that where there is a real possibility of future harm (as she submitted to be so in the present case) the case would be placed on a different plane to one where all the outcomes are known. That may in a particular case be correct, but in a matter such as the present we are in an area of sheer speculation. In my view, that factor should not have been permitted to play any part in increasing the sentence.

Having said that, it seems to me that in its context His Honour was adverting in a transitory way to this particular factor and although it amounts to an error it does not appear to have been a central consideration in the overall sentencing remarks.

When one looks at the circumstances including that there are 19 offences, 14 complainants and that the acts were committed in a deliberate fashion over three years, it does not seem to me that the sentence actually imposed is beyond reasonable limits.

It is true that the applicant has suffered from his loss of prospect of becoming a medical practitioner, he, being at the time, a fifth year medical student. However, the material shows that he has suffered from paedophile problems, which on the medical report, are not necessarily resolved. In all the circumstances, I would not be prepared to interfere with the sentence that has been imposed.

MACKENZIE J: I agree with the outcome proposed. I agree with the remarks of the Chief Justice and with the amplification of the discussion of the second ground by Thomas JA relating to the use that may be put to theoretical or speculative possibilities of future effects upon victims. I, therefore, agree with the order proposed.

THE CHIEF JUSTICE: The application is refused.