R v May[1999] QCA 127

COURT OF APPEAL

de JERSEY CJ

DAVIES JA

FRYBERG J

CA No 450 of 1998

THE QUEEN

v.

JONATHAN PAUL MAY   Applicant

BRISBANE

DATE 14/04/99

JUDGMENT

THE CHIEF JUSTICE:  The applicant pleaded guilty to having maintained an unlawful sexual relationship with a child under 12 years. 

The offending conduct covered 11 months in 1996.  The applicant was then 28 years old and the complainant was his 11 year old, year 7 school pupil.  The applicant was the teacher.

The complainant was devoted to the applicant who encouraged that devotion.  The offending conduct was regular and various stopping short of sodomy although sodomy was, as it was put, simulated involving the applicant moving his erect penis between the complainant's buttocks though without penetration of the anus.  The child was unwilling. 

The applicant was otherwise of good character and admired in the community, with no previous convictions.  He has been diagnosed as suffering from paedophilia but with reasonable prospects of rehabilitation.  The complainant has been obviously adversely affected.

The applicant was sentenced to six years' imprisonment with a recommendation for eligibility for parole after two and a half years.  That would be referable to his having pleaded guilty and to his prospects of rehabilitation.

The application is based on the contention that the sentence imposed is manifestly excessive.  The points made for the applicant in writing are that he had desisted from the offending conduct for five months prior to the complaint, when challenged he had once admitted the conduct and attempted to apologise, and that he has pleaded guilty and is remorseful and willing to undergo treatment.

It is significant that the misconduct took place generally in the earlier part of the morning, behind locked doors, in the classroom which the complainant, under the tutelage of the applicant, thereafter occupied for the subsequent parts of the days. 

Counsel for the applicant, Mr Reid, submitted that the applicant should have been imprisoned for no more than four years with the imprisonment being suspended after 12 to 18 months.  Counsel for the Crown asserted a range of five to seven years, referring to Jones CA 264 of 1992 and Mentink CA 389 of 1993.

Mentink was a 44-year-old man who maintained a sexual relationship with a willing 14-year-old male student over three months.  He was sentenced to six years' imprisonment.  Jones was a 33-year-old man who maintained a sexual relationship with his niece from ages 12 to 15 years including sexual intercourse.  He received seven years' imprisonment.

Mr Reid referred, particularly, to Fattoretto where a term of five years' imprisonment was imposed with parole after 18 months.  That offender engaged in group sexual activity with four girls over a period of three years.

I do not consider that the cases establish a range for the sort of conduct of which this applicant was guilty, which stops at a maximum of five years.  Notwithstanding the absence of actual anal penetration, the point on which Mr Reid principally focused, I consider that, allowing for the differences between the cases and the context they set, six years was an appropriate sentence for maintaining an actively sexual relationship involving many forms of depredation, over this substantial period, against the wishes of the complainant who was so far divergent in age from the age of the applicant.  And allowing also, of course, for the extremely important circumstance that the applicant was the complainant's school teacher whom he trusted.

I also consider that the allowance made by the learned Judge with respect to parole did give sufficient weight to the plea of guilty and to the circumstance that the applicant desisted five months prior to the complaint which, presumably, also affected the head sentence.  I would refuse the application.

DAVIES JA:  I agree.

FRYBERG J:  I agree.  As to the order proposed, I would add only this:  the mitigating factors to which Mr Reid has referred in my judgment tend to place this case toward the high end of the range.  It is, however, not in my view a manifestly excessive sentence which was imposed.  I agree with the order proposed.

THE CHIEF JUSTICE:  The application is refused.