Attorney-General v Payne[1999] QCA 309

COURT OF APPEAL

McPHERSON JA

THOMAS JA

DERRINGTON J

CA No 195 of 1999

THE QUEEN

v.

BRISBANE

DATE 04/08/99

JUDGMENT

McPHERSON JA: This is an appeal by the Attorney-General against alleged inadequacy of the sentence imposed on the respondent in the District Court at Ipswich.

He pleaded guilty to indecent dealing with a child under 16 with the circumstance of aggravation that the child was in fact under 12. He was sentenced to imprisonment for six months to be served, however, by way of intensive correction order. Under the Criminal Law Amendment Act 1945 the respondent was required for a period of three years to report to police his address and any change of it.

The respondent was a pensioner who lived near the grandfather of the complainant. The complainant was a boy aged 10 who used to visit the respondent's home in the company of his young cousin. He was playing under the respondent's house one day when the respondent began talking to the boy. The respondent was standing in the doorway and there is at least a faint suggestion that he was deliberately blocking the boy's natural escape route or at any rate his exit from under the house.

While standing there the respondent reached down and felt the boy's genitals through his shorts, meaning by that that he felt the clothing and what was underneath it. The child pushed him away and he and his cousin left the residence and later complained to their grandfather. 

The date of the incident was somewhere in about August or September 1997. The respondent was not interviewed by police until 3 August 1998 and admitted that he had touched the boy's penis from outside the clothing the boy was wearing. He had no explanation for his conduct on that occasion.

The respondent pleaded guilty and at no stage has the child been required to give evidence. At the sentence hearing the Crown Prosecutor accepted that the offence was at the lowest level of offences of this kind. He argued for a penalty of imprisonment for a term of six to 12 months and said he would not oppose its being fully suspended.

The respondent's personal background is that he was 56 years old at the time of the offence and 58 at the time of sentence. He had a good work record until he was affected by ill-health and he had cared for his aged parents from 1985. His father died in 1987 and his mother in 1997 shortly before this offence was committed.

The respondent had no prior criminal record of any kind. Her Honour acknowledged that, in accordance with decisions of the Court, those who sexually molest young children ordinarily attract a term of imprisonment. He did however accept that this was at the lowest level of seriousness in the scale of offences of this kind and that the offence was an isolated incident. The respondent had admitted the offence in the course of the police interview, and he had spared the complainant the experience of giving evidence. He also recognised that he might have a problem of some kind.

Her Honour considered that, although a period of imprisonment was ordinarily called for in a case like this, in this instance it was one that should be served by way of intensive correction order and not in detention or custody.

The stage has not yet been reached at which a sentence of imprisonment is mandatory in every offence of this kind. The sentence imposed by the learned trial Judge was, in my view, within the appropriate range or field of discretion entrusted to her in the case of an offence at this level of relative mildness, if I may so describe it.

It is not suggested that the complainant has sustained any permanent detriment as a result of the incident. There is no victim impact statement or any other statement to that effect and it would, I suspect, be rather surprising if there were.

There is nothing to suggest Her Honour misapplied her sentencing discretion in any respect. There is no basis for regarding the sentence as inappropriate, inadequate or wrong in these circumstances.

The appeal should in my opinion therefore be dismissed.

THOMAS JA: I agree. The proposition advanced by Mr Martin on behalf of the Attorney is that no case that involves molestation of a child can now attract anything less than an actual custodial sentence.

I see no reason why the Courts should abandon their traditional sentencing discretion. It is an elementary proposition that sentences must be fashioned to the circumstances of the particular case. 

Having regard to the circumstances in this case, I think that the learned sentencing Judge's response was appropriate and by no means unduly light.

I would dismiss the appeal.

DERRINGTON J: I agree. Nobody would challenge the proposition that offences of this kind are of themselves serious. However the Courts have treated them as such and have devised penalties that are perfectly adequate for the situation.

The sentence in this case is in line with those sentences and recognises the seriousness of the offence. It was plainly right and I find it regrettable that it was ever appealed against.

I agree with the reasons given by the learned Presiding Judge and by my brother Thomas and I would agree with the proposed order.

McPHERSON JA: The appeal is dismissed.