R v GA[1999] QCA 9

COURT OF APPEAL

de JERSEY CJ

THOMAS JA

MACKENZIE J

CA No 417 of 1998

THE QUEEN

v.

GA Applicant

BRISBANE

DATE 4 FEBRUARY 1999

JUDGMENT

THE CHIEF JUSTICE: The applicant, then a 44-year-old man, indecently dealt with his nine-year-old adopted son. On one occasion he fondled the complainant's penis to the point of erection, and on the other separate occasion he performed an act of oral sex upon the complainant. He was sentenced to 12 months imprisonment.

He had no prior criminal history. He pleaded guilty to the offences 15 years after the commission of them. He was an otherwise stable person and notwithstanding an absence of expressed remorse, to which I will come later, he had the benefit of the sort of mitigatory features often present in these cases.

To imprison an offender in such circumstances is in accordance with the current approach plainly open. The cases of T, 215 of 1993, Wayne, 178 of 1998 and Goulding, 154 of 1994 to which we were referred by the Crown confirm that.

We were urged by Mr Clark who appeared for the applicant that the sentence should have been wholly suspended. As to that, the learned Judge said:

"A suspended sentence may have a very serious effect on someone who is inclined to offend again. There is good reason to keep someone out of prison on the basis they will never go to prison if there is no further offending, for example, the use of a suspended sentence is often thought to be particularly effective in the case of property crimes which are driven by heroin addiction. You are not in that category. All things considered you should go to prison for a term of one year. In making that decision I have taken into account all factors both for and against you."

What His Honour said there was preceded by what I would regard as a rational, comprehensive and balanced examination of the relevant circumstances about which no complaint is made beyond criticism of His Honour's reference to the absence of remorse.  He said:

"It is rather striking that in the psychiatrist's report and in the remarks of your counsel there is no expression of remorse or regret for what has happened."

I see no problem with that observation and am not prepared to conclude, as we were urged, that the terms of His Honour's observation suggest that he gave that consideration inappropriate weight.

Mr Clark referred us to G, No 10 of 1994 and C, No 44 of 1994 and took us carefully through the circumstances of those cases, cases in which the Court of Appeal, on Attorney's appeals, declined to interfere with suspended sentences.

I am not persuaded that those cases necessitated the suspension of these 12 month terms. It fell within the proper limits of His Honour's essentially discretionary judgment to determine that this sentence which otherwise fell within an appropriate range should not be suspended. I would refuse the application.

THOMAS JA: I agree. Total suspension is sometimes appropriate in cases of this kind, as C and G exemplify, but such a course was not obligatory in the present case. The sentence fell within the discretion open to the learned sentencing Judge and I agree that the application should be refused for the reasons given by the Chief Justice.

MACKENZIE J: I agree with the reasons of the Chief Justice and the further remarks of Mr Justice Thomas. I agree on the outcome.

THE CHIEF JUSTICE: The application is refused.