R v E; ex parte Attorney-General
[2000] QCA 251
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- R v E; ex parte Attorney-General[2000] QCA 251
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R v E; ex parte Attorney-General[2000] QCA 251
R v E; ex parte Attorney-General[2000] QCA 251
SUPREME COURT OF QUEENSLAND
CITATION: | R v E; ex parte A-G [2000] QCA 251 |
PARTIES: | R v E (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant) |
FILE NO/S: | CA No 68 of 2000 DC No 631 of 1999 |
DIVISION: | Court of Appeal |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | District Court at Mt Isa |
DELIVERED ON: | 27 June 2000 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 June 2000 |
JUDGES: | Davies, Pincus and Thomas JJA Judgment of the Court |
ORDER: | Appeal allowed. Sentence of 13 March 2000 set aside and in its place order that the respondent be sentenced to 12 months imprisonment suspended after four months for a period of three years. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – DISPARITY – GENERALLY CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OTHER OFFENCES – whether wholly suspended sentence manifestly inadequate in circumstances where indecent dealing involving digital penetration of 15 year old stepdaughter second offence of that nature – actual term of imprisonment necessary. R v Gardam; ex parte A-G CA No 98 of 1998, 5 August 1998, considered R v Libl; ex parte A-G CA No 22 of 1996, 22 March 1996, considered R v Millar [1998] QCA 110, CA No 201 of 1998, 15 September 1998, considered R v Pham CA No 435 of 1995, 6 February 1996, considered |
COUNSEL: | LJ Clare for the appellant BG Devereaux for the respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent |
- THE COURT: This is an appeal by the Attorney-General against a sentence imposed in the District Court for the offence of indecent dealing with a child under the age of 16 years with the circumstance of aggravation that the respondent was the child's guardian. The sentence imposed was 12 months imprisonment wholly suspended for three years.
- The respondent is a 56 year old man who on 10 February 1998 entered the bedroom of his 15 year old stepdaughter while she was asleep. He inserted his finger into her vagina and moved it in and out. The incident was terminated by the complainant's mother entering the room and asking the respondent what he was doing. An argument ensued which led to the respondent leaving the house and in due course to the break up of the marriage. The respondent had been the complainant's stepfather since she was five years old, having met her mother in the Philippines and having brought her and her children to Australia. The respondent declined to be interviewed by police, and no explanation whatever was offered to the court for his actions.
- No formal victim impact statement was tendered, but the Crown prosecutor reported having been informed by the complainant that she was now 17 years old with a six month old child, and that she has feelings of mistrust which make her afraid to leave her child with anyone other than her mother.
- This was not the only offence of this kind committed by the respondent. He had also assaulted his own daughter of a previous marriage some nine years previously in 1989. She was then 19 years old. The respondent had not then seen her for 14 years, but had arranged for her to come to Karumba to see him. Whilst there he took her for a drive, parked and took hold of her left breast. She resisted but the assault continued with the respondent grabbing both her breasts on the outside of her clothing and attempting to touch her in the area of the vagina. He then left the car and masturbated in her presence. Apparently his daughter did not make any complaint to the police until after the present investigation was commenced. In due course he pleaded guilty to the offence, but only on the first day of the scheduled trial of that offence, namely on 15 October 1999. It is unfortunate that both matters were not dealt with by the same sentencing court. On his plea of guilty on that occasion Hoath DCJ was not informed about the pendency of the present matter. Indeed his Honour expressly stated that, "I sentence on the basis that this was an isolated incident", referring to it as "an isolated aberration". In the result his Honour placed the respondent on probation for two years and ordered him to perform 120 hours community service.
- It is against that background that the adequacy of the present sentence needs to be assessed.
- The respondent has a commendable work history and has no previous convictions. He was said to have been shamed by the proceedings and to have suffered the disadvantage of losing a marriage that had apparently been successful for about 10 years.
- Mrs Clare, for the Attorney-General, referred to the fact that the conduct involved digital penetration of a blameless 15 year old girl by her stepfather. He exploited her at her most vulnerable, when she was sleeping in her bed. There was no explanation put forward for his conduct and no exceptional circumstances. Moreover this was his second deviation in relation to a teenage daughter or stepdaughter.
- The respondent was entitled to the benefit of his plea of guilty, although it must be noted that he had been caught in the act which is relatively uncommon in these cases. His personal antecedents are favourable, with the very significant exception of his earlier conduct towards his daughter. His antecedents and personal circumstances however do not outweigh the need for a custodial response to this sexual dealing which involved penetration by a person in a position of trust. In all the circumstances we fail to see how any proper sentence could fail to require actual custody to be served as part of the order.
- During the appeal reference was made to four cases in particular, R v Millar,[1] R v Libl ex parte A-G,[2] R v Pham[3] and R v Gardam ex parte A-G.[4] Of these the most comparable is Millar. He was a 34 year old man who boarded at the home of the complainant, a 16 year old girl who lived with her parents. After drinking with him in the absence of her parents, she went to sleep.
- She woke up to find Millar lying next to her with his finger in her vagina, moving it in and out. The Court of Appeal reduced a cumulative sentence of three years originally imposed for that offence to a cumulative term of 18 months. The circumstance that other offences of dishonesty committed some years previously also needed to be considered provides a complicating factor in examination of Millar, but the court did deal separately with each group of offences and saw fit to impose an 18 month cumulative term for that particular offence. Millar's antecedents were considerably less impressive than those of the present respondent, and we do not suggest that it provides a model for the present sentence.
- The difficulty of reconciling the varying penalties that are imposed on sexual offenders whose conduct and antecedents vary widely has often been noted.[5] In Libl the indecent dealing was performed by a 51 year old taxi driver upon a 33 year old quadriplegic woman who suffered from cerebral palsy. In his taxi he touched her breast, pulled up her skirt, pulled her panties to one side and inserted two fingers into her vagina. The offender was at the time undergoing particularly stressful factors in his personal life and it was recognised that his wife would undoubtedly suffer from the imposition of a custodial sentence upon him. Upon an Attorney-General's appeal a wholly suspended sentence of imprisonment was replaced with one of 18 months imprisonment with a recommendation for parole after six months.
- Pham involved a custodial sentence of one year for revolting conduct by a 24 year old man with a 12 year old girl in his fruit shop. He showed no remorse and submitted the complainant to cross-examination. By contrast, in Gardam, this court declined to disturb a wholly suspended sentence of two years imprisonment imposed upon a 55 year old man with no prior convictions, who was a friend of the 12 year old complainant's parents. The offences occurred two days apart at Christmas time after very heavy consumption of alcohol. The offender was ashamed, and sought medical and psychological help for a serious depression. He pleaded guilty upon an ex officio indictment.
- The respondent's conduct in the present case, which cannot be described as an isolated aberration, merited a custodial sentence, notwithstanding his relatively favourable antecedents. These can be taken into account in framing a moderate sentence with some degree of suspension. It is noted that he is already obliged to perform community service under the sentence imposed by Hoath DCJ as well as serve probation, and that his Honour's order included the useful requirement that he take part in counselling, programmes, or medical or psychiatric treatment as directed by his probation officer.
- We would allow the appeal, set aside the sentence of 13 March 2000 and in its place order that the respondent be sentenced to 12 months imprisonment suspended after four months for a period of three years.