R v H; ex parte Attorney-General of Queensland
[2001] QCA 262
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- R v H; ex parte Attorney-General of Queensland[2001] QCA 262
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R v H; ex parte Attorney-General of Queensland[2001] QCA 262
R v H; ex parte Attorney-General of Queensland[2001] QCA 262
COURT OF APPEAL
McMURDO P
DAVIES JA
THOMAS JA
CA No 57 of 2001
THE QUEEN
v.
TERRY ALLAN HANCOCK Respondent
and
ATTORNEY-GENERAL OF QUEENSLAND Appellant
BRISBANE
DATE 09/07/2001
JUDGMENT
DAVIES JA: The respondent pleaded guilty in the District Court at Townsville on 20 February this year to the offence that between 1 March 1998 and 2 April 1999 he maintained an unlawful sexual relationship with his stepson then aged nine and that in the course of that relationship he unlawfully and indecently dealt with that child.
On 24 February he was sentenced to imprisonment for one year to be served by way of intensive correction in the community, subject to a number of requirements. He served a little over four months of that term.
The Attorney-General appeals against that sentence, submitting that nothing less than a term of actual imprisonment was justified for this offence.
In the circumstances, including the fact that the respondent has served part of his sentence, the Attorney contends for a sentence of two and a half years' imprisonment with either a recommendation for parole or suspension after nine months.
The conduct constituting the offence consisted of the respondent fondling the child's penis on about 30 occasions. The individual offences constituting this offence followed a uniform pattern. The respondent would enter the child's bedroom at night, fondle his penis, and then leave. The occasions on which he did so occurred over about 12 months, initially once a month but increasing in frequency to as much as twice a week.
There was no violence, either actual or offered, and no threats, and when asked to desist by the complainant on each occasion, the respondent did so.
The offences were discovered when it emerged that the child was considering running away from home. His mother asked him why he would do this and he then told what had happened. He later gave the police an interview.
When confronted by his wife, the complainant's mother, the respondent admitted his guilt and although the matter did not proceed by way of ex officio indictment, it was accepted that his plea of guilty was an early one and the complainant was not required to give evidence.
It is unclear whether the offences had any lasting effect on the complainant child. No victim impact statement from the child was tendered although one from his mother was, and it appears from that and her evidence that she has done everything that could possibly be done to assist the child in his recovery from this trauma, including some psychological counselling.
It is plain in the circumstances that the child was traumatised by the event to the extent that he was considering running away from home but, in the circumstances, I would be disinclined to infer that there is a significant likelihood that the child will have any long term sequelae.
The respondent was seen by a psychiatrist, Dr James, apparently for the purpose of these proceedings. While readily admitting his involvement in this conduct to the doctor, the respondent seems to have been quite unable to explain what motivated him, denying any sexual attraction for the complainant or any sexual stimulation from the incident which occurred.
The absence of any satisfactory explanation for his conduct undoubtedly must make treatment questionable and casts some doubt on the likelihood that when placed in the same position again he would not attempt to resume this conduct.
On the other hand, he appears to be committed to undergoing treatment and is in the course of being counselled at the present time. He has expressed remorse for his conduct and a keenness to undergo treatment.
It must also be said that, on the material before the sentencing Judge, it appeared that the complainant child was once again comfortable in the company of the respondent and, indeed, from time to time had sought it out.
Understandably, the respondent's wife, the mother of the complainant, believes that the best solution for all concerned is that the respondent rejoin the family unit and, presumably, that is what has occurred. There is no suggestion that there has been any repetition of this conduct.
The respondent is 40 years of age. He was 38 at the time of commission of this offence. Like many offenders in this situation, he has no prior criminal convictions. He has had a very good work history. He has supported his wife and a mixed family of his own and his wife's children.
The main contention for the appellant by Mr Byrne QC is that, in the absence of exceptional circumstances, an offence of this magnitude requires the imposition of an actual term of imprisonment, at least as a general deterrent, and that there are no exceptional circumstances here.
Comparable authorities to which we have been referred and of which we are aware support the submission that offences of this magnitude ordinarily require a period of actual custody as part of the sentence. However, when one comes to look at the cases, it must be accepted that there are none which are closely comparable to this and that the sentences in these cases vary widely.
Mr Byrne relied principally on two. The first of them was R v. Larson ex parte Attorney-General, CA No 373 of 1998 and the second was R v. M ex parte Attorney-General, [2000] 2 QdR 543. Both of them were Attorney appeals.
In the first of those cases, this Court increased a sentence on a 38 year old offender who had pleaded guilty to two offences of indecent dealing committed against a 10 year old boy who was the son of friends. The sentence originally imposed was one of 15 months' imprisonment suspended for four years on one count and probation on the other.
There, this Court imposed a sentence of actual imprisonment of 12 months to be suspended after three months with an operational period of two years. In that case, there was evidence of remorse, a previously unblemished personal record and some explanation for the offence in the offender's personal circumstances arising from a recent breakdown of his own marriage. However, there was said to be some serious and possibly long-term effects on the complainant boy.
The important differences between that case and this are, it seems to me, in the respondent's favour here, no evidence of long-term effects on the complainant, and against him that the offences in Larson were of indecent dealing only. Importantly, in this case, is the fact that the offence to which the respondent pleaded guilty is an offence of maintaining.
The other case relied on is R v. M. The circumstances there were that there were two offences committed on successive nights on the complainant who was a seven year old boy who was a nephew of the respondent who was at the time living with the boy's family.
They involved the respondent going into the boy's bedroom, sucking the boy's penis, and on the following night fondling it. The Court was not prepared to assume there were no long-term effects in that case and the actual conduct in that case was more serious than in this.
Of course, Mr Byrne points out that the conduct in this case was more repetitive, that here the respondent was the stepfather of the complainant. On the other hand, Mr Moynihan, who appeared for the respondent, relied principally on two cases, R v. T and R v. L.
R v. L CA No 428 of 1999 was a case in which there were two complainants, both girls, and the conduct involved in that case was digital penetration, and Mr Moynihan points out that although in that case there were only two offences, there was a six or seven year gap between the two which indicated that there was no rehabilitation in the offender between the two events. Neither of the sentences which were imposed in that case was such as to involve a period of actual imprisonment and the Attorney's appeal was dismissed by this Court.
In the other case, that is R v. T CA No 113 of 2000, the offending conduct was a great deal worse than in this case. It involved a girl child under the age of 12 who was the grand-daughter of the respondent, and the conduct persisted over a period of five years. It was a maintaining offence as this was. The conduct in that case became gradually worse. It involved simulated intercourse, although no ejaculation in the presence of the child. It continued up until the child was 12 years of age.
The case, however, was curious in the sense that the child never made any complaint. It was the respondent himself who confessed first of all to a minister of the church, then to a counsellor, and finally to the police. He underwent counselling voluntarily and the case is more curious for the fact that there was never a complaint made and in fact no complainant in the case and the Court was left to sentence the respondent without the existence of any complaint or victim impact statement from the complainant. In that case the Court had considerable hesitation in refusing the appeal by the Attorney against a non-custodial sentence in that case.
The circumstances in this case do not involve, in my opinion, any one special circumstance. Mr Moynihan, for the respondent, points to a number of circumstances, the aggregation of which he said involve special circumstances. One of them was that the conduct in this case is towards the lower end of the range of conduct of this kind and that is undoubtedly correct, that there was only one child involved, that the respondent had a good job and supported the family, that he has undergone counselling and there is perhaps some cause for optimism as to the progress of that.
But it seems to me the most important factor in the respondent's favour here is not simply the wishes of his wife and family, but the evidence of his wife and conduct of his wife which appears to have been very measured and responsible in this matter. She, at first, ensured, once the complaint was made, that there was no conduct between the respondent and the complainant child and he was obliged to leave the house.
She immediately secured counselling for the young child and consequently her attitude towards her husband thereafter must be viewed in the light of her responsibility in this respect and her view plainly is, and his Honour no doubt placed considerable weight on this, that the interests of the family would be best served by this man, with appropriate treatment, being restored to the family and undergoing his punishment in those circumstances. This is, for that reason, an unusual case.
Nevertheless, had I been sentencing the respondent on this case, I would have thought that a more appropriate sentence would have been a short term of imprisonment followed by a period of probation. In the circumstances, however, including the fact that the respondent has served more than four months of the sentence of 12 months' imprisonment which has already been imposed on him, and the factors which I have just mentioned, I do not think that this Court should interfere with the sentencing discretion of the learned primary Judge and accordingly I would dismiss the appeal.
THE PRESIDENT: I agree.
THOMAS JA: I agree.
THE PRESIDENT: The order is the appeal is dismissed.