R v T; ex parte Attorney-General
[2001] QCA 398
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- R v T; ex parte Attorney-General[2001] QCA 398
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R v T; ex parte Attorney-General[2001] QCA 398
R v T; ex parte Attorney-General[2001] QCA 398
COURT OF APPEAL
de JERSEY CJ
CHESTERMAN J
MULLINS J
CA No 118 of 2001
DC No 16 of 2001
| T | Respondent |
| v | |
| ATTORNEY-GENERAL OF QUEENSLAND | Appellant |
BRISBANE
DATE 24/09/2001
JUDGMENT
MULLINS J: The Attorney-General appeals against the sentence imposed by the learned sentencing Judge on 27 April 2001 on the respondent, for six counts of indecent treatment of a girl under sixteen years with a circumstance of aggravation that the complainant was under the age of 14 years.
The respondent was convicted after a trial in which the complainant gave evidence. The respondent faced a further count during that trial of rape on which the jury failed to agree on a verdict and that charge has subsequently been discontinued. The one sentence was imposed in respect of the six counts which was a term of imprisonment for 18 months wholly suspended for an operational period of three years.
The respondent was born on 16 March 1947. He married the mother of the complainant in January 1978. The household then became the respondent, his wife, her two daughters including the complainant, and the respondent's two sons from a previous marriage. There was also a child of the relationship between the respondent and the complainant's mother.
The offences occurred over a period of two years in 1983 and 1984 when the complainant was between eight years and 10 years old. The evidence of the complainant in respect of the offences of which the respondent was convicted was - Count 1 - the respondent pinched the complainant near the vagina; Count 2 - the respondent cupped his hand under the complainant's vagina; Count 3 - the respondent took the complainant from her bath and placed her on a bunk bed and inserted a finger in her vagina; Count 4 - the complainant entered the laundry where the respondent was and he got her to masturbate or to assist to masturbate him; Count 5 - while holidaying on Stradbroke Island the respondent invited the complainant into his bed and penetrated her vagina with his finger; Count 7 - in the respondent's bedroom the respondent lay on top of the complainant and rubbed his penis in the area of her vagina.
The respondent gave evidence at the trial in which he denied the conduct the subject of each of the six counts. He did admit in his evidence to touching the complainant on three occasions but his description of the touching and the circumstances in which it occurred did not accord with any of the counts on the indictment.
The complainant did not report the respondent's conduct to her mother until 1989. It was then reported to the police and statements were taken from the complainant. Prosecutions were not commenced at that time. The explanation may lie in the fact that after the complainant's mother became aware of the respondent's conduct the respondent left the matrimonial home but there was a reconciliation some four to six weeks later and the household continued as it had before the short period of separation until 1995 when the marriage broke down.
The mitigating factors which the learned sentencing Judge took into account were that the respondent had ceased the offending conduct by the end of 1984 before it became known to others; even when the respondent's conduct was known both to the complainant's mother and the police the complainant's mother was prepared to resume cohabitation with the respondent and to accept the respondent's support for her and the children of the household including the complainant; the delay between the complaint being made to the police and the prosecution being commenced in 1999 left the respondent in a state of uncertainty; and the respondent's work record was exemplary and he had been a good provider for his wife and children. The respondent also had no prior convictions.
The learned sentencing Judge found that the reliance of the Prosecutor on the fact that the respondent did not plead guilty to the six counts on which he was found guilty by the jury was diminished, if not eliminated, by the fact that the respondent indicated a preparedness to plead guilty to counts one to four on the indictment prior to trial but the Crown was not prepared to accept such a plea.
The learned sentencing Judge accepted the submission of the Prosecutor that a sentence of imprisonment of up to two and a half years, with part of it at least to be served in actual custody, was within range. In view of the mitigating factors identified by the learned sentencing Judge his Honour acceded to the respondent's counsel's submission that the sentence be wholly suspended.
The Attorney-General argues that the sentencing process miscarried as the learned sentencing Judge was mistaken in treating the preparedness to plead guilty to four counts on the indictment as akin to a guilty plea which overlooked that the complainant was cross-examined in relation to each of the counts including the counts on which the respondent had indicated a preparedness to plead guilty and the respondent gave evidence in which he denied having committed any of the offences including the four counts to which he had offered to plead guilty.
The respondent argues that the learned sentencing Judge's remark with respect to the respondent's offer to plead guilty to counts 1 and 4 was made in the context of dealing with a submission of the Prosecutor that a factor which distinguished the respondent's case from the comparable cases relied upon by defence counsel was that pleas of guilty had been entered in such cases and that in any event, relying on Marshall [1995] 1 Qd R 673, an unaccepted offer to plead guilty may constitute a mitigating factor.
In addition the respondent argues that, having regard to the general approach to appeals against sentence by the Attorney-General, it is not appropriate to now send the respondent to prison.
There is an identifiable error in the sentencing process undertaken by the learned sentencing Judge. It was an error to treat the preparedness to plead guilty to counts 1 to 4 on the indictment prior to trial as eliminating the fact that the respondent pleaded not guilty. It is apparent from the conclusion of the sentencing Judge to suspend the term of imprisonment wholly that the respondent was given the benefit of leniency which ordinarily flows from a plea of guilty despite the fact that he pleaded not guilty to the six counts, gave evidence denying the offences and the complainant was required to give evidence.
The respondent relies on Siganto v. The Queen [1998] 194 CLR 656 at 663 to submit that the fact that the respondent pleaded not guilty did not expose him to the risk of a more severe sentence than would otherwise be the case. That has no application where the error in the sentencing process was giving the respondent greater leniency than the relevant circumstances of pleading not guilty entitled him to.
Apart from this error, which has been identified, it was open to the learned sentencing Judge to take account of the numerous mitigating factors favouring the respondent. As the learned sentencing Judge noted, it is also important in cases such as this to give proper recognition to the denunciatory aspect and the deterrent aspect of sentencing. It is only in exceptional cases that a person convicted of such offences as the respondent avoids serving an actual period of imprisonment.
I accept the submission of the Attorney-General that even allowing for the matters of mitigation in favour of the respondent and the fact that this is an appeal by the Attorney-General, an actual custodial sentence is still called for. I would therefore allow the appeal and substitute a sentence of 18 months imprisonment suspended after six months for an operational period of three years.
THE CHIEF JUSTICE: I agree. The learned sentencing Judge plainly erred in assessing any significance of the offers to plead guilty. Those offers had no ultimate significance to the sentencing in my view. The Judge appears, because of those offers to plead guilty, to have treated the respondent leniently, but the respondent went to trial on the four counts to which he offered to plead guilty, contested them and was convicted on those and two others.
The foreshadowed pleas not maintained were not indicative of remorse and did not in the circumstances appreciably save the State resources. The gravity of this conduct meant that the respondent should have been actually imprisoned notwithstanding the other relevant considerations in the case, particularly delay. The need to imprison the respondent in the interests of deterrence and denunciation warrants our allowing this Attorney's appeal. I agree with the order proposed.
CHESTERMAN J: I agree with the order proposed and with the reasons given by the Chief Justice and by Justice Mullins.
THE CHIEF JUSTICE: The order will be as indicated by Justice Mullins and a warrant should issue for the arrest of the respondent.
MR RAFTER: Would your Honour order that it lie in the registry for seven days?
THE CHIEF JUSTICE: To lie in the registry for seven days pending execution.