R v Davidson; ex parte Attorney-General
[2009] QCA 283
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- Unreported Judgment
- Appeal Determined (QCA)
- R v Davidson; ex parte Attorney-General[2009] QCA 283
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R v Davidson; ex parte Attorney-General[2009] QCA 283
R v Davidson; ex parte Attorney-General[2009] QCA 283
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | |
DELIVERED EX TEMPORE ON: | 18 September 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 September 2009 |
JUDGES: | Keane, Holmes and Chesterman JJA |
ORDER: | Appeal dismissed |
CATCHWORDS: | Criminal law – appeal and new trial – appeal against sentence – appeals by crown – other matters – where respondent pleaded guilty to one count of indecently dealing with a child under 12 years – where respondent sentenced to nine months imprisonment, to be served by way of intensive correction order – where respondent had no criminal history, pleaded guilty to an ex officio indictment, desisted when complainant asked him to and offending at lower end of range of indecent dealing offences – where complainant’s father assaulted respondent, causing him permanent impairment and loss of his livelihood – whether this extra-curial punishment, with the other mitigating factors, warranted a non-custodial sentence – whether sentence imposed was a proper one R v Daetz (2003) 139 A Crim R 398; [2003] NSWCCA 216, cited |
COUNSEL: | A W Moynihan SC, with L P Brisick, for the appellant |
SOLICITORS: | Director of Public Prosecutions (Qld) for the appellant |
KEANE JA: Justice Holmes will deliver her reasons first.
HOLMES JA: The Attorney-General appeals against a sentence of nine months imprisonment, to be served by way of an intensive correction order, imposed on the respondent in respect of one count of indecently dealing with a child under 12 years.
The respondent was aged 41 at the time of the offence. He did not have any previous convictions. According to an agreed schedule of facts, he had been watching football and drinking alcohol at the home of a friend one evening in June 2008. At about 11.00 pm he entered the bedroom of his friend's 10 year old son. He massaged the child's penis under his clothing, waking him. He remarked, "You're a pretty boy." He had a play arm wrestle with the child, offered him a small present and then said, "Show me how big your willy is and I'll show you how big mine is." The child refused and asked the respondent to go away because he was tired. The respondent did so.
Later that night, the child told his father what had happened. He set upon the respondent, throwing him on the ground several times, causing him to strike his head on the concrete driveway. Continuing the assault, he kicked the respondent in the head a number of times, knocking him out and causing multiple facial fractures which required reconstructive surgery. A number of fixing devices, screws and plates, remains in the respondent's face. A neurosurgeon, reporting six months after the incident, diagnosed a closed head injury resulting in cognitive deficits and chronic post-traumatic headaches. He said the respondent's symptoms of headache, short-term memory loss, fatigue and loss of concentration were unlikely to resolve.
The respondent had a number of professional qualifications as a diver and had run his own business undertaking underwater repairs and cleaning of boats over some 14 years. He was unable to continue with the diving work because of his head injuries and was forced to sell the business. Unfortunately, the purchaser had defaulted, leaving the respondent with little in the way of sale proceeds and dependent upon social security. At the time of sentence he was undertaking rehabilitation with the hope of re-entering the workforce.
The child's mother wrote a victim impact statement. She said that having formerly been an outgoing child, the complainant was now reluctant to engage with male friends and relatives, was angry and had suffered some nightmares.
The learned sentencing judge noted that in the ordinary course it was to be expected that adult offenders who committed sex offences against children would receive a gaol sentence and serve some period of actual custody; but he identified a number of exceptional circumstances warranting a different result. They were: the respondent's plea of guilty to an ex officio indictment; the fact that he desisted from his criminal conduct when the child refused; and the serious injuries occasioned by the father's assault, producing permanent impairment and the destruction of the respondent's livelihood. These facts, together with the respondent's age and lack of criminal history, led him to conclude that the appropriate sentence was one of nine months imprisonment, to be served by way of an intensive correction order, which included a condition that the respondent undertake as directed any medical, psychiatric or psychological treatment in respect of sexual offending considered appropriate.
The appellant acknowledges that all the factors identified by the learned sentencing judge were appropriately taken into account as mitigating features, but submits that by ordering the sentence to be served in the community, the learned judge failed to give weight to the seriousness of the offence, considerations of general deterrence and denunciation and protection of the community.
The respondent, on the other hand, says that the circumstances of the offence placed it at the lower end of the range of indecent treatment offences. The Crown had submitted for a head sentence in the vicinity of 12 months imprisonment; the respondent's otherwise good character and plea of guilty would have justified release after a third, so that, absent the assault and its consequences, only a short term of actual custody would have been imposed. The lifelong consequences of the assault, in the form of the respondent's injuries and loss of his business, amounted to exceptional circumstances which, taken with the other mitigating factors, warranted a sentence not involving actual incarceration.
The Court was referred to four cases. The first was R v Quick; Ex parte Attorney-General (Qld) (2006) 166 A Crim R 588, for the proposition not in dispute here that the sexual abuse of children should ordinarily result in detention in custody of the offender in the absence of exceptional circumstances. The second, R v Daetz (2003) 139 A Crim R 398, is a decision of the New South Wales Court of Criminal Appeal, in which that Court, after an extensive review of the authorities, concluded that “serious loss or detriment” that the offender had suffered as a result of having committed the offence, which might be by way of “extra-curial punishment” by individuals exacting revenge, should be taken into account on sentence. It was necessary to do so in order to ensure that the offender's punishment was not excessive.
A similar approach was adopted in this State before Daetz was decided (as authorities reviewed in that case demonstrate) and continues to prevail. In the third case cited here, R v Hannigan [2009] QCA 40, Justice Chesterman described the theory underlining the relevance of extra-curial punishment as its effect in deterring an offender from re-offending, by leaving him with a reminder of the consequences, which might be a disability or affliction. In Hannigan, the principle had no application, because the offender was oblivious to the assault on him and had no lasting symptoms.
Another recent acknowledgement of the significance of extra-curial punishment may be found in the fourth case, R v Roberts [2009] QCA 22. There, the appellant had been convicted of two offences of indecent treatment of eight and nine year old complainants. He had tried to remove their pyjama pants while they were sleeping. After discovering his conduct, the children's stepmother and a friend assaulted him with an iron bar and a bottle, leaving him with bruising. The Chief Justice, with whose reasons Justices Chesterman and Atkinson agreed, observed that the relatively minor nature of the offending, the appellant's otherwise stable circumstances and the beating he had endured might have justified not actually imprisoning him; but, he said, the combination of circumstances did not constrain the sentencing judge to refrain from imposing (as he did) a period of actual custody.
In the present case, the offending was at the lower end of the range of offences of this type. The conviction and the head sentence imposed served as an appropriate denunciation of the conduct. Community protection did not loom large, given that this was a first offence. There were strong mitigating factors in the form of a plea to an ex officio indictment and the respondent's absence of any criminal history; and there were undoubtedly exceptional circumstances, in the form of his suffering lasting disability and economic disadvantage from the attack by the child's father. Had it not been for the last factor, the result might have been something in the order of a sentence of nine months imprisonment, with release after three months. Its significance as a punishment and its function by way of deterrence required acknowledgment; requiring service of the term by way of an intensive correction order as opposed to actual custody was an appropriate means of acknowledgment.
The sentence imposed by the learned sentencing judge was, in my view, the proper sentence.
I would dismiss the appeal.
KEANE JA: I agree.
CHESTERMAN JA: I agree.
KEANE JA: The order of the Court is appeal dismissed.