The Director of Public Prosecutions fileetition of appeal against the sentence imposed as being undg unduly lenient. The Respondent
filed a cross appeal against conviction and sentence.
At the hearing before me Counsel for the Respondent withdrew the cross appeal. The hearing in this court has proceeded only on the
State's appeal against the adequacy of the sentence.
The basic facts were clearly proved by the evidence of the complaiwhich was accepted by the learned Magistrate. The complainalainant
was a 9 year old girl attending a local primary school. The Respondent was the head master of that school and also the girl's class
teacher. On the 6th July 1993 the complainant was alone with the Respondent in his office. He kissed her, lifted her dress, put his
hand into her panties and poked one finger into her vagina. It was painful for her and she screamed. The Respondent withdrew his
finger and the girl left.
Such indecent offending against ng girl by a person in a position of trust must be regarded as serious. This was recognisednised by
the learned Magistrate who referred to the Respondent's betrayal of trust and the need for the sentence to reflect society's sense
of outrage. He said that he would be failing in his duty if he did not pass a sentence that reflected the seriousness of the offence.
This offending clearly cafor a prison sentence. On the basis of the numerous English authorities cited by Counsel foel for the Appellant
a sentence of 12 months imprisonment as fixed by the Magistrate is within the appropriate range. An immediate prison sentence for
that term could properly have been imposed.
The learned Magistrate decided to exercise his discretion under Section 29(1) of the Penal Code and suspend the operation of the sentence for two years. That is not a course that this court may have adopted if dealing with the
matter at first instance. However this Court cannot merely substitute a different sentence from that imposed by the Magistrate because
it is considered more appropriate for the offending. The appeal can only succeed if it is shown that the Magistrate exercised his
discretion on a wrong basis and this has resulted in a sentence that is unduly lenient to the extent of being outside the range of
sentence that could properly be imposed for this type of offending.
Section 29(1) of the Penal Code gives the Court a statutoryretion to suspend a sentence of imprisonment. This is an unan unfettered discretion and the statute does
not provide any guidance on how it is to be exercised. (This is unlike the position in England where Section 22 of the Powers of
Criminal Courts Act 1973 now provides that a sentence of imprisonment cannot be suspended unless it can be justified by the exceptional
circumstances of the case). Neither Counsel has referred me to any decision giving guidance on how the discretion is to be exercised.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> A suspended see is still a sentence of imprisonment. It is shown as such on the offenders record (See R ve R v Mark 1974 Crim. L.R.112).
The offender suffers the prospect of possible enforcement during the period of the suspension. It follows that a suspended sentence
can only be imposed when an immediate sentence of imprisonment is justified (R v English 1984 6 Cr.App. R (S) 60). There are two steps required. The Court must first determine that an immediate prison sentence is appropriate for the offence and
fix the term. If that term is not more than 2 years the Court must then go on and consider whether, in the particular circumstances,
it would be appropriate to suspend that sentence in whole or in part (R v Jeffrey 1985 7 Cr.App. R (S) 11).
In this case the learned Magistrat out at some length a number of factors that were relevant to sentence in this case. He coHe concluded
that a conviction was appropriate and that a sentence must be imposed that reflected the seriousness of the offence. Clearly that
was a prison sentence. He then went on to suspend that sentence. Although he did not specify the particular reasons for this, it
is implicit that they were the matters earlier traversed in his sentencing remarks. These included "the totality of the offending", the matters submitted in mitigation (personal circumstances of respondent, previous impeccable record, loss of career, hardworking
life and all Respondent had now suffered), the grave consequences of his automatic dismissal as he was not self employed, the agonizing
over the offending which was itself a form of punishment for the Respondent, the squandering of a professional profile and career
at such a stage in his life and the continuing suffering from the disgrace he had brought on himself and his family.
The trial Magistrate had the benefit of hearing all the evidence, being able to assess the witnesses and determine all the relevant
circumstances of the case. Nobody is in a better position to determine whether a particular sentencing discretion should be exercised.
This Court would only interfere if the exercise of that discretion is shown to be wrong in principle.
No submission was or authority cited that in this country an immediate prison sentence is invariably imposed osed in these cases and
suspension is never appropriate. Nor has there been any submission that the incidence of such offending requires special deterrent
measures. Indeed there appears to be a paucity of precedents in this country, judging by the few cases cited by Counsel.
For my part, having rego the nature of the offence, the age of the victim and the Respondents position of trust, Ist, I would not
have expected circumstances that would justify the suspension of a prison sentence. That is a lenient sentence. However the learned
Magistrate has followed proper procedures taken into account relevant matters and given reasons for his decision. On balance it has
not been shown that the exercise of this sentencing discretion was wrong in principle. The suspended prison sentence has not been
shown to be outside the range of penalties that could reasonably be imposed for this offending. Therefore, this Court cannot interfere
by way of appeal and substitute its own preferred sentence.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> However I view this decision as singularly applicable to the particular facts,umstances and submissions ions in this case. It should
not be taken as a precedent or guide for future cases.
