Hodder v WA

[2005] WASCA 257

Western Australia Court of Appeal

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For Australian Law.

For indecent dealing with a child under 13 involving gestures and an obscene comment but no touching, the majority held a 16-month term manifestly excessive on the facts. Relevant features were spontaneous or opportunistic conduct, little persistence, a public place with a person in authority nearby, and the absence of similar offending for about 12 years.
Comparable indecent dealing sentences range from fines to three years' imprisonment. Higher sentences, as in McGarry v The Queen [1999] WASCA 276, were reserved for planned, persistent and sinister conduct, which distinguishes non-contact opportunistic offending.
The dissent held that intervention requires demonstrated error. It treated the child's age, the continuation of the conduct, the lack of remorse, untruthfulness, and an entrenched history of sexual offending requiring personal deterrence as making the sentence a readily available exercise of discretion.