A 67-year-old grandfather from Bunbury was fined $1000 and granted a spent conviction order despite pleading guilty to two counts of unlawful and indecent dealing on Thursday.
The Bunbury Magistrates Court was told between December 26, 2016 and January 22, 2017, the man, who cannot be named, was at home with his granddaughter who suffers a moderate disability.
The man and the girl were playing and it was claimed the man fell asleep. When he awoke with a start, he “pushed her away in fright”, touching the girl on her vagina.
The offence was alleged to have happened twice within a three-week period.
Negotiations between the prosecution and defence over a number of weeks discussed whether a charge of unlawful and indecent assault or common assault was the appropriate disposition.
Police prosecutor senior constable Karl Rep said the arresting officer was “an experienced police officer” who stood by his decision.
Magistrate Brian Mahon repeatedly described the case as “very, very unusual” and said it was difficult to weigh the penalties that come with the serious charge against the community expectations given the circumstances.
He said the grandfather showed poor judgement and while he did not wish to minimise the offence, it was one of the strangest matters he had dealt with in more than 20 years as a defence lawyer and magistrate.
Mr Mahon told the court a pre-sentence report recommended the man undergo counselling but admitted he was not likely to reoffend.
The grandfather was fined $1000 and ordered to pay court costs of $98.50.
Mr Mahon also requested the man put $1000 into a bank account for his granddaughter to access when she was older.
“I can’t order you to do that but I think it would be appropriate in this instance to request that you help to set your granddaughter up financially for the future as soon as you can afford it,” he said.
The man indicated he was happy to oblige the request.
The maximum fine for each offence was $24,000 and/or two years imprisonment.
Mr Mahon also raised the topic of a spent conviction. Senior constable Rep said he opposed a spent conviction order because the offence was alleged to have occurred twice.
Mr Mahon said the reports prepared for the court about the man had changed his view considerably and he was “quietly confident” the 67-year-old, who had never been charged with any offence before, would not return to court again.
“I’m satisfied the reoffending risk is minimal and as such I will grant a spent conviction order,” he said.
“It is rare to consider spent conviction orders for offences of this type and I make it clear that it is not appropriate to strike a child in this way.”