The Queen v Gardner[1997] QCA 292

COURT OF APPEAL

McPHERSON JA

SHEPHERDSON J

WHITE J

CA No 248 of 1997

THE QUEEN

v.

SCOTT JOHN GARDNER Applicant

BRISBANE

DATE 07/08/97

JUDGMENT

SHEPHERDSON J:  On 29 May 1997 in the District Court held at Brisbane the applicant pleaded guilty to four charges of extortion committed between 15 October 1996 and 19 November 1996 (both dates inclusive).  The learned sentencing Judge sentenced him to three years and ordered that the three-year sentence be suspended after he had served one year and that the suspension have an operational period of three years.  He applies for leave to appeal against the severity of the sentence.

The modus operandi in each offence was similar.  The applicant impersonated a policeman and attended certain public toilets.  There, he addressed each victim - they were all males - and threatened the victim with arrest if he did not comply with the applicant's demand for money. 

In the first count the victim did not have the money demanded - namely, $200 - and gave the applicant his home address.  Some three weeks later on 9 November the applicant turned up at the victim's home saying, "You have to give me the money now or I'll have to arrest you."  The victim obtained $100 from an automatic teller machine and gave it to the applicant who said he wanted the other $100 on the following Thursday. Thus, there were two oral demands made of the first victim.

The applicant approached the second victim and a similar modus operandi ensued.  The applicant mentioned sums of $600 and $1,000 and eventually the learned sentencing Judge was told a figure of $400 was agreed on.  The victim did not have this money.  He later met the applicant but it seems that no money was paid over.  On the occasion of this meeting the victim was wearing a listening device fitted by police to whom the victim had previously gone and so they were able to record the exchange between the victim and the applicant.  It appears the applicant was arrested shortly afterwards on 18 November 1996 and released on bail on the same day.  This followed the meeting with the second victim.  The very next day, 19 November 1996, he committed the fourth offence and this was a matter adverted to by the learned sentencing Judge.  Now, it was clear that the applicant when confronted by police admitted his involvement in the offences.  He pleaded guilty and the learned sentencing Judge expressly took these matters into account when fixing his sentence.

His Honour mentioned the applicant's prior criminal history saying, "You have no previous criminal history of any great significance."  To put that in context the only conviction was for unlawful use of a motor vehicle in November 1990 for which the applicant had been ordered to perform 80 hours community service.  The applicant was 23 years old at the time of sentence. 

Now, the applicant had obtained a report from a clinical psychologist named Bradley M Johnston and this was before the learned sentencing Judge.  It is dated 22 April 1997.  That report contains explanations given by the applicant for his behaviour.  I quote:

"He explains his behaviour as a one-man crusade against voyeurs and paedophiles who molest others in public toilets.  He views his behaviour as having made these locations a little safer and shows little regret or remorse for his actions other than for the distress it has caused his relatives."

I note that Mr Johnston expressed the opinion that the applicant had only a limited capacity to learn from experience and remained a moderate risk of acting in an impulsive manner in the future.

The learned sentencing Judge reviewed the behaviour which had led the applicant to come before him; he expressed the

opinion - and it appears to be a correct opinion - that none of the victims was engaged in homosexual conduct at the time each was accosted by the applicant.  The learned sentencing Judge refers to the systematic behaviour of the applicant and he says he regarded that as a bad feature of the case.  The other bad feature - to use His Honour's words - was his return to commit an offence of extortion on the very day after he had been arrested and bailed in respect of the second victim.  His Honour recognised that the applicant, to use his words:

"...saw yourself as a crusader to stamp out unacceptable behaviour.  You said that you would continue to be extremely concerned that such behaviour is still occurring openly and frequently in locations where children and other vulnerable individuals are put at risk and you cited some examples that you had witnessed.  You stated further that you realised your actions were wrong and you felt frustrated by the obvious inaction of the authorities so you decided that you should personally intervene to stamp this sort of behaviour out."

That is the explanation placed before the learned sentencing Judge and he regarded it as flimsy and unpersuasive in the extreme. 

So that at the end of the day we had what was said to be vigilante behaviour of the type to which I have referred and it encompassed blackmail of innocent law-abiding citizens. 

Mr Shanahan has pointed out that the motivation for these offences went beyond simple greed and I think that's relatively clear from the explanation given by the applicant to the psychologist and repeated in Court.  He refers to the age of the applicant and he concedes that the behaviour has exhibited certain aggravating features.  Mr Shanahan very fairly has referred the Court to a number of cases including one of the Court of Criminal Appeal, The Queen v. Renwick (unreported) CA244/91 in which judgment was given on 14 November 1991.

In that case the Chief Justice, with whose reasons other members of the Court agreed, had recited the following comments of the learned sentencing Judge:

"He said these types of offences were difficult to detect and when the culprits were found they must attract significant penalty.  By their very nature they often do not come to light.  He felt it proper in the circumstances of the case to impose a significant period of imprisonment and he accordingly ordered on each count that there be imprisonment for four years."

The Chief Justice went on to say:

"I find myself largely in agreement with the observations made by the learned sentencing Judge.  I feel no particular need to add any further descriptions.  The course of conduct engaged upon was over a significant period of time, it was very determined and represented great mischief to society and so should be very firmly discouraged."

I do not suggest the facts in the present case were as serious as those in Renwick but nevertheless the comments made by the Chief Justice are, in my view, apposite and applicable to the present case.  The law must discourage vigilante behaviour of the present type.  The more so when it exhibits blackmail of innocent law-abiding citizens.

Mr Shanahan has contended that the appropriate sentence should have been 18 months imprisonment with a recommendation for parole after serving six months imprisonment.  I have been unable to see any error in the exercise of the sentencing discretion and I have come to the conclusion that the sentence imposed was not manifestly excessive.  I would dismiss the application.

McPHERSON JA:  Yes, I agree.  This was a heartless and pitiless series of offences that were carried out by the applicant in a methodical, persistent and audacious manner in the case of one of them when the applicant was already on bail for an earlier offence or offences of this kind.  His behaviour was exacerbated by his using the pretence of being a policeman or having police authority in order to over-awe victims who he seems to have chosen for their timidity or youth or other indications that they might succumb to his demands.  His motivation, whatever else may be said about it, was to obtain money.  I would refuse the application for leave to appeal.

WHITE J:  I agree that the application should be refused for the reasons expressed by the learned presiding Judge and also Mr Justice Shepherdson.

McPHERSON JA:  The application for leave to appeal is dismissed.