The Queen v Widdon[1998] QCA 166

COURT OF APPEAL

DAVIES JA

DERRINGTON J

WHITE J

CA No 46 of 1998

THE QUEEN

v.

DAVID ROY WIDDON (Applicant) Appellant

BRISBANE

DATE 15/05/98

JUDGMENT

DAVIES JA:  The appellant was convicted after a trial in the District Court at Brisbane on 28 March this year on three counts of indecent dealing with a child under the age of 16.  He was sentenced to three years imprisonment.  He appeals against those convictions and seeks leave to appeal against that sentence which was imposed in respect of each of the offences.

At the time when each of the offences was alleged to have been committed, the appellant was 37 years of age and the complainant, who was the same in respect of each offence, was between 14 and 15 years of age.  The first of these offences is said to have occurred some time after 8 June 1995, the second of them some time also in 1995 and the third on 20 February 1996.  The complainant was a troubled young boy who had been placed in the care of the Department of Family Services and was through most of this time a resident of Boystown.  He had previously been sexually corrupted by another man and, it seems, had been passed on to the appellant.  He first met the appellant in 1993 and thereafter visited his residence at Sandgate from time to time.

The date of the first offence can be fixed to the extent to which I have indicated by reason of the fact that, immediately prior to its commission, the applicant and the complainant had watched a movie "Pulp Fiction" which they had hired.  It was released for hire in video shops in 8 June 1995.  The date was further particularised as a Saturday.  The complainant said that he visited the applicant that day.  They smoked marijuana.  Later they went out, bought a pizza and hired the movie.  They then returned to the applicant's residence where they ate the pizza, smoked some more marijuana and watched the movie.  They then watched a pornographic movie and went to bed in the same bed, neither wearing any clothing.  They engaged in mutual masturbation.

The next offence was identified by the complainant as an occasion on which he again visited the applicant and they hired the video "True Lies."  Again they engaged in mutual masturbation and the complainant thought they also engaged in oral sex on this occasion although he was not certain of this.

The last offence according to the complainant occurred some time around his fifteenth birthday on a Tuesday night on which they watched a television program "Blue Heelers".  The complainant thought it may have been 20 February 1996 and that was indeed a night on which "Blue Heelers" was shown.  Again they engaged in mutual masturbation and also in oral sex.

The sole ground of the appeal against conviction is that the verdict was unsafe and unsatisfactory.  In fact the case involved a conflict of evidence between the complainant and the appellant both of whom gave evidence.  The jury plainly believed the complainant and rejected the evidence of the appellant who said that, though the complainant visited him on occasions, no sexual misconduct occurred.

There were, it is true, some inconsistencies in the complainant's evidence.  In respect of the first offence the complainant did not say in his earlier statement that the appellant showed a pornographic video but said so in his evidence.  In respect of the second offence the complainant said in his statement that oral sex took place whereas in his evidence he could not be sure of this.  And with respect to the third offence he said in evidence that oral sex took place whereas he did not mention this in his earlier statement.  When asked about these inconsistencies he said that he had a mental block or a nervous block about the events on these occasions. 

In my view the inconsistencies are minor, such as one might ordinarily find in the recollection of honest witnesses.  Moreover the explanation given that, in effect, the complainant unconsciously suppressed his memory of these events is a credible one.

This was a case in which the jury had the advantage of seeing and hearing the two witnesses and there's nothing unsafe or unsatisfactory, in my view, in their acceptance of the evidence of the complainant.  So far as I can see from reading it in transcript it appears credible.

I would therefore dismiss the appeal. 

The appellant has a number of previous convictions.  In 1987 he had two convictions for stealing, two for breaking, entering and stealing and one each of receiving, forgery and uttering.  He  received sentences of probation and community service for these offences.  Then in 1996 he was convicted of supplying a dangerous drug and possession of a dangerous drug and fined $2,000.  And on 15 January 1997 he was convicted of possession of a weapon whilst not being the holder of a licence and of failing to take precautions to secure weapons and he was fined $300.  He has no convictions for any sexual offences and he has never before been sent to gaol.

Although, as I have indicated, the complainant had previously been corrupted sexually and it is plain that he was a willing participate in the offences, nevertheless the appellant took advantage of him in a vulnerable state and callously exploited him.  Moreover he has shown no remorse for his conduct.

It has previously been said in this Court that it is difficult to reconcile all of the sentences which have been imposed for offences of this kind.  Cases such as Pinder (CA No. 314 of 1992, 4 December 1992), Vidot (CA No. 262 of 1992, 20 October 1992), B (CA No. 360 of 1994, 26 October 1994), Kirwan (CA No. 89 of 1995, 21 April 1995) and Spillman (CA No. 24 of 1996, 26 February 1996) tend to show that the sentence imposed here was very high and probably outside the appropriate range.  Counsel for the respondent has quite properly conceded that the sentence here appears to be towards the top of the range for an offence of this kind even though he contended it was nevertheless appropriate having regard to all the circumstances.  His submission does not, in my view, derive support when one looks at the authorities as a whole although as he has submitted the cases of T (CA No. 215 of 1993, 12 August 1993) and Goulding (CA No. 154 of 1994, 3 August 1994) best support his submission.  Those cases are, in any event, not comparable here, involving more serious conduct than in this case.

Sexual exploitation of young people is always serious but there are degrees of seriousness.  Here the boy, who was nearly 15, was a willing participant and was not either physically harmed or threatened by the appellant.   When one has regard also to the absence of any relevant previous convictions, the sentence of three years, in my view, is manifestly excessive in the light of the overall trend of sentences for such offences.  His Honour may have been misled in imposing the sentence which he did by the statement which was made to him as to the effect of Pinder, it being submitted to him that it was an isolated offence whereas, in fact, it involved multiple offences.  Serious though the appellant's conduct was, I do not think it justified a sentence as high as that.  I would accordingly grant the application for leave to appeal against sentence, allow the appeal and substitute a sentence of two years imprisonment on each count.

DERRINGTON J:  I agree.

WHITE J:  I agree.

DAVIES J:  The orders are as I have indicated.