R v Dixon[1999] QCA 251

COURT OF APPEAL

McMURDO P

PINCUS JA

THOMAS JA

BRISBANE

DATE 07/07/99

JUDGMENT

THOMAS JA:  The applicant was convicted of child stealing, namely the forcible taking away of a seven year old child with intent to deprive her parents of her possession.  He seeks leave to appeal against a sentence of five years' imprisonment.  The maximum penalty for the offence is seven years.

The applicant is 27 years old and has a minor criminal history consisting of two possessions of a pipe and some other minor offences, none of which has attracted more than a fine.

On the evening in question at about 7 o'clock a seven-year-old girl was playing on the footpath in a shopping area in Bundaberg with her 10-year-old brother.  Their father had left them briefly in order to collect his wife from a chiropractor's office.  At that stage there were no other cars about. 

The applicant drove up to where the little girl was playing, moved quickly out of his car and grabbed her.  He put his hand over her mouth, told her to shut-up and not to scream and pointed towards his car.  Notwithstanding his threat she screamed and struggled.  Her father heard her screams and calls for help from her brother.  He saw the applicant and his daughter in the passenger seat of the applicant's car apparently still struggling. He punched the applicant and the girl escaped. 

The applicant, however, persuaded the father that another man had in fact attacked the girl and that he was only helping to save her.  He later drove off.  Fortunately the girl's father took the number of his car.  Various witnesses had seen the applicant grab the girl and drag her struggling and screaming into his car.  The police were notified but four weeks elapsed before the applicant was spoken to by the police.  When apprehended he denied the offence, claiming that he had merely intervened to help the girl.

After he was charged he initially claimed to have no recollection of the offence saying to a psychiatrist that he had suffered a blackout as the result of excessive intake of drugs.  However, it would seem quite clear that there was some sexual motivation behind the abduction despite these initial claims.  He subsequently told a psychologist, Mr John, that before the event he had been reading something like Penthouse magazines and had started to feel lonely.  He said:

"I thought I'd head off to the van ... started driving home ... a little bit sexually aroused ... wanted to be with someone ...  That's when I came across the girl in the street ... No prior thoughts ... I wasn't going to hurt anyone ...  She would have been okay ... I only wanted someone to talk to ..."

Mr John noted that he was not prepared to acknowledge responsibility or explain his actions and expressed the opinion that:

"These statements represent total dissimilation of his actual motives.  As such I believe Mr Dixon continues to constitute an appreciable risk for re-offending in circumstances similar to those surrounding the current incident."

Victim impact statements reveal that there has been a significant impact upon the girl and the remainder of her family.  They all feel very insecure and disturbed. The complainant has regressed and the former lifestyle of the family has changed for the worse.

The applicant's claim is that he was highly affected by a cocktail of drugs and that he did not remember the incident.  This is not an excuse and in any event the claims are not very convincing.  At the time he was instantly able to offer facile denials to the child's father and subsequently to the police. Later on he told one story to Dr Alroe and another to the psychologist, Mr John, concerning his drug intake.  On the latter occasion he said that he had injected amphetamine some time prior to this offence, but that that was in fact his first exposure to that drug.  He said that he had "told Legal Aid that he had done speed for days to be a smart-arse".

Some factors have been urged in mitigation.  It was contended below that he took the child because he was missing his own family and was lonely and was in a severely drug-induced state. Those particular submissions were not really pressed here, but I find necessary to say that such submissions are quite unpersuasive.  

It was further submitted below that he suffered from a lung disorder and that he was in a bad state of health.  He has a wife and two infant sons and is a pensioner, although he is capable of part-time employment.  Dr Alroe reports that when he was nine years old he suffered brain damage in a car accident and that his schooling was disrupted.  He, however, achieved literacy and psychological testing shows that he functions adequately.  Dr Alroe did not note any obvious physical or neurological impairment and observed that he was alert, conscious and oriented.  He found no evidence of depression on impaired reality testing, speech perceptual disturbance or abnormal motor activity.  He concluded that there was no evidence that the applicant suffers from any form of endogenous mental disorder and stated his psychiatric diagnosis as "multiple drug dependence in a personality with mixed anti-social and dependent traits".  He added that "his character is such that it predisposes him to commit minor offences, and this tendency is likely to continue."

The applicant does have a past history of having been sexually abused himself, particularly by his last stepfather, and he appears to come from a deprived background.  However, it is not possible to relate these circumstances to any explanation of his conduct.

Finally, it is to be noted that he pleaded guilty at a very early stage upon ex officio indictment.  That, in my view, is his best point, and it certainly entitled him to some consideration from the Court.

It is true, as the learned sentencing Judge acknowledged, that in an absolute sense it is impossible to know what the applicant would have done with the child but he considered that there was a significant risk that the child would have been sexually assaulted.

Child stealing is a very serious offence, although I note that the current maximum penalty without any particular circumstance of aggravation is fixed at seven years' imprisonment.  The thought of abduction of a child is something that is feared by all parents and, it would seem, with some growing justification.  In this case, the offender used his greater strength to overcome the child's resistance and he persisted despite her struggles.  At the time he was able, adroitly, to deflect attention from himself and to escape.

It was submitted on his behalf that a penalty of five years indicates that the learned sentencing Judge considered that this offence was towards the upper end of seriousness for such offences and that he must have been sentenced on the basis of what he might have done.  In my view, one does not need to go further than to note that sexual exploitation of some kind was in his mind and that the danger of events progressing to a disastrous level in such a situation is very real.  The fact that he was interrupted before further events transpired is a matter of good fortune for all concerned but it hardly diminishes his moral culpability. 

With respect to a crime of this kind, the need for general deterrence can hardly be overstated.

We were referred to a number of decisions including The Queen v. Butler, CA 196 of 1996, August 1996 and The Queen v. Jackaway ex parte Attorney-General, CA numbers 9 and 19 of 1996, 18 October 1996.

Butler was sentenced to six years for child stealing and eight years for substantive sexual offences upon the 11 year old girl whom he abducted.  There was a recommendation for consideration of parole after three years in that case which must be regarded as a more serious one than the present because of the actual serious sexual molestation which actually ensued.  However, I do not think that Butler or, for that matter, Jackaway, ought to be regarded as setting a benchmark in cases of this kind.

The present case contains the additional factor that there seems to be at least an appreciable risk of re-offending even though, apart from this isolated instance, there is no evidence of any sexual activities by the applicant other than normal heterosexual activity.  However, the psychiatric and psychological reports to which I have earlier referred suggest that he has not been able or willing to explain his behaviour and there is this risk of further offending.

It is not possible to frame a sentence in a case like the present one which will give the community full protection against further misconduct but, subject to the need for proportionality, the protection of society is a factor to be regarded in the sentencing discretion in an offence of violence such as this.  (See sections 9(3) and 9(4) of the Penalties and Sentences Act; and compare Veen v. The Queen (No 2) (1987-1988) 164 C.L.R 465.)

Taking all these factors into account, including the significant impact upon the young girl and her family, I do not consider that the five year sentence was in any way excessive, notwithstanding his early plea.

I would refuse the application.

THE PRESIDENT:  I agree.

PINCUS JA:  I agree.

THE PRESIDENT:  The order is the application for leave to appeal is refused.