The Queen v Sivell[1999] QCA 506

THE CHIEF JUSTICE:  The applicant, who was then a 33-year- old man, pleaded guilty in the District Court to two offences, procuring a child under 16 years of age to commit an indecent act and exposing a child under 16 to an indecent act.  He was then sentenced to 18 months' imprisonment, suspended after six months for an operational period of three years.  He seeks leave to appeal on the ground that the sentences were manifestly excessive.

The circumstances of the offences were these:  the applicant was engaged in photographic work on the Gold Coast.  In July 1998, the 12-year-old complainant and her 10-year-old sister were riding home from nearby shops when they rode near to the applicant.  He said he was waiting for some girls to do modelling for him.  He offered them $500 if they were prepared to pose for him.  They initially declined, but then agreed.  He attempted to find a secluded place, and finally chose some buildings near netball courts.  He told the 10 year old to maintain a look-out and not to look at what he was doing.

He commenced by asking the 12 year old if she had experienced a sexual relationship, and the colour of her underarm and pubic hair.  He was carrying a plastic bag with lacy underwear and underclothing, other clothing, as well as a camera.  He directed her to remove her jumper, leave her bra on at that stage, and to dress in blue underwear and a skirt.  He directed her in poses which became more revealing before directing her to pull the underwear to one side and rub her vagina.  She complied, fearful of the applicant. 

He then told her that he had to take photographs of himself for a magazine.  He gave her the camera and instructed her in taking photographs of him as he removed his pants and exposed himself.  He then masturbated.  He told her to come closer for a close-up shot, but they were then interrupted by the approach of a group of boys, at which he desisted and went off.

He was subsequently identified by photo-board, and refused to be interviewed.  A statement by the complainant's father and a note by the complainant were tendered as evidence of the emotional trauma suffered by her in the following months.  The applicant had a comparatively minor prior criminal history, but it is of some significance that he had, five months earlier, been fined for being unlawfully in an enclosed yard, an event which bore a sexual connotation, put before the sentencing Judge and not denied by his counsel.

This sort of treatment of vulnerable children must be strongly deterred.  The head sentence of 18 months, although high, in my view, was within range and gained some support by reference to Halvorsen CA 413 of 1994.  Not surprisingly, there is great variety in the penalties imposed in these sorts of cases, and that is explained by the great variety in particular circumstances.

Mr Sivell, who has appeared for himself before us this morning, emphasised that he was on bail for 14 months before going to Court and did not, in that period, offend.  He presents as remorseful.  He has given up his photography business, and puts the incidents down to an error of judgment on his part with relation to age. 

The circumstances of his having not offended while on bail and being remorseful are, of course, of significance.  I consider, however, that those circumstances, together with the plea of guilty, were adequately reflected by the suspension of the period actually to be served to six months. 

Mr Sivell has, with considerable emphasis, urged this morning that we suspend the remainder of the sentence from this point.  That would, in my view, be an unwarranted adjustment of the sentence at this stage on appeal.  I consider that the sentence was, as I say, within range, and that the plea of guilty and other mitigating circumstances were adequately reflected by the suspension of the period to be served after six months.

Although, as I say, I consider that it was a high sentence, it was within range and should not be disturbed.  I would therefore refuse the application.

PINCUS JA:  I agree.

DAVIES JA:  I agree.

THE CHIEF JUSTICE:  The application is refused.