R v Da Vinci[2000] QCA 356

COURT OF APPEAL

PINCUS JA

McPHERSON JA

ATKINSON J

CA No 161 of 2000

THE QUEEN

v.

LAVERNE DA VINCI Applicant

BRISBANE

..DATE 01/09/2000

JUDGMENT

PINCUS JA:  Justice Atkinson will deliver the first judgment.

ATKINSON J:  The applicant was convicted on his own plea of guilty on two counts of indecent acts on 17 April 1999, one count of doing an indecent act on 30 April 1999 and a summary count of indecent behaviour on 27 November 1999.

His behaviour on each occasion bore a remarkable similarity to the others.  The circumstances of the first count were that the applicant was in the female public toilets at the Myer Centre, Brisbane.   A young woman entered one of the cubicles to use it.  She noticed a small mirror placed underneath the wall of the cubicle from the next cubicle.  When she hurriedly left the cubicle she saw the applicant inside the adjacent cubicle with the door slightly ajar looking at her.  She was upset by what she saw and fled.

As she was leaving another young woman entered the same public toilets and went to the last cubicle.  She heard an unusual noise from the cubicle next to her and looked up above the partition dividing the two to see a hand holding a small mirror which was pointed towards her.  In the mirror she could see the reflection of the applicant.  She screamed and heard him run out of the cubicle and out of the toilet block.

The third count relates to an occasion on 30 April when another young woman went to the same public toilets at about 10.40 a.m.  She saw somebody with a mirror underneath the partition between the cubicle she was in and the next cubicle seemingly looking at her.  The mirror was quickly withdrawn and when the complainant crouched down and looked underneath the partition she noticed men's shoes.  She left the cubicle and went a little way down the corridor where she waited for a period of time.  Ultimately the applicant came out of the toilet and was confronted by the complainant who called him "a dirty pervert", grabbed his right shoulder and screamed out for somebody to get a security guard.

The applicant fled the scene.  The applicant was apprehended after the complainant identified him by photo-board.  He declined to be interviewed by the police and was issued with a notice to attend. 

The final count concerns the applicant's behaviour at the female toilets at the Carlton Crest Hotel in Brisbane.  At around 10 p.m. on 27 November later in the same year, a number of women observed that there was a person in the toilets using a mirror to look in between the cubicles at women who were using the toilets.  The applicant was apprehended by the police after he returned to the area of the toilets.

The first three offences were committed when the applicant was on probation for a similar offence which he committed on 6 June 1998.  The fourth offence was issued after he had been issued with a notice to attend in relation to the first three offences.

The learned sentencing Judge sentenced the applicant to a total period of imprisonment of one month and ordered that he be released under the supervision of an authorised Commission officer for a period of three years on probation with a special condition that he submit to such medical, psychiatric and/or psychological treatment as directed by the authorised Commission officer.

The Judge ordered in relation to the breach of probation that no further action be taken.  His Honour took the breach of probation into account in relation to the sentence imposed for the offences.

The first three counts were charges under section 227 of the Criminal Code for which the maximum imprisonment is two years.  The maximum sentence for count 4 which was brought under section 4 of the Vagrants Gaming and Other Offences Act was six months imprisonment. 

The applicant seeks leave to appeal on the basis that firstly the sentencing discretion miscarried in that the sentencing Judge erred by not giving sufficient weight to the psychological and social evidence about the effects of an actual term of imprisonment, and second that the sentence of imprisonment was manifestly excessive in the circumstances.  In his written submissions on appeal the applicant relied only on the second ground.  However, the first ground is relevant to the second. 

The first ground of appeal relates to circumstances relating to the applicant's life in Guatemala before he migrated to Australia.  The evidence of those experiences was found in a psychological report by Geoffrey Grantham and a report by Chris Lobsinger, a social worker with the Queensland Program of Assistance to Survivors of Torture and Trauma Inc.

Mr Grantham gives a history of the applicant having suffered from detention and torture as a result of his political views and the activities of his father, a barrister and diplomat, who was assassinated when the applicant was about 13 or 14. 

The applicant described himself to Mr Grantham as having been tortured in the men's latrine at a military base where the torture included repeated anal rape.  His history to Mr Grantham was that he used the female toilets because using the cubicles in male toilets triggered a trauma response.

However, that gives no real explanation for or even any insight into his offending behaviour.  Of concern was an observation made by Mr Grantham that:

"The immediate relevance of the behaviour being of a deviant sexual nature is that this component led to the behaviour being associated with high levels of physiological arousal.  If the behaviour were to continue further escalations might occur, including more overt sexual components."

Also of concern is a reference made by Mr Grantham in page 36 of the record that Mr Da Vinci had been offending in April 1995.  When asked during the appeal, Mr Da Vinci was unable to give no explanation for this reference.  It might be explained by the fact that Mr Da Vinci is the pseudonym of a man whose name is Domingo Rafael Montenegro Vega.  No criminal history for Mr Montenegro Vega was before the learned sentencing Judge or this Court.

With regard to sentencing options Mr Lobsinger gave the following opinion: 

"In my professional opinion Mr Da Vinci's history of torture and imprisonment make it imperative that any outcome which results in imprisonment must be seriously weighted against the increased risk of suicide and self harm."

Mr Grantham's opinion as to the sentencing option was as follows:

"In response to your further query regarding Mr Da Vinci it is the case that a term of imprisonment could be considered as more difficult and aversive for him than would normally be the case.  It would be reasonable to consider that given his prior experiences in custody being placed in a prison would generate higher levels of fear in him than would normally occur even though he would be aware that he would be treated quite differently in this country.

With respect to his state of mind, an increase in the level of depression he is suffering might occur in a prison setting.  However, such changes would be determined by the experiences he had in prison and his overall responses to that situation.  Any significant level of ill-treatment could be expected to have a detrimental effect.   As there is an association between depression and suicide it follows that a deterioration in Mr Da Vinci's state of mind could leave him at greater risk of self-harm.  Suicidal behaviour cannot be reliably predicted but if Mr Da Vinci were to be incarcerated he should continue to receive treatment for depression and I assume the treating doctor would perceive that a risk of suicidal behaviour exists."

The learned sentencing Judge took full account of the traumatic experiences suffered by Mr Da Vinci to the extent that they supplied an explanation for his offending behaviour.  It appears that when his Honour came to determining the nature of the sentence he should impose, while he did not specifically mention the applicant's past traumatic experiences would be likely to make a sentence in prison much more difficult for him than for a like offender, his Honour, properly, took those experiences into account in determining the sentence to impose.

The submission that the sentence is manifestly excessive without this feature would be difficult to accept.  The learned sentencing Judge took into account the torture the applicant had suffered, his successful re-establishment in Australia, his positive contribution to the community through his art work, his steps to get treatment after his arrest, his pleas of guilty and the fact that the Crown Prosecutor had acceded to a community-based order as being appropriate before the learned sentencing judge.

On the other hand his Honour properly took into account the possibility noted by Mr Grantham that escalation may occur in his offending behaviour, that the experiences must have been frightening for the victims, the need for personal and general deterrence - general deterrence because women and men using public toilets are entitled to feel comfortable in the belief that they are not being observed and to feel safe, and personal deterrence given his history of committing this sort of offence and his breach of probation and the fact that these were not momentary lapses, but were planned as the applicant waited for appropriate victims and that the offences were repeated whilst on probation for a similar offence and then after having received a notice to appear.

In all of the circumstances the learned sentencing Judge took the view that a short term of custody might provide the incentive for the applicant to abandon his deviant behaviour and the order of probation was highly appropriate given the critical need for supervision.  No error has been demonstrated in the exercise of the sentencing discretion nor in the sentence imposed.  In all of the circumstances I would not allow the application for leave to appeal against sentence.

PINCUS JA:  I agree that the learned sentencing Judge referred to all relevant matters and that his Honour dealt with the matter carefully.  I do not agree that the course of sending this man to prison was appropriate.  I would have not done so and I think that doing so was manifestly excessive. 

The reasons I have for that, apart from those factors which have been referred to by Atkinson J as favourable to the applicant, are that I am particularly concerned about the suicide possibility which Mr Grantham's report referred to; I give considerable weight to Mr Grantham's view on that subject.  Secondly, I am also affected by the fact that there is a risk, both to this man and to his potential victims, that the interruption of the apparently successful treatment he has been receiving for some time will do more harm than good.  I would allow the application and set aside the sentences of imprisonment.

McPHERSON JA:  I agree with the reasons and with the order proposed by Justice Atkinson.

PINCUS JA:  The order of the Court is the application is refused.  There has to be a warrant issued, Mr Farmer.

MR FARMER:  Yes.  Perhaps the warrant could lie for seven days.  We will arrange‑‑‑‑‑

MR CLARK:  I have no objections, your Honours.

PINCUS JA:  Very well.  Let a warrant issue for the arrest of the applicant and let it lie in the registry for seven days.