R v Lynas[2001] QCA 377

COURT OF APPEAL

DAVIES JA

WILLIAMS JA

WILSON J

BRISBANE

DATE 10/09/2001

JUDGMENT

DAVIES JA:  The applicant pleaded guilty on 15 May this year of 16 counts of indecent dealing with a boy under 14, 10 counts of indecent dealing with a boy under 16 and one count of permitting sodomy.  He was sentenced to six years imprisonment with a recommendation for consideration for parole after serving two and a half years of that term.  He seeks leave to appeal against that sentence.

The offences the subject of this total sentence occurred between January 1966 and January 1978 when the applicant was between 23 and 35 years of age.  He is now 58.  It is unnecessary to state the circumstances of each of the offences in detail.  It is sufficient for present purposes to summarise them.

On 27 occasions between 1966 and 1978 the applicant sexually interfered with four vulnerable boys in breach of trust.  Most of the conduct involved masturbating the boys or having the boys masturbate him, oral sex or simulated intercourse. On one occasion it appears from the nature of the offence, he permitted a child to sodomise him.

Notwithstanding that I have stated these offences in a very summary way, the total conduct involved was of a very serious nature and justified the sentence imposed of six years.  Indeed Mr Moynihan for the applicant does not complain about that head sentence.

As these offences occurred so long ago, it is relevant to look at the applicant's conduct since that time.  There are two relevant offences since the last of the acts, the subject of the present application.  The first of these was in April 1979 when the applicant was convicted of two offences of wilful exposure in February and March of that year.  These involved exposing himself in the street to two young male high school students in the vicinity of a high school.

The second offence occurred in March 2000 when again he exposed himself to two children, on two occasions, apparently quite persistently by following them, in a video store at Southport. 

However, since the last of these offences the applicant has sought and undergone treatment including psychotherapy and drug treatment including a drug called Androcur which Dr Young, a psychiatrist, described as equivalent to chemical castration because it has the effect of causing the testosterone level to drop rapidly and to a substantial extent.  In any event by this time the applicant was apparently impotent.  But he has now also entirely lost his sexual drive which, notwithstanding his impotence, compelled him to go to beaches, swimming pools, changing rooms and other places where he might look at youths in swimming attire or nude.  Dr Young is of the opinion that there is no likelihood of his re-offending presumably, as I understand it, if he remains on Androcur.

The main submission advanced by Mr Moynihan for the applicant is that the recommendation after two and a half years imprisonment was inadequate mitigation of the sentence having regard primarily to four factors; that he is a mature man with a good work history; that he cooperated extensively with the investigating authorities; that he pleaded guilty to an ex officio indictment at a very early stage thereby saving a great deal of money and considerable mental anguish to those concerned; and that, as I have already mentioned, he voluntarily sought psychiatric treatment and has undertaken medication which appears to have been, at least so far, successful.

It is true that, when looked at solely in the light of these matters, the recommendation for parole was by no means generous.  On the other hand the sentence of six years imprisonment was by no means a heavy one, having regard to the number of offences, the number of young boys involved, their vulnerability and trust in him at the time, the effect which it had on at least three of the young boys who provided victim impact statements and his criminal history since the commission of the offences the subject of this application.

In those circumstances, it seems to me, that although the recommendation was by no means a generous one and could have been substantially less than that, when looked at in the light of the global sentence which was imposed, that is the sentence of six years imprisonment with a recommendation after two and a half years, I do not think that that global sentence was manifestly excessive for the reasons I have given and I would therefore refuse the application.

WILLIAMS JA:  I agree.

WILSON J:  I agree.

DAVIES JA:  The application is refused.