R v McCandles[2006] QCA 199

SUPREME COURT OF QUEENSLAND

HOLMES JA:  The applicant for leave to appeal against sentence was convicted after a trial of one count of wilfully and unlawfully doing an indecent act in a place to which the public was permitted to have access.  He was sentenced to six months imprisonment followed by 18 months probation.

The facts on which the applicant was sentenced were that just before 3 p.m. on a school day in July 2004 he was seen in the car park of a secondary school naked except for a shirt and masturbating.  A number of students, some as young as 13 or 14 years, saw him doing so.  Indeed, the learned sentencing judge observed that he seemed to have manoeuvred himself to ensure that he would be seen by them.  According to the submissions of counsel for the defence, he was between 60 and 100 metres away from the students.  (That does not appear from the Appeal Record, but it was not challenged as correct by counsel for the Crown.)  It is not clear over what period the incident took place.  The learned sentencing judge referred to it as continuing for "some little while".  After the students had moved away the applicant got into his car and drove off, but his number plate was recorded and he was eventually identified.

The applicant is 28 years old.  He had, at the time of the offending, no criminal history but in January 2005 he was convicted and released on a recognisance to be of good behaviour for 12 months in respect of three charges relating to receipt of Commonwealth benefits to which he was not entitled.  Those offences had occurred prior to the offending behaviour here.  His counsel put before the sentencing judge that he had been an accomplished sportsman representing the State in various activities, and coaching in soccer and Australian Rules football.  Up to the time of the offending he had been studying and working as duty manager at a city swimming pool.  After being charged, however, he was no longer able to obtain a blue card enabling him to work with children.

The learned sentencing judge observed that the offence involved "deliberate, serious indecency" near a school at a time calculated to expose a number of school children to the behaviour, which made it, in his view, a particularly serious example of the offence.  The matter had gone through committal and trial with some of the school student witnesses giving pre-recorded evidence.  No remorse had been shown.  The learned judge accepted that the loss of the applicant's blue card would be a lasting adverse consequence of conviction.  But he regarded general deterrence as of particular importance; and because, he said, of the offence and the circumstances under which it was committed, there was no reasonable alternative to a term of imprisonment to achieve the purposes of deterrence and rehabilitation.

The only authority to which counsel could point in relation to sentencing under section 227(1), the section of the Criminal Code relevant here, was R v. Da Vinci [2000] QCA 346.  In that case, the applicant was convicted on three counts of indecent acts occurring on two separate days and a further summary count of indecent behaviour.  On each of the occasions involving the indecent acts he had entered public toilets at a public shopping centre and used a mirror to look into the adjacent cubicle, upsetting its female occupant.  On the third occasion, the victim had sufficient presence of mind to wait for him to emerge and have him apprehended.  The summary offence concerned similar behaviour.

Da Vinci was sentenced to one months imprisonment followed by three months probation.  That sentence was not disturbed.  It is to be noted, however, that there were compelling mitigating circumstances:  he suffered from depression after a history of torture and imprisonment in the Central American country from which he had emigrated.

Other authorities put before the Court by both defence and Crown counsel concern charges of indecent treatment of children, in some instances by masturbating in front of them.  None of those sorts of incidents, involving either direct contact with children or immediate exposure of them to the offending behaviour, seems to me, in any real sense, comparable.  Here the young people who witnessed the applicant's behaviour did so from a position of relative safety, in terms of distance and being in the company of others and in the sense that he was anonymous to them.  He was not known to them, nor they to him, nor likely to be.

I am not convinced that actual imprisonment was, in fact, the only reasonable alternative in this case.  However that may be, I accept that the behaviour occurring before school children, albeit teenagers, was cause for serious concern, so that imprisonment was within the range of a sound exercise of sentencing discretion.  But the sentence of six months imprisonment before allowing probation was too long.  While there is considerable force in the learned sentencing Judge's comments about the need for deterrence, both personal and general, it seems to me that in this case insufficient regard was had to the complete absence in the applicant's background of any other record of offending of this kind.  No psychological or psychiatric report was before the Court but the nature of the offence occurring, apparently, completely out of character, suggests an isolated episode of disturbance which required greater attention to be paid to the rehabilitative aspects of sentencing than was in fact.

Any sentence of imprisonment was likely to be sharply felt by the applicant as an individual of generally good background and without previous experience of incarceration.  I consider that the requirements of deterrence and punishment would be adequately met by a sentence of two months imprisonment and that rehabilitation is appropriately addressed by the existing probation order.

I would give leave to appeal against the sentence, allow the appeal and substitute a sentence of two months imprisonment, followed by 18 months probation.

JERRARD JA:  I agree with the reasons for judgment just given by Justice Holmes and with the order she proposes.

MACKENZIE J:  I also agree with the order proposed.  However, I do wish to comment on one detail raised by Justice Holmes and that is the question of whether a term of imprisonment may not have been the last resort.  I am not prepared to exclude the possibility that there may be cases where the circumstances of this category of offence are such that a non-custodial sentence is the proper outcome.

However, a case where a school, by necessary implication, has been targeted at a time when students in numbers may be expected to be exposed to the indecent act would, in my view, require very special circumstances to attract a fully non-custodial sentence.  This case did not display any of those features.  I agree with the order proposed.

JERRARD JA:  The orders proposed by Justice Holmes will be the orders of the Court.