DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent, David Martin Melouney appeared in the Magistrates’ Court at Brisbane on various charges relating to child pornography. He was fined the sum of $1750.00 and no conviction was recorded. The appellant, representing the Queensland Police Service appeals against that part of the order relating to the refusal to record a conviction. It was submitted that a conviction ought to be recorded in a case of this nature and that the failure to do so resulted in a sentence which was manifestly inadequate.

2. [2]
   The respondent pleaded guilty to possession of objectionable computer games,^[1] copying a child abuse computer game,^[2] possessing child abuse photographs,^[3] possessing tainted property.^[4]  The offences relate to breaches of ss 27(4) and 26(3) of the Classification of Computer Games and Images Act 1995, s 14 of the Classification of Publications Act 1991 and s 252 of the Criminal Proceeds Confiscation Act 2002.  The more serious offence of copying attracts a penalty of 800 penalty points^[5] or three years imprisonment.

Nature of the material

3. [3]
   When police officers executed a search warrant at the respondent’s dwelling, he fully co-operated with police and made full admissions. He said that he had been subscribing to the child pornography sites for four years. He stated that he printed off photographs for self gratification. The images included those of young females posing nude, young female children performing oral sex on adult males and adult males engaged in sexual intercourse with young female children.

Personal Circumstances of the Respondent

4. [4]
   The respondent was a married person. He was a trainee acupuncturist and 39 years of age at the time of the offences. His prior criminal history was a common assault in Western Australia for which he was fined $400.00. Of particular importance was a report from a psychiatrist, Dr.Kazlauskas dated 7 march 2005.^[6]  In some ways, this report is a two edged sword for the respondent.

5. [5]
   In that report Dr. Kazlauskas refers to the respondent feeling ‘intense sexual excitement when he viewed naked female genitalia, without pubic hair, because “he could see more”.’ That is the reason he gave for looking at girls’ genitalia. He would spend 20 hours per week at the pornographic sites. Dr. Kazlauskas says that the respondent at the age of 16 was “caught” looking at his female neighbour and was assaulted by her husband. Also, the respondent exposed himself to the neighbour’s two female daughters aged 14 and 15.

6. [6]
   The respondent had had various jobs including a Pizza Hut delivery man, and nine years as a student and instructor in Kung Fu. In 2003, he commenced a course in acupuncture. Dr. Kazlauskas maintains that the respondent is not a paedophile. He does not elaborate as to what characteristics the respondent does or does not possess in that respect or what the profile of a paedophile is. One has to assume that the psychiatrist knows what the indicia are for a paedophile. There is no evidence of psychosis. He was seen by Dr. Kazlauskas on twelve occasions and once with his wife. There was counselling to assist the respondent improve his relationship with his wife. Also, treatment was directed to making the respondent aware that his actions promoted the exploitation of children. He seemed to be naïve in that respect. The respondent is said to have intense feelings of shame. He “has thought of suicide in the event he is featured in the Newspapers and is prevented from continuing his studies and profession of Acupuncturist”. Because Dr. Kazlauskas perceives the respondent to be shy and shamed, the risk of suicide is real.

Magistrates Approach

7. [7]
   The learned magistrate took into account the matters referred to in Dr. Kazlauskas’s report. She found that:

“I am very much persuaded by the evidence of the psychiatrist which was not, in any way, challenged in this case, that the impact on his economic well-being and his social well-being could be severely affected if a conviction is recorded, because the psychiatrist notes his potential for suicide.”^[7]

8. [8]
   The learned magistrate recorded the submission of the respondent’s lawyer that the respondent “would be prevented from entering that group (acupuncture) if convicted”. She noted section 9.2(ix) of the Australian Acupuncture & Chinese Medicine Association Code of Ethics.  The Crown submits that the learned magistrate erred in finding that a conviction would prevent the respondent from becoming an acupuncturist.  Section 9.2 (ix) provides as follows:

“Without limiting the meaning of the expression illegal and dishonourable practices a acupuncture practitioner shall be guilty of illegal or dishonourable conduct who –

…

9. (ix)
   Is convicted in a court of law of an offence (other than a traffic offence) punishable by three or more years imprisonment and for a fine exceeding $10,000.”

9. [9]
   The learned magistrate did not specifically find that the responded could not be accepted as an acupuncturist but did say that he would be “severely affected if a conviction is recorded”. However, reference should also be made to section 13.2 of the Code of Ethics which provides as follows:

“The Disciplinary Committee shall have the power to inquire into any charge in regards to a member, that the member:

…

9. (iv)
   Has committed any act or neglected to do any act punishable by imprisonment for a term of three or more years or (sic) a fine exceeding $10,000.

10. [10]
    Therefore, whether or not a conviction is recorded is not determinative for the purposes of an inquiry into suitability as an acupuncturist. Rather, the recording of a conviction would be another factor to be taken into account. The deeming provision in relation to s 9.2 (ix) is relevant only to what is “illegal or dishonourable conduct”. What punishment is imposed is a matter for the Board who may act upon the recommendation of the Disciplinary Committee. Section 13.3 provides for such punitive measures as suspension, imposing conditions upon the practice of the person concerned or suspension. The imposition of a conviction in the present case could not be said to be determinative of what punishment is meted out or whether the respondent is refused registration by the Board.

11. [11]
    It has been argued that the learned Magistrate accepted the submission that a conviction would prevent the respondent from being registered. Rather she found that the respondent would be “severely affected”. That finding was apposite to the economic well-being and also his social well-being as relevant to the risk of suicide.

12. [12]
    Section 12 of the Penalties and Sentences Act 1992 provides as follows:

9. (1)
   A court may exercise a discretion to record or not record a conviction as provided by this Act.

9. (2)
   In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—

1. (a)
   the nature of the offence; and

2. (b)
   the offender’s character and age; and

3. (c)
   the impact that recording a conviction will have on the offender’s—

1. (i)
   economic or social wellbeing; or

2. (ii)
   chances of finding employment.

13. [13]
    Having considered s 12 of the Penalties and Sentences Act 1992, the learned magistrate was required to balance the requirements of that section with the serious nature of the offences and determine whether a conviction ought to be recorded.  She was required to exercise her discretion.  The learned magistrate stated that she had taken into account the factors considered in R v Hoch ex.parte Attorney General.^[8]  The learned magistrate also made reference to R v Briese ex parte Attorney General^[9] and R v Gallagher ex parte Attorney General.^[10]

Relevant legal principles

14. [14]
    Before an appellate court can interfere with the exercise of a discretion, it must be shown that the court at first instance erred in some manner.^[11] In other words, was the exercise of the discretion outside the range of a proper exercise of discretion?^[12]  The court stated:

“Those observations should not be taken as laying down a rule that the court must not grant an offender the benefit of a non-recording of a conviction whenever it is likely that the offender might come before such a board; it is a stricture to look at the matter carefully and to bear in mind the potential public harm that may result from the court’s authorising concealment of the truth.”^[13]

15. [15]
    The latter is relevant to the role that the Board responsible for registering an acupuncturist would play. It is also relevant to the provisions of the Criminal Law (Rehabilitation of Offenders) Act 1986.  Section 5 of that Act provides:

9. (1)
   It is declared that a conviction that is set aside or quashed and a charge are not part of the criminal history of any person.

9. (2)
   A person shall not be required or asked to disclose and, if so required or asked, shall not be obliged to disclose for any purpose a conviction that is not part of the person’s criminal history or of the criminal history of another person or a charge made against the person or another person.

9. (3)
   Subsection (2) does not apply where the requirement or request to disclose a conviction or charge therein referred to is made—

1. (a)
   for the purposes of an inquiry being conducted pursuant to authority conferred by or under an Act; or

2. (b)
   in criminal or civil proceedings before a court if the fact of the conviction or charge is relevant to an issue in the proceedings or the court has granted permission for the requisition or request to be made.

16. [16]
    In the present case it seems that the Disciplinary Committee for registering acupuncturists would investigate the respondent’s case even if a conviction is not recorded and even if the respondent was not required to disclose the offence by virtue of s 5 above. Therefore, the recording of a conviction is of less significance as far as the respondent’s economic well being is concerned in comparison to other cases. For example, if the respondent were a teacher, the recording of a conviction would disentitle him from receiving a Blue Card.^[14]  In Millers’ case the offender had already lost his job as a teacher and his honour proceeded on the assumption that whether or not a conviction was recorded, the offender would be unable to work as a teacher and would be unable to obtain a blue card.  In that respect, his honour concluded that the requirements in Hoch^[15] could be met without recording a conviction.  Millers’ case can be distinguished on that ground and also on the basis that Mr. Millers did not maintain a supply of the images on his computer database.^[16]  One other matter referred to by his honour McGill S.C. D.C.J. was that if a conviction was recorded, the offender would be automatically placed on a child protection register.^[17] His honour was dealing with a teacher who falls into a different category to the present offender. One of the purposes of the register provided for in the Act is to reduce the likelihood of re-offending. The onerous nature of reporting was also taken into account by Skoien S.J. D.C.J. in R v Crane.^[18] In Millers’ case there was a specific finding that there was no further risk of re-offending.^[19]  In Crane’s case there was a specific finding that the material was for the offender’s own gratification.^[20]

17. [17]
    A comparison can also be made with the decision of R v Gallagher.^[21]  In that case the real estate agent’s licence was cancelled automatically whether or not a conviction was recorded for an offence against sexual morality.  The Court of Appeal imposed a conviction in that case as the court at first instance failed to appreciate the automatic cancellation with or without a conviction.  The court was thus able to exercise the discretion afresh.  The court observed that in cases involving convictions for sexual offences against children, it is undesirable not to record a conviction.^[22]  The present case is analogous as the conduct of the respondent was an encouragement to those involved in exploiting children for pornography to continue to do so to meet the perverse demand:^[23]  

“The production of child pornography for dissemination involves the exploitation and corruption of children who are incapable of protecting themselves. The collection of such material is likely to encourage those who are actively involved in corrupting the children involved in the sexual activities depicted and who recruit and use those children for the purpose of recording and distributing the results. The offence of possessing child pornography cannot be characterised as a victimless crime. The children, in the end, are the victims. In my opinion, a sentence of immediate imprisonment was called for.”

18. [18]
    In the present case, there was a failure to appreciate that whether or not a conviction was recorded, the Disciplinary Committee would have the power to scrutinize the criminal history of the offender. Section 13 of the Code of Ethics was not referred to. The Board would consider the recommendation of the Committee as to what disciplinary action should be taken. Therefore, the discretion can be exercised afresh.^[24]

19. [19]
    The Crown submissions relied particularly on the case of R v Hoch.^[25]  In many ways the present case and that of Hoch are similar.  The charges were similar.  A fine of $2000.00 was imposed and no conviction recorded at first instance.  The Attorney General appealed solely on the basis that a conviction should have been recorded.  The offender pleaded guilty.  He was 35 years of age at the time of the offences.  He had worked as a teacher aide with disabled children and as a recreation officer.  He had a good academic record.  He gave assurances that he would not work or seek employment as a teacher or to seek to work with children.  The offender had a large quantity of material related to child pornography although at the hearing the Crown accepted that he did not request this but rather he requested material about gay and lesbian clubs in Scandinavia.  He was interested in young adult gay men not juveniles. The acts represented in the images involved young boys and were explicit in relation to various sexual acts.  The Crown accepted that the material was for his own self-gratification.  The offender did not fully co-operate with police but pleaded guilty at an early stage. A similar maximum head sentence applied in that case viz. three years or the fine of $60,000.00.

20. [20]
    The Court of Appeal observed^[26] that the nature of the offences in that case which are similar to the present offences supported the recording of a conviction.  Her honour^[27] referred to the principles in R v Briese^[28] and R v Gallagher.^[29]  In deciding to record a conviction, her honour took into account that the material was for the offender’s own self gratification, but that “the community’s interest in having a conviction recorded overrides the interests of the respondent”.  The present case is more serious as the respondent sought and kept pornographic material as distinct from Mr. Hoch, who, it was agreed, did not request the child pornography. 

Respondent’s submissions

21. [21]
    In opening the submissions for the respondent, Mr. Fraser relied upon the decision of Mould v Newland:^[30] 

“… but it does not follow that in every case in which an offender has been guilty of a serious offence circumstances personal to the offender cannot be relevant and decisive when the discretion provided for in s 12 of the Penalties and Sentences Act is being considered.  Were it otherwise the discretion provided for by the Act would have been eliminated in such cases.  To demonstrate that the discretion has not been eliminated in such cases one need look no further than R v Brown ex parte Attorney General.”

22. [22]
    That principle was implicitly applied in R v Hoch^[31] and shall be applied in the present case.  The matters relied upon by the respondent, and which I have considered, were as follows:^[32]

“(a)The respondent entered a timely plea of guilty. This demonstrates a willingness to facilitate the administration of justice.

2. (b)
   The respondent displayed a high level of cooperation with the investigating police. The respondent actively assisted the police in the search and location of the subject material.

3. (c)
   In addition, the applicant made full and frank admissions to the investigating police.

4. (d)
   It is submitted that the above matters referred to in sub-paragraphs (a) to (c) indicate and demonstrate:

1. (i)
   Genuine remorse

2. (ii)
   Realistic and genuine prospects of rehabilitation

3. (iii)
   An ability to gain insight into the offending behaviour. It is respectfully submitted that this has been confirmed by the report of Dr Kazlauskas;

5. (e)
   The respondent has sought treatment and ongoing treatment from Dr Kazlauskas. At the time of Dr Kazlauskas’s report the respondent had consulted with him on 12 occasions. He has involved his wife in this process;

6. (f)
   The respondent demonstrated to Dr Kazlauskas deep and genuine feelings of shame and remorse. The report speaks of “intense feelings of shame”.

7. (g)
   The respondent demonstrated that he is “obedient to authority” as his complete disclosure to police demonstrates (see p. 3 Dr Kazlauskas’s report).

8. (h)
   The respondent has no relevant previous convictions and had not been before the courts in ten years.

1. (i)
   It is respectfully submitted that the non-recording of a conviction in the instant case was within the proper range of the exercise of the sentencing discretion given all the mitigating factors. It is submitted that this is an appropriate case where “… the beneficial nature of such an order needs to be kept in view.” See R v Briese 92 A Crim R 75 at 80 per Thomas and White JJ.”

23. [23]
    Some the disturbing features of this case are the matters referred to in the report of Dr. Kazlauskas. They relate to the respondent’s behaviour with his neighbours, his relationship with his wife and the type of pleasure derived from viewing pre-pubescent females. The other matters relevant to s 12 of the Penalties and Sentences Act are:

1. The nature of these offences is serious. If there are persons such as the respondent providing a demand for this type of material, then young persons will be exploited for sexual gratification. It is encouragement to those who exploit children to continue to do so.^[33]
2. The respondent was a mature person. He has previous for an assault but not of a sexual nature. His character is flawed. His dealings with his previous neighbours point to a person with some deviant tendencies. He may be shy, but the gratification which he enjoyed by looking at images of children having sex or being involved in sexual acts is quite disturbing. Admittedly, he has sought treatment. His relationship with his wife seems somewhat stilted and unusual. He continues to have counselling. Dr. Kazlauskas does not express the opinion that the respondent is unlikely to offend further.

24. [24]
    The impact that recording a conviction will have on his economic well-being has been discussed. Even if a conviction was not recorded, the respondent could still be subject to scrutiny before being allowed to practice. If he failed to disclose the offence, then the Disciplinary Committee could still investigate the conduct pursuant to s 13.2 (iv) of the Code of Ethics. The fact that he may treat children may be relevant as to whether any conditions are imposed by the Board upon his right to practise pursuant to s 13.3 (ii). The Board may still allow him to practise subject to certain conditions. In other words, his chances of finding employment will not necessarily be dictated by recording a conviction or not in the present case.

25. [25]
    The impact on the respondent’s social well being could be more significant. Dr. Kazlauskas was of the view that someone such as the respondent who has felt intolerable shame and who is sexually inhibited may be vulnerable to suicide if it is made public or he is prevented from continuing his studies. It has not been suggested that this type of conduct can be kept from the public. In fact, persons who are thinking of committing such offences should be aware that public disclosure will occur if they are willing to support an industry which exploits children. The consequences of such disclosure cannot be determinative of whether a conviction should be recorded or not. Also, the respondent is not prevented from continuing his studies. He may continue his counselling and upon completion of his studies can apply to be registered as an acupuncturist. In view of the powers of the Disciplinary Committee, he may be required to disclose the facts giving rise to these offences, whether a conviction is recorded or not. The recording of a conviction is merely incidental to those offences. It is not determinative of the issue as to whether he should be registered. It may be another factor taken into account by the Board when considering the recommendations of any inquiry into the respondent’s application for registration.

Conclusions

26. [26]
    Having decided that the discretion was wrongly exercised, it has been necessary to apply the principles in R v Hoch^[34] to the present case.  It leads to the conclusion that a conviction ought to be recorded.  In my view, this is the type of case where the community interest outweighs any other factor. 

Orders

3. The appeal is allowed.
4. It is ordered that a conviction be recorded to date from 14 March 2005.