Peoples v Price[2012] QDC 261

[2012] QDC 261

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE HARRISON

No 3065 of 2012

BRISBANE 

DATE 10/08/2012

JUDGMENT

HIS HONOUR: This matter originally came before me yesterday by way of an application for bail pending appeal under section 222 of the Justices Act 1886.

On the 6th of August 2012, the applicant pleaded guilty in the Magistrates Court at Brisbane to one charge of indecent treatment of a child under the age of 16 years. The relevant incident occurred on the 26th of January 2012 at the Roma Street Railway Station. He was sentenced to nine months' imprisonment, suspended after two months with an operational period of two years.

When the argument commenced in relation in the bail application, it became obvious that it was necessary to consider in some detail the whole issue of prospects of success of the appeal. I was informed that it would not have been possible for any transcript to have been available for at least two months and obviously he would have served his sentence by the time that became available.

I am indebted to Mr Woods, solicitor, who appeared on behalf of the applicant and Mr Nardone from the Office of the Director of Public Prosecutions for agreeing to argue the appeal itself, rather than delay the matter any further, so the substantive appeal was argued before me yesterday. This was possible because Mr Woods had appeared on behalf of the applicant on the sentence before the Magistrate and Ms Wilson from the DPP, who prosecuted before the Magistrate, had provided an affidavit and was also available to assist Mr Nardone when the appeal was argued.

Grounds of Appeal: Essentially, three matters were raised in the grounds of appeal. It was argued that the sentence imposed was manifestly excessive. It was argued that the Magistrate was in error in not finding exceptional circumstances pursuant to section 9(5) of the Penalties and Sentences Act 1992 and also issue was taken with her finding to the effect that the behaviour on the part of the applicant was predatory and persistent.

The facts: There was an agreed schedule of facts placed before the Magistrate and a copy of this was exhibited to the affidavit of Mr Woods filed on the 8th of August 2012. The applicant was 14 years of age and had attended some festivities at the South Bank Parklands and had returned to the Roma Street station to travel home.

He was approached late that afternoon by the applicant who tapped him on the shoulder and introduced himself and shook his hand. He spoke to him for about five minutes, telling him a bit about his life. He actually left the child briefly, but before doing so, he tried to put his arm around him. The child shrugged that off and he moved away.

He came back shortly afterwards and again spoke to the child. He told the child that he was very cute, that he was not gay, but he was not straight either and then the actual offending occurred just when the child's train was about to leave. The complainant stood near the applicant as he was about to get onto the train and the applicant patted him twice on the right bottom cheek with his hand and said to him, "You are very beautiful." The child got onto the train, the applicant got onto the same train, but got off at the next station and that was effectively the end of the incident. He was later located and identified by the child. It seems that some of the incident or the lead-up to the incident was filmed on security cameras that were kept at the Roma Street station.

Personal circumstances of the applicant: The applicant was 59 years of age. He had one previous conviction for a very minor matter which is set out in the exhibit to an affidavit of Melissa Woods filed by leave yesterday. It was of no significance and in fairness to all parties, was not raised as such. Other than that, he had an unblemished record. Ms Woods' tendered on the sentence, a report from what appeared to be his GP, Dr Fiona Bishop, dated the 10th of July 2012. This report contains a number of matters which are relevant for the purposes of the sentence.

She confirmed that he was originally from Kingscliff and that she had first had dealings with him in May 2011 after an incident when he was assaulted with an iron bar at a boarding house where he resided. She described a number of problems in relation to that. There was reference to physical injures, but more importantly, to his suffering from symptoms of insomnia, anxiety and hypervigilance. This necessitated some counselling which was available free. Once that was exhausted, there was an ongoing need for assistance and she referred him to a psychologist for ongoing psychological counselling.

She obviously discussed with him the circumstances surrounding the offending and indicated that he had expressed considerable remorse. He claimed to her that because of the excessive amount of alcohol that he had to drink that day, he had no recollection of the incident, but accepted his involvement once he was shown some camera footage which showed him, as she described it, trying to hug the boy on that particular occasion. She described him as being accepting of the fact that his behaviour was inappropriate and that he was ashamed and embarrassed that it had happened.

He related to her how he had had so much to drink that day, that he had on one occasion, been thrown out of the Royal George Hotel, though it seems that may have been afterwards. She said that he had been virtually abstinent from alcohol since February of that year, drinking only a few mid-strength beers on a Sunday.

She noted that he was, although an invalid pensioner, doing fundraising work for a charity. She noted particularly that he had sought counselling as a result of what happened. She described him as being bisexual, but also socially isolated and as not having the social skills to make acquaintance with people. She referred him to a psychologist, Mr Wade Jackson, from Life Psychology, and he was due to start that particular treatment that day. She went on to describe him as a man of average intelligence with longstanding alcohol dependence suffering from depression/anxiety who was socially isolated.

She commented on his behaviour that day as being apparently disinhibited behaviour and also spoke of his alcohol consumption. She went on to say, "I believe his longstanding depression, isolation and loneliness would have contributed to his drunken attempt to befriend a stranger, albeit, extremely inappropriately." She then considered the whole issue of the likelihood of reoffending and she related that likelihood as extremely low, referring to the fact that he was no longer drinking alcohol in such substantial quantities, the fact that he had actively sought counselling, the fact that he was deeply remorseful and ashamed of his behaviour and that he had no past history of behaviour of this type.

A number of references were also tendered. There are three on file and I will not mention the authors. They confirm his background, a previously good work background. They confirm his voluntary work and they vouch generally as to his character. I did have difficulty reading one of them because it was a photocopy and not all that clear, but that was a consistent theme through the other two and through the passages I could read from the third reference.

Effects on the complainant: One matter is of significance here, is the way this incident effected the complainant. I have read his victim impact statement which was exhibited to the affidavit of Ms Wilson, and it is clear that he had very severe problems in the short-term. Clearly, the whole thing was precipitated by the offending behaviour, but seemed to me to have been compounded by the fact that he could not get the assistance he wanted in the short-term. He became very frustrated with that, but eventually was able to get assistance which he found beneficial, but nonetheless, I accept that the impact on him was quite substantial.

Finding that behaviour was predatory and persistent: Certainly, the way the applicant approached the child was persistent; moving backwards and forwards, coming back to the boy and eventually committing the offence after an earlier attempt to put his arm around the boy or hug the boy, and to that extent, I would agree that the behaviour was persistent. I do have some concerns, however, about the finding that the behaviour was predatory.

Something of significance in this case is where it happened and his condition at the time it happened. It was advanced on his behalf on sentence that he was grossly affected by alcohol. Also I understand, to some extent, by prescription drugs, although there is no reference to that in the report of Dr Bishop. I understand it was not disputed that he was affected. What he did, in many ways, does not have all of the traits of this type of offending. He did it late in the afternoon, in daylight, on a public railway station, in rather a clumsy fashion which would suggest to me that this was consistent with someone who was, as was put forward on his behalf, grossly affected by alcohol.

It lacks a lot of the features of the type of offending that we often see and I deal extensively with offences of this nature, where it invariably happens in an isolated place, where it invariably happens in circumstances where there are no potential witnesses. So, whilst, not attempting to play down in any way the seriousness of the offending here, it does seem to me to be consistent more with very clumsy inappropriate behaviour of the type described in that passage that I quoted earlier from the report of Dr Bishop. So, in the circumstances, it seems to me that it was not justified to conclude that this was the predatory-type behaviour and I believe that too much emphasis was placed on that.

Certainly, it did not appear to me to be something that was well planned and appeared to me to be consistent with someone who certainly did have an inappropriate interest in the child, but consistent with someone who was grossly affected and had very little regard to the surrounding circumstances, namely that here he was, in broad daylight, open to everyone, including cameras, making these inappropriate advances to the child including the touching of his bottom.

Exceptional circumstances: It is well accepted that under section 9(5) of the Penalties and Sentences Act, there has to be a period of imprisonment imposed for offending such as this unless the applicant can show special circumstances. A number of matters were put forward, both in the lower Court and here in relation to that very issue and I would summarise these as follows: The age; the fact that he had no relevant history; his good work history; his otherwise good character as supported by the character references; his charity work; more importantly, the matters referred to by Dr Bishop in her report concerning his considerable remorse; the fact that he had sought treatment; the fact he had limited his alcohol content and the fact that he was, for the reasons she summarised that I mentioned earlier, a low risk of reoffending. No issue was taken in relation to that when her report was presented.

It seems that much of the argument before the Magistrate related to that whole issue of whether there were or were not special circumstances. She was referred to the decision of R v. Quick, ex parte, A-G (Qld) [2006] QCA 477. It was argued by the respondent here that virtually all of the features relied upon to justify exceptional circumstances were rejected as such in the decision of Quick. I have had particular regard to the decision of Justice Chesterman who was in the majority in that case.

He referred to the earlier finding by the Magistrate of exceptional circumstances and he summarised the relevant matters in paragraphs 35 and 36 of the decision. It is not necessary for me to go into them in any detail for the purposes of this decision. Certainly, the matters referred to in paragraph 36 match almost on all fours the matters relied upon here. He summarised those as the respondent having pleaded guilty to an ex officio indictment. Here, there was no issue taken in terms of a timely plea; the fact that he had no prior criminal history and here, for practical purposes, that is essentially the same; how he became depressed and required psychiatric treatment for depression which would diminish his capacity to adjust to custody. The evidence here never went that far, but certainly showed that he had become depressed, although more importantly, had been depressed earlier because of the other incident and had required treatment and continued to require treatment. He dealt with the issue that he was remorseful, the issue that he was unlikely to reoffend, the issues of public embarrassment and humiliation and also anxiety he had suffered since.

But in subparagraph (h) of paragraph 36, he also referred to the fact that the offences were not the most serious examples of their kind. In paragraphs 37, 38 and 39, he then went on to analyse the relevance of these different factors. He pointed out that some were always there, namely in the order he dealt with them, those referred to in paragraphs 36 (a), (b) (d) and (e). He referred to the ones referred to in (c), (f) and (g) as the usual consequences which commonly flow from the discovery and prosecution of sexual offences. In short, he said that there was nothing exceptional about those and that was essentially the argument advanced here by the respondent on this issue of exceptional circumstances.

It is significant, however, that in paragraph 38, he analysed the matters referred to in subparagraph (h) of paragraph 36; in other words, the offences were not the most serious examples of their kind. He went on them to deal with some very serious aspects of the offending in Quick. He pointed out at one stage that there was no reference to penetration. It is significant, however, that he accepted that the nature of the offences, or more importantly, the seriousness of the offences, was relevant to that whole exercise of the discretion in terms of whether or not there were exceptional circumstances.

That is significant in Quick's case because of what he did. He had, until shortly before the incident, been a school teacher of the 15 year old girl in question. There was an age gap of about 12 to 14 years. He had taken her to an isolated place, he had sucked on her breasts in the course of touching her and even had the audacity to film what he had done, and as Justice Chesterman went onto describe in his reasoning, that was particularly serious. In paragraph 39 he said, "What makes this case relatively serious was the great discrepancy in age between the respondent and his victim and his position of influence over her which came from the fact that he was her teacher.

There was, as well, the element of premeditation and deceitful recording of the assault for his later gratification. The circumstances of the offence were in accordance with established principle such as to command a term of actual imprisonment. The circumstances personal to the respondent which I have described, while being more or less powerful points of mitigation, are not exceptional neither by themselves nor in combination.

Here, there is no element of the position of influence of teacher. They were strangers. Certainly, there is a great age discrepancy, far greater in this case than the one in Quick. It seems to me that whilst his behaviour was persistent in terms of coming back, it did not have the same issues of premeditation that were involved in Quick. As I said, this is something that was more consistent with that very passage I quoted earlier from the report of Dr Bishop, which I would describe more as a drunken bumbling attempt to do something, although obviously inappropriate and obviously serious.

It seems to me that in this case, that a combination of all of the matters that have been identified, coupled with the fact that this offending is very much at the lower end of the scale for this type of offending, justifies the conclusion that there were exceptional circumstances in this case and I believe that in the circumstances, the Magistrate was in error in finding otherwise  It seems to me that the Magistrate failed in exercising her discretion in that regard to place any real weight on the fact that this offending was very much at the lower end of the scale. I have already found error in relation to two matters which of itself justifies my exercising the discretion on sentence again, but I should add that I also believe that the sentence imposed in the particular circumstances of this case was manifestly excessive.

I was provided with a number of decisions which showed a range of sentencing for indecent treatment of children from non-custodial sentences to custodial sentences; I will not refer to all of them in my decision. The prosecution did rely very heavily on a decision of GAF v. QPS [2008] QCA 190. The argument advanced was to the effect that there, there was touching which fell short of actual touching of the genitals, yet nonetheless, a sentence of 15 months suspended after four months was not interfered with. It was argued that by analogy therefore, the sentence here was well within range. I have, however, read closely the decision in GAF and there are a number of features in that case which make it far more serious than this one.

For a start, the offender was in a position of trust with a young school girl who had been placed effectively in his care. Secondly, there was that element I spoke of earlier in terms of the secretive-type behaviour. The young girl was taken to a motel where the offending occurred. The incident was quite prolonged. He commenced by rubbing her on the legs using cream. This went on for sometime to the point where he started rubbing her around the upper legs and also at the lower part of her bottom. What made it particularly serious was what he said at the time. He made some grossly inappropriate and suggestive comments about cunnalingus, asking her at one stage as to whether she had ever been growled out and on another stage if she had ever been licked out, and apparently these inquiries were made over and over again on the facts. He suggested she have a shower and he would give her a full body massage.

So, there are substantial differences to the situation I have described here. I have already mentioned what I described at the bumbling, stumbling nature of what the applicant did here, and it is also significant that he never offered to go on with it, as was the case in the matter of GAF. In fact, he went on the same train as the boy, but got off the next station and there was no suggestion that he attempted to follow the boy and go on with things by following him to his station or doing something else on the train. The incident involving the complainant in GAF was a much more pronounced one. So, whilst I could well understand why the sentence was not interfered with in GAF and whilst it was accepted that that was very much the high end of the range, it seems to me that on my analysis of all of the cases, that the particular offending here is such that it did not automatically come with the range of actual imprisonment.

In view of my earlier findings, it seems to me appropriate that I should now exercise my own discretion on sentence. The main aggravating features for the purposes of that exercise are the age of the child, and secondly, the impact upon the child which is summarised in the victim impact statement. There are, however, numerous mitigating factors that are relevant here. I will not repeat them because they are the very ones that I have summarised in relation to the argument on exceptional circumstances. It seems to me that a more appropriate sentence, particularly having regard to the fact that he has now already served four days' imprisonment, would be to impose a shorter period of imprisonment that was applied and to suspend that after four days, in other words, effectively today.

So, I set aside the penalty imposed by the Magistrate in this case. In the circumstances, I order that he be sentenced to six months' imprisonment to be suspended after he serves four days' imprisonment for an operational period of 12 months. I declare that a total of four days from the 6th of August 2012 to the 10th of August 2012 be time served under that sentence.