R v Fereiro [2006] QCA 10

Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: On 5 August 2005 the applicant pleaded guilty to one count of recording an indecent visual image and two counts of indecent dealing. The offences occurred between 1 January 2004 and 1 August 2004.

On 11 November 2005 the applicant was sentenced to 18 months imprisonment suspended after eight months for an operational period of three years. The applicant seeks leave to appeal against the severity of this sentence on the ground that the sentence was manifestly excessive.

As to the circumstances of the offences, the applicant was a self-employed podiatrist who shared rooms with a physiotherapist. He secretly filmed women in various stages of undress in the physiotherapist's massage room which adjoined his own.

As to the first count, in contravention of s 210(1)(f) Criminal Code, the applicant secretly filmed the complainant, a 15 year old girl, in the process of undressing at the physiotherapist's.

As to the counts of indecent dealing, the complainant child had been referred to the applicant by the physiotherapist. On the occasion of the first count the applicant massaged her buttocks, her shoulders and lower back and then above her breasts. He also massaged her groin to the line of her underwear. On the second occasion he massaged her buttocks and then asked her to remove her top. He then massaged her slightly above her breasts and between her breasts.

On both occasions the child's mother was present. After the second visit the complainant raised with her mother her concern as to the applicant's conduct but both daughter and mother accepted that the applicant was providing professional care. The evidence established that proper podiatry care did not require massage above the knee.

As to the applicant's circumstances, he was born on 9 January 1971. He was 33 years of age at the time of the offences. He holds a Diploma of Applied Science and Podiatry. He had no previous convictions. As a result of these offences it seems to be highly likely that the applicant will lose his livelihood as a podiatrist, at least in the short term. The applicant's marriage has apparently broken down as a result of the publicity attending these offences.

The learned sentencing judge regarded the applicant as a brazen "predator". His Honour regarded the claims of deterrence as strong because the case involved a professional taking advantage of his position for his own gratification and in betrayal of the trust reposed in him by the client. His Honour took into account the financial loss likely to be suffered by the applicant as an aspect of his punishment and that the applicant has also suffered adverse publicity, resulting in the loss of his good name and his marriage.

On the applicant's behalf it is submitted that the circumstances of these offences are exceptional in that the complainant was not aware that the applicant was exploiting her sexually while he was massaging her. It is said that these circumstances served to put this offending in a low-level category of seriousness. The applicant contends that the sentence should be reduced to 12 months suspended after two to three months.

It is clear that the episode has been deeply disturbing both for the complainant and to her mother. The learned sentencing judge was disposed to regard the applicant's conduct as of distinctly greater criminality than that of the offender in R v Moffat [2003] QCA 95.

There the offender was a groundsman at a caravan park who had invited a girl aged 10 into his caravan. He then rubbed her upper thigh and the top of her vagina. In the Court of Appeal Justice McPherson, with whom the Chief Justice and Justice Atkinson agreed, regarded a sentence of imprisonment for 12 months as excessive and substituted a sentence of 12 months suspended after six months with an operational period of two years.

In my respectful opinion, the learned sentencing judge was correct to take the view that the applicant's criminality was substantially greater than that of the offender in R v Moffat.

Similarly in R v Pham [1996] QCA 3 the offender did not exhibit the elements of persistence over time and breach of trust apparent in this case.

Important in this case are the circumstances of a serious breach of trust of a person in a position to prey on young people and persistence which was involved in relation to the taking of the photograph and the two acts of indecent treatment.

As a result, in my respectful opinion, the imposition of a term of eight months in actual custody was not outside the range of a sound exercise of the discretion of the learned sentencing judge. I would dismiss the application for leave to appeal against sentence.

THE PRESIDENT: I agree. It is true, as Mr East for the applicant submits, that the applicant's offending has resulted in his loss of his profession, at least for the foreseeable future, and of his shaming in the community. The circumstances of his conduct set out by Justice Keane warranted nothing less. He has also lost his marriage. He did plead guilty at an early stage and was co-operative with the authorities. It seems he now has some insight into his conduct and has sought professional help so that he has some prospects of rehabilitation.

The offence had very serious aspects in that it was a breach of trust of a paramedic towards a juvenile patient and her mother, even though the touching was, in itself, relatively minor. In addition there was a secret video of the juvenile patient undressing preparing for the treatment from him. The offence has had a significant impact on the complainant and especially on her mother. Conduct by such a person towards patients does deserve a deterrent penalty. The maximum penalty on each count was 14 years imprisonment. The sentence imposed was, in all the circumstances, not lenient. (Compare Director of Public Prosecutions v Joseph, unreported, [2001] VSCA 151, CA No 105 of 2001, 7 September 2001.) It was, however, within the appropriate sentencing range in all the circumstances. I agree with Justice Keane that the application should be refused.

MUIR J: I agree with both reasons delivered and with the orders proposed.