R v GZ

SUPREME COURT OF QUEENSLAND

CITATION: R v GZ [2007] QCA 225

PARTIES: R / v / GZ / (applicant)

FILE NO/S: CA No 137 of 2007 / DC No 797 of 2007

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Brisbane

DELIVERED EX TEMPORE ON: 17 July 2007

DELIVERED AT: Brisbane

HEARING DATE: 17 July 2007

JUDGES: Williams and Keane JJA and Mullins J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: 1. Application for leave to appeal against sentence dismissed 2. Warrant issue for the arrest of the applicant to lie in the registry for seven days

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant pleaded guilty to attempt without legitimate reason to record an indecent visible image of a child under 16 years with an aggravating circumstance of being a guardian – where applicant sentenced to nine months imprisonment, suspended after two months, with operational period of 12 months – whether requirement of actual custody for part of the sentence made the sentence manifestly excessive / R v Fereiro [2006] QCA 10; CA No 335 of 2005, 6 February 2006, considered / R v Quick, ex parte Attorney-General (Qld) [2006] QCA 477; CA No 277 of 2006, 17 November 2006, considered

COUNSEL: R A East for the applicant B G Campbell for the respondent

SOLICITORS: Legal Aid Queensland for the applicant / Office of the Director of Public Prosecutions (Queensland) for the respondent

MULLINS J: On 22 June 2007 the applicant pleaded guilty to one count of attempt without legitimate reason to record an indecent visible image of a child under 16 with an aggravating circumstance of being a guardian. He was sentenced to imprisonment for nine months to be suspended after two months for an operational period of 12 months. The applicant applies for leave to appeal against sentence on the ground that the sentence was manifestly excessive by reason of the imposition of an actual custodial component. There is no challenge to the head sentence. The applicant was granted bail pending this application after having served nine days in custody.

The applicant was 54 years old at the time of the offence which was committed in June 2006. He was the stepfather of the complainant who was 13 years old at the time of the offence. The applicant had no relevant prior criminal history. The applicant had become secretly obsessed about his stepdaughter. It was not alleged that he had touched her inappropriately in any way. He installed a video camera in the bathroom on a Friday. The family went away for the weekend.

In order to operate the video camera had to be activated manually. The applicant had not activated the camera, however, before the complainant took her shower on the Monday night. There was not sufficient time to do so after the complainant announced that she was going to have a shower. During the complainant's shower the vent cover concealing the camera fell to the floor of the shower and the camera was exposed. The applicant's wife subsequently pulled the camera out, damaged it and left the house with the complainant. The applicant attempted suicide later that night by carbon monoxide poisoning but was stopped when discovered by his wife when she returned to the house.

After the discovery of the camera the applicant apologised immediately to the complainant who at first did not make a complaint to the police. The complainant did mention the incident to a school counsellor some days later who reported the matter which led to the involvement of the police. The complainant was interviewed. When the applicant was interviewed he cooperated fully with the police and confessed. The camera was examined by the police and it was confirmed that no images had been taken of the complainant. The applicant pleaded guilty at a hand-up committal.

The applicant's marriage was in trouble prior to the incident and then ended. The applicant, who had an excellent work history, resigned from his position. The applicant ceased contact with the complainant. The complainant required counselling from her medical practitioner as a result of the incident.

At sentence, the applicant sought to bring himself within the ambit of section 538 of the Criminal Code. He therefore gave short evidence and was cross-examined. The sentencing Judge rejected the applicant's claim that he had desisted from his plan to film the complainant of his own motion. The Judge's rejection of the applicant's evidence is not challenged. The sentencing Judge described the applicant as a most unimpressive witness and considered that the applicant's rejected evidence was relevant to whether the applicant was truly remorseful about what happened or whether the applicant's concern was for what might happen to himself.

The sentencing Judge referred to the importance of deterrence in relation to offences of this type, that there was quite an amount of planning and action involved in setting up the equipment and the applicant's position of trust in relation to the complainant. The sentencing Judge accepted that the maximum allowance should be made for the applicant's cooperation in the administration of justice and that after the offence was discovered the applicant was depressed and had suicidal ideation which resulted in the serious attempt at suicide. The sentencing Judge noted, however, that the remorse revealed by the applicant's apology to the complainant immediately after the incident and admission to the police had to be balanced with the applicant's unacceptable and dishonest explanation for why he said he desisted. The sentencing Judge accepted that the applicant had good references and a good work record in both paid employment and charity work and he was shamed from the charge and conviction. There was also the fact that the applicant had suffered anxiety during the period of 12 months between the offence and the sentence. The Judge noted that the applicant was seeking to film the complainant for self gratification and had no commercial purpose.

The sentencing Judge relied on the approach taken by Chesterman J in R v. Quick ex parte Attorney-General Queensland [2006] QCA 477 and, in effect, concluded that there were no exceptional circumstances to justify imposing a sentence on the applicant which did not require some time in actual custody. The decision in Quick followed a long line of authorities beginning with R v. Pham [1996] QCA 3 that sexual abuse of children should ordinarily mean detention in custody in the absence of exceptional circumstances. It is contended for the applicant that the sentencing Judge failed to give sufficient weight to the nature of the offence itself which, it is submitted, was an exceptional circumstance.

The applicant's submissions emphasise that the distinction between his case and that of Quick is that Quick involved completed offences whereas the applicant's offending was at a significantly lower level and no image was actually taken. The sentencing Judge was clearly cognisant that he was sentencing for the offence of attempt rather than the completed offence and the effect that had on reducing the maximum penalty. It was fortuitous, though, that the camera was discovered before the applicant had an opportunity to activate it. No credit was due to the applicant for the failure to complete the offence. The applicant's submission does not give sufficient weight to the consequence of the offence for the complainant, the extent of preparation involved in installing the video camera in the ceiling of the bathroom, the significant breach of trust due to the applicant's position as stepfather and the need for general deterrence.

Although the sentence imposed in R v. Fereiro [2006] QCA 10 of 18 months' imprisonment suspended after eight months for an operational period of three years was for the completed offence. The factors which justified that sentence were similar to those involved in this matter and support the conclusion reached by the sentencing Judge that the circumstances of the applicant's offence did justify that some of the sentence be served in actual custody. I therefore would dismiss the application for leave to appeal against sentence. A warrant should issue for the arrest of the applicant but it should lie in the Registry for seven days prior to execution.

WILLIAMS JA: I agree.

KEANE JA: I agree.

WILLIAMS JA: The order of the Court is that the application is dismissed. A warrant should issue for the arrest of the applicant but it should lie in the Registry for seven days.