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[2001] QCA 301
Court of Appeal (Qld)
2001-07-26
Murdo P, Davies JA, Philippides J
Original judgment source is linked above.
THE PRESIDENT: The respondent pleaded guilty in the
District Court at Brisbane on 16 March 2001 to one count of
indecent treatment of a child under 16 years and two counts
of stalking. He also pleaded guilty to a Commonwealth
summary offence of offensively using a telephone. He was
sentenced on each count to three years' probation with a
special condition that he comply with the recommendations of
Dr Curtis contained in paragraph 15.8 of Dr Curtis' report,
which was tendered at sentence as Exhibit 3 and which noted:
"Mr Reid should attend for regular physical cognitive and behavioural monitoring by Dr Gerald Whiting. He should also consult Dr Dan McLaughlin, Neurologist, again regarding the advisability of Aricept treatment which can delay the progress of dementing processes in some cases. Finally I note that there are hormonal maintenance treatments available on prescription to lower drives if there were to be a recurrence of the cerebrovascular incident and its sequelae. (Such recurrence and such an expression are now less likely than are other illness events.)"
No conviction was recorded and the respondent was also ordered not to communicate or to attempt to communicate with the complainants.
The appellant, The Attorney-General of Queensland, submits the sentence is manifestly inadequate in that it fails to reflect the gravity of the offences and to sufficiently consider general deterrence, placing too much weight on mitigating factors.
This case has some unusual features. The respondent was 70 years old at sentence and had no previous convictions. He was a well regarded former senior public servant who had been head of protocol in the Premier's Department. Many references were tendered attesting to his outstanding community service and good character. He had been actively involved in his church as a lay preacher since 1948 and has held lay positions in the church at local, State and national level. As a result of these charges, he informed his fellow parishioners of his conduct and resigned from all positions he held in the church.
He has also given outstanding service to the community through the Blue Nursing Association over many years. He was treasurer and chairman of its Sandgate centre from its inception in 1957 until 1998 when it was regionalised. He was made a life member of Blue Nurses in 1983 and was State Treasurer and Queensland Director-General from 1960 till 1990. He was National President of the Australian Council of Community Nursing from 1970 to 1980.
The three complainants were neighbours of the respondent, and all lived in a quiet cul-de-sac in an outer northern suburb. The complainant in the indecent treatment charge was aged 12 and collected stamps. The respondent called her over to give her some stamps and then asked if he could show her a tickly spot. The complainant followed him into his bedroom to collect the stamps. He pushed her onto the bed, lifted up her shirt and rubbed his fingers on the left side of her body near her left breast. The complainant had started to develop breasts and understandably felt uncomfortable with him after this incident. She complained to her friend, the complainant in count 3, and suggested they keep away from the respondent, which they did.
Count 2 concerns the same complainant. When she was 13 during September school holidays, she received offensive phone calls. The words spoken in the phone calls included, "Take off your clothes, I'm coming to get you." The caller said his name was Jonathan. He said things like, "You should see how big my cock is, I bet you have nice tits. I'm going to come and fuck you." The complainant handed the phone to her older brother, who abused the caller, but the caller continued making obscene statements.
The complainant received a further eight or nine calls over the September school holidays in a similar vein whilst the complainant's parents were at work. The calls stopped during the school term and recommenced on the first Monday following the commencement of the Christmas school holidays, again when her parents were at work. One day she did not answer the phone because she suspected that the caller was the person making the abusive phone calls and the phone rang out. She dialled *10# and found the call had come from a Telstra public pay phone. Her parents bought a caller display unit so that in future whenever she saw a call was from a pay phone, she would pick up the phone and immediately hang up.
When the family was away on holidays over the Christmas/New Year period, there were no calls received from the pay phone, which suggested that the caller knew her movements. The next morning after returning from holidays, the calls commenced again. The calls included threats of rape, and the caller was obviously disguising his voice.
The complainant's family suspected the respondent may be responsible and monitored his movements. When he left the house in his car, the complainant would shortly afterwards often receive a call from a pay phone. The respondent was away during the Easter holidays, but just before 19 June 2000, the complainant told the respondent that she was to have a pupil-free day on Monday, 19 June and would be at home. The complainant saw the respondent leave his home at about 9 a.m., returning later. The police were contacted and one police officer came to the complainant's house. The respondent went out again at about 11.15 a.m. with his wife. Another police officer maintained surveillance on the respondent and whilst his wife was elsewhere was seen to make a phone call from a public phone. The complainant received an offensive phone call and recorded it. Meanwhile, the police officer conducting the surveillance apprehended the respondent, identifying himself on the recorded phone call to the complainant.
The respondent said of the offences, "It was only meant to be a bit of fun. My wife will be devastated."
The second count of stalking occurred in a similar way and involved another close neighbour of the respondent and friend of the complainant in counts 1 and 2. The complainant in count 3 was also aged 13.
The summary offence concerned telephone calls to a third complainant, the nine year old sister of the complainant in count 3.
The experienced prosecutor at sentence was appraised of the mitigating factors and submitted that a three year probation order with special conditions was appropriate, but strongly urged that a conviction be recorded.
Victim impact statements, not surprisingly, demonstrated that the young victims and their families were very distressed and shaken by the respondent's offending behaviour, especially as he had been a trusted and respected neighbour and grandfather figure to the girls.
Dr Curtis in his report noted the respondent suffered from severe blood vessel disease (arteriopath) with coronary bypass surgery in 1983, hypertension and high cholesterol. He thought he also had early stages of Parkinson's Disease. He was depressed, reactive to being charged with these offences.
Dr Curtis opined that the respondent's offending behaviour was:
"Multi-causal given retirement, failing levels of intimacy and reduced physical closeness in the marriage and very severe cerebral ischaemic disease and an actual cerebrovascular stroke. The compulsive nature and lack of insight of the subject behaviours provide some additional indications or a presumption that the relative cerebral ischaemia and the associated atrophying of the frontal brain matter, including matter in the deeper nuclear material of the brain was the disinhibiting force and immediate cause of the indexed crimes.
In the main such disinhibited behaviour occurs in the context of nursing home residents for the frail aged. But cases such as the subject crimes of Mr Reid do come to light from time to time. Despite current partial understanding of the functions of the brain in both anatomical and holistic senses, it is known and accepted that the frontal lobe syndrome can play a significant role as a structural pathological substrate in the type of subject crimes addressed herein."
The respondent pleaded guilty at an early stage after a full hand-up committal, so that no complainants or family members were cross-examined; he expressed remorse for his conduct.
Despite the submissions made by the experienced prosecutor at sentence, the appellant now contends that a period of actual imprisonment should have been ordered and submits that a term of six months' imprisonment followed by three years' probation with the additional special conditions should have been imposed.
The appellant emphasises the serious nature of the offences, which involved the targeting of children in an explicitly sexual way including threats to rape them, and that the conduct involved three separate victims over an extended period. The respondent's conduct was calculated and persistent; he took care to cover his tracks and disguised his voice.
The appellant submits that the offences of stalking are akin to the offences of indecent dealing and should carry comparable penalties. Although the offences of stalking were serious, there is in my view a real difference between the highly offensive telephone calls made by the respondent to the complainants and offences of actual indecent dealing.
The offence of indecent dealing in count 1, to which the respondent pleaded guilty, was not a serious example of that offence. Although the respondent's behaviour was undoubtedly serious and deviant, it did not place him in the category of child molesters who should always be sent to gaol, referred to by Fitzgerald P in R v. Solway, CA No 164 of 1995 and CA No 187 of 1995 22 August 1995. Nor is it a case comparable to R v. Pham, CA No 435 of 1995 6 February 1996. Both those cases were more serious than this, and did not have the significant mitigating factors applicable here.
Similar comments can be made as to the cases relied on by the appellant which involved stalking. Hallett, CA No 301 of 1997 21 November 1997, Holznagel, CA No 426 of 1997
6 February 1998 and Cook, CA Nos 459 and 490 of 1994
23 March 1995. These matters are not, in my view, comparable. The case of R v. Maniadis, 502 of 1995
19 July 1996, is more comparable and tends to support the sentence imposed here even though the mitigating circumstances in Maniadis were not as significant as those here.
The prosecution is not lightly permitted to depart from a concession such as was made at first instance as to the appropriate sentence. See Everett v. The Queen [1994] HCA 49; (1994) 68 ALJR 875 at 877, 879, 880 and 882. This is not an appropriate case to allow such a departure.
In the light of the respondent's previous good character, which demonstrated that this behaviour was out of character and his significant health problems which contributed to his behaviour according to the undisputed report of Dr Curtis, the respondent in my view need not have been sentenced to a term of actual imprisonment and the concession made by the prosecutor at sentence was fairly and properly made.
A suspended sentence, or perhaps even a short period of custody followed by probation would have been within range. As the appellant concedes, the respondent was in need of supervision. The lengthiest possible period of probation, that of three years, was in my view the preferable sentence.
The only real issue is whether the learned sentencing Judge erred in failing to record a conviction, as he was urged to do by the prosecutor at sentence. This issue was identified by the learned and experienced sentencing Judge, who clearly gave this matter careful consideration. In determining not to record a conviction, he was influenced by the progressive disease which is affecting the respondent, and by the respondent's otherwise good character and excellent community service.
In R v. Clark, CA No 283 of 1998 8 October 1998, McPherson JA noted:
"The mental condition of the offender even though it falls short of amounting to an excuse or justification under the Code is ordinarily relevant to the question of sentence or its size and not only to the deterrent aspect of the matter, but also to the element of moral culpability for the commission of the offence."
I am conscious of the considerable circumspection required before interfering in the discretionary exercise of whether or not to record a conviction.
Section 12 of the Penalties and Sentences Act 1992 gives the Court a discretion whether or not to record a conviction and requires the Court to have regard to all the circumstances of the case including (a) the nature of the offence (b) the offender's character and age and (c) the impact of recording a conviction will have on the offender's economic or social wellbeing or chances of finding employment.
In this case, the nature of the offences was so serious that the recording of convictions was warranted, but this needed to be tempered by the offender's excellent prior character over a lifetime and the physical and mental illness which contributed to his offending behaviour and moral culpability.
The community also has an interest in the recording of convictions in serious cases: see R v. Breeze [1998]
[1997] QCA 10; 1 QdR 487; 92 ACrimR 75 at 78 to 80 and R v. Hoch [2001] QCA 63, 26 February 2001. In R v. Gallagher [1999] 1 QdR 200 Pincus JA said at 208:
"Although I take into account in favour of therespondent that he has suffered severely in the way disclosed by the record and discussed by McPherson JA, it appears to be necessary that convictions be recorded. If that is not done, then under section 5(2) of the Criminal Law Rehabilitation of Offenders Act 1986, the respondent will be legally entitled to conceal these convictions if asked to disclose whether he has committed any offences. The result could be that an inquirer with a real need to know about offences of the present character, sexual offences against a young child, might be misled with unfortunate consequences. I note that by the Justice Legislation Miscellaneous Provisions Act 1996, section 9(a) of the Criminal Law Rehabilitation of Offenders Act 1986 has been amended so as to remove the protection of section 5 in relation to applicants for certain positions in which they might have among other things responsibility for children. This is a summary of the general effect of the amendment."
Whilst the offences in Gallagher were much more serious than these offences, the comments nevertheless are apposite.
Despite the role of the respondent's physical and mental illness in the commission of these offences, the offences remain serious and the community has a right to know of them especially where the medical evidence does not demonstrate that the risk of reoffending is removed.
In failing to record a conviction for these serious offences, the learned primary Judge erred in exercising his discretion. As the appellant points out, this was not a demented old man completely lacking in control. The offences involved a degree of planning, premeditation and guile. His conduct caused great anxiety to the complainants. The prospect of his reoffending is not eliminated and the community has a right to the protection of recorded convictions.
I would allow the appeal only to the extent of ordering that a conviction be recorded on all counts. I would otherwise confirm the sentence imposed at first instance.
# R
Reid; AG \[2001\] QCA 301
(1994) 68 ALJR 875