Commissioner of Police v Lloyd-West [2018] QDC 153

DISTRICT COURT OF QUEENSLAND CITATION: The Commissioner of Police v Lloyd-West [2018] QDC 153 PARTIES: THE COMMISSIONER OF POLICE (appellant) v LUCIEN JOHN LLOYD-WEST (respondent) FILE NO/S: 4972/2017 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 10 August 2018 DELIVERED AT: Brisbane HEARING DATE: 6 July 2018 JUDGE: Richards DCJ ORDER: Appeal allowed. The sentence of 18 months is set aside A sentence of 2 ½ years is imposed. The other sentences remain. CATCHWORDS: CRIMINAL PROCEDURE – APPEALS – APPEAL AGAINST CONVICTION AND SENTENCE – APPEALS AGAINST SENTENCE – PROSECUTION APPEALS AGAINST SENTENCE – where the respondent was sentenced to ten counts of indecent treatment of a child under 16 and one count of grooming a child under 16 – where at the time of the offence the respondent was 37 and the complainant was 14 – whether the complainant’s consent was given too much weight as a mitigating factor – whether the expert opinion was misinterpreted by the Magistrate – whether the sentence imposed was manifestly inadequate SOLICITORS: Mr G Wong of the ODPP for the appellant Mr Rana of GTC lawyers for the respondent [1] On 24 November 2017 the respondent was sentenced in relation to 10 offences of indecent treatment of a child under 16 and one offence of grooming a child under 16. He was sentenced to three years’ probation in relation to the indecent treatment offences and 18 months’ imprisonment suspended after two months for an operational period of three years in relation to the grooming. He was 37 years of age at the time -- 1 of 7 -- 2 of the offences. He had three prior criminal convictions for drug offences which were of little relevance to these offences. Facts [2] On 8 August 2017 the respondent messaged the complainant on the social media platform, Grindr. The complainant at that stage was 14 years of age. Whilst Grindr is a platform for people who are over 18 years of age, the complainant disclosed his age to the respondent and spoke of his desire for sexual experiences with an older man. The contact continued over a number of days. They used Snapchat, an online messaging platform, to send images of themselves. They agreed to meet for a sexual encounter. [3] On 12 August the respondent picked up the complainant from outside a local restaurant. They drove to a park in Cleveland and stopped on the side of the road. They kissed and the respondent, with the complainant’s consent, sucked on the complainant’s penis. The complainant then sucked on the respondent’s penis. They then went to a nearby toilet block and the respondent told the complainant to first go into the cubicle so as not to arouse suspicion. The respondent followed him and performed oral sex on him until ejaculation. The complainant then did the same to the respondent. They dressed and agreed to meet again. The respondent dropped the complainant back at a street in Cleveland (these acts constitute Counts 1 to 4 of the charges). [4] On 15 August after further messages were exchanged on Snapchat they arranged to meet that afternoon. They met during the complainant’s art class after school. The complainant was in school uniform. They tried to enter a locked toilet before returning to the car. In the car they kissed before fellating each other. After a time the complainant returned to his art class and the respondent waited. When the complainant returned the respondent took the complainant to a secluded location in Cleveland. They walked into bushland. They kissed again. The respondent permitted the complainant to fellate him and reciprocated the act. The respondent then anally penetrated himself by lowering himself onto the complainant’s penis. He then masturbated until ejaculation onto the complainant’s chest and then fellated the complainant until he ejaculated in the respondent’s mouth. The respondent then took -- 2 of 7 -- 3 him back to the street in Cleveland. The complainant walked home. These events represent charges 5 to 10. [5] On 17 August 2017 the police received information in relation to the offending. The police on 23 August contacted the respondent pretending to be the complainant and arranged to meet at a shopping centre. The respondent went to the meeting location where he was arrested. Lubricant and condoms were found in his car. He had a mobile phone that he used to communicate with the complainant’s profile on Grindr. Submissions [6] The respondent, at the time of sentence, was a university research assistant having obtained a degree in psychology and was also a high school student liaison officer. He suffered from bi-polar disorder. At the sentence hearing a psychological report was tendered on his behalf from Dr Yoxall.1 In that report it was noted that he had difficulties maintaining full-time work because of his mental health issues but had been doing some casual work. He previously had been employed: as a professional photographer at a resort on Moreton Island, taught English in Japan for three years, worked on a cruise ship and then worked at OfficeWorks until mental health issues made that impossible. [7] The psychologist indicated at the time of the offending he was not experiencing symptoms of either hyper-mania or depression although he was not consistent with his medication. He told the psychiatrist that he talked to the child online over several days and he felt sorry for him. He maintained he initially planned to meet him to check on his welfare and that he had no intention of engaging in sexual activity. He said he was not sexually attracted to him but the child was very keen to pursue sexual interaction, that the child was the instigator of the interactions and that it had only happened on one day. This was, of course, inconsistent with the Crown case and the facts to which he pleaded guilty. The psychologist opined:2 “In my opinion Mr Lloyd-West’s risk of reoffending is high. Mr Lloyd-West denies a deviant sexual interest. However the nature of the offending, and particularly the level of planning, organisation, and the persistent pursuit of sexual interaction with the male victim child is inconsistent with this claim. Mr Lloyd-West maintained that he felt an emotional connection with the male victim child and felt empathy 1 Exhibit 4 2 Exhibit 4 page 20 paragraph 8 -- 3 of 7 -- 4 for him regarding his reported circumstances. A recent meta-analysis identified emotional congruence with children as a moderate predictor of sex offending against stranger male children. Furthermore on assessment Mr Lloyd-West minimised his offending and neglected to fully disclose the fact that he engaged in contact offences against the victim on two dates rather than one; or that he was apprehended in a public place whilst attempting to meet up with the male victim child again. Mr Lloyd-West also demonstrated distorted cognitions in attitude supportive of sexual assault, stating that the male child victim instigated the sexual interactions and was dominant in their interactions; and that the male child victim then boasted about the abuse to his school friends. Mr Lloyd-West could provide an academic account of what is known about impact of sexual abuse on children but demonstrated them as an empathy to the victim in regard to the offending against the victim.” [8] The Crown maintains that the sentencing Magistrate: (a) gave too much weight to the complainant’s consenting attitude as a factor mitigating the culpability of the respondent’s offending; (b) misinterpreted Dr Yoxalls’ expert opinion and consequently failed to give proper regard to the significance of the respondent’s risk of reoffending and; (c) failed to properly appreciate the objective seriousness of the offending. [9] In sentencing the respondent, the Magistrate indicated that whilst she saw the level of offending as serious, she thought it was mitigated to a quite considerable degree by the fact that this was a consensual and willing complainant. The Magistrate did not agree with all of the findings in Dr Yoxall’s report. She was entitled to do that. She indicated that she was not convinced that the respondent’s risk of reoffending was high but accepted the conclusion that time in prison would be difficult for the respondent. This was particularly in relation to the psychologist’s opinion that his mental illness would render him a vulnerable person in a prison environment both in terms of exploitation, violence and psychological decompensation. In sentencing the respondent, she found that there were no exceptional circumstances but in light of his mental health issues, his vulnerability and that the complainant was a “willing, active, eager 14 year old” who was “actively engaged in it” that a term of imprisonment with an earlier than usual suspension would be appropriate. [10] It is correct to submit that the Magistrate did not accept the psychologist’s opinion that the respondent was a high risk of re-offending and she specifically placed -- 4 of 7 -- 5 significant reliance on the fact that the complainant was not only consenting but seeking sexual experience. The Magistrate stated during submissions that she didn’t think the respondent would be a high risk of reoffending at all and that the psychologist elevated the risk due to his underplaying the interactions between himself and the child.3 However, she also noted that the laws in relation to under age children were there to protect them not only from exploitation but also from their own immature exploration. [11] It is fair to say that the respondent did not initiate the contact with the complainant however, he enthusiastically participated in the contact. The contact occurred on two separate occasions. The difference in age between the complainant and the respondent was significant, some 24 years. The child was only 14 years of age and therefore at a vulnerable stage of sexual development. The respondent was a school counsellor and therefore well aware of the vulnerabilities of teenagers. He had studied psychology so should have been aware of the need to protect young impressionable minds. The dealing itself was not at a low level. There was one occasion of permitting anal sex and on each occasion there was oral sex. The respondent was willing to meet the child on a third occasion when the police intervened. It is clear, therefore, that the respondent was willing to continue the relationship even though he knew that it was wrong. When he spoke to the psychologist he down-played his involvement and down-played the number of times that he and the complainant met. The psychologist indicated that he had a lack of empathy. [12] In my view, the learned Magistrate did place too much emphasis on the fact that the child was not coerced. The fact that the child may have found someone else to participate in sexual activity with is not in my view a relevant consideration. The findings of the psychologist that there was a high risk of reoffending should not have been dismissed merely on the basis that the Magistrate’s opinion was different. This is serious offending even given that there was no coercion by the respondent. The sentence is clearly manifestly inadequate even taking into account the respondent’s mental health issues. 3 This was a misstatement of the psychologist’s reasons which are detailed in the quote from the report detailed at paragraph 7 of this judgement. -- 5 of 7 -- 6 [13] Her Honour went through comparable sentences at arriving at the sentence she imposed. She had particular regard to R v Clifford; ex- parte A-G (Qld)4 and GAF v QPS.5 Clifford was an unusual case. He was 29 years old when he rescued a distressed and intoxicated girl who was running along the street late at night. She would not go to the police or tell him her address so he took her to his home and she went into his bedroom and sex occurred. He thought she was 15. She was, in fact, 13 years old. She did not remember the act but he volunteered the information to the police and pleaded guilty to unlawful carnal knowledge. There was no grooming in that case. The court noted that there was no planning in this case and that the circumstances were very special verging on the bizarre. In GAF the appellant pleaded guilty to one offence of indecent treatment of a child under 16 and imposed a sentence of 15 months imprisonment suspended after four months imprisonment. In that case the uncle of the 14 year old child took her out of school early, took her shopping, fed her and then took her to a motel where he rubbed cream on her legs and suggested he perform oral sex on her. He asked her this a number of times she refused and asked to be taken back to the shopping centre. Neither of those sentences were particularly comparable and neither were in my view as serious as this offending. [14] I accept the contention by the Crown that the head sentence of 18 months did not reflect the premeditation and persistence involved in the grooming; that the grooming resulted in two sexual encounters and that there were arrangements made for a third sexual encounter by the respondent. In those circumstances the appropriate sentence was one of two and a half years’ imprisonment with a suspension after something less than a third to take into account the respondent’s mental health issues. The Crown has appropriately indicated that as the appellant has already been sentenced to and completed a term of two months’ imprisonment, it would not be appropriate to return him to prison and in the circumstances the suspension period should not be disturbed. I accept that this is appropriate given that this is an Attorney’s appeal, however note that the period of actual imprisonment served would ordinarily have been lengthier. 4 [2006] QCA 492 5 [2008] QCA 190 -- 6 of 7 -- 7 Conclusion [15] Appeal allowed. The sentence of 18 months is set aside and in lieu thereof a sentence of 2 ½ years is imposed. The sentences are otherwise to remain. -- 7 of 7 --