Duncalfe v Cross [2005] QDC 91

DISTRICT COURT OF QUEENSLAND CITATION: Duncalfe v Cross [2005] QDC 091 PARTIES: SIMON JOHN DUNCALFE Appellant v AARON CROSS Respondent FILE NO/S: D3865 of 2004 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Brisbane DELIVERED ON: 27 April 2005 DELIVERED AT: Brisbane HEARING DATE: 18 April 2005 JUDGE: Alan Wilson SC,DCJ ORDER: Appeal dismissed CATCHWORDS: CRIMINAL LAW – SENTENCE – ORDER THAT CONVICTION NOT BE RECORDED – APPROACH TO EXERCISE OF DISCRETION – RELEVANT CONSIDERATIONS – Penalties and Sentences Act 1992 Penalties and Sentences Act 1992 Dansie v Kelly ex parte Dansie (1981) Qd R 1 House v R (1936) 55 CLR 499 R v Briese, ex parte Attorney-General (1998) 1 Qd R 487 R v Brown, ex parte Attorney-General (1994) 2 Qd R 182 COUNSEL: Mr P E Smith for the Appellant Mr M Hungerford-Symes for the Respondent SOLICITORS: Gilshenan & Luton Lawyers for the Appellant Director of Public Prosecutions (Queensland) for the Respondent [1] The Appellant is a male born 31 July 1978. On 29 September 2004 he pleaded guilty in the Magistrates Court to four counts of wilfully and without lawful excuse doing an indecent act, namely recording video footage of a female in a change room. He was fined $700 and a conviction was recorded. The appeal asserts the -- 1 of 5 -- 2 sentence was manifestly excessive, but is directed primarily against the recording of the conviction. [2] The facts surrounding these offences are not in dispute. On 23 September 2004 the Appellant was observed over the space of about an hour at the City Beach Store at Indooroopilly Shoppingtown. He entered the change rooms on a number of occasions and was seen to place a bag on the floor, and slide it from one side of the cubicle to the other. The partitions between the rooms do not reach the floor. He left the store but was asked to return, and then took a digital camera out of his bag and removed a memory card, and placed it down the front of his pants. He was taken to the Indooroopilly Police Beat where he produced the memory card which contained five digital video clips, four of which lasted about three minutes each and contained images of four different females, all of whom appeared to be teenage girls, who were changing clothes. [3] The defendant was co-operative, and made full admissions to the police. He entered a plea of guilty at the first opportunity. He has no prior convictions. On sentence references were tendered from a veterinary surgeon and a minister of religion, the latter of whom said he had known the Appellant for 11 years and this behaviour was “totally out of character”. [4] The Appellant lives in Japan but had returned briefly to Queensland to attend the wedding of his best friend. He works there as a self-funded missionary offering counselling and support to Japanese youth. The work is not remunerative and he supplements it by teaching English to persons of various ages, as a coordinator for a children’s English teaching program. He also teaches English to professional businessmen. [5] His solicitor told the sentencing Magistrate that: In relation to the offences he instructs … that he purchased his camera some eight or nine months ago and while he’s been living in Japan he has hired a number of videos some of which included a candid type video clips of women in various stages of undress. Its clearly inappropriate behaviour for him to be conducting over here in Australia … once he found that he actually had the same capabilities with his camera he tried it at home … and out of some … morbid and inappropriate curiosity he took it one step further and actually attended City Beach where he placed the camera beneath the change rooms and filmed unknown females (emphasis added) [6] The solicitor also submitted: … My client is concerned that he may have stepped over the line in relation to his charity work and his work at the Assembly of God Mission in Tokyo. He is also extremely concerned about how it will affect his future income prospects or employment prospects. He’s part way through an architecture degree at University of Queensland but he’s not certain at this stage whether or not he would like to pursue the architect’s side of things or the education. [7] The learned Magistrate commented1 that the reference from the Minister of Religion was unhelpful in that it spoke of this conduct being out of character, but the submissions on the Appellant’s behalf mentioned a prior interest in just this sort of film. She also noted that the reference spoke of ongoing counselling but that, it 1 T4, ll 30-34 -- 2 of 5 -- 3 seems, would not be occurring at least in Australia. The learned Magistrate went on to say: I would intend to record a conviction with the only exception being that I would be prepared to stand the matter down for psychological report and also community corrections, because apart from that I can’t see that I could possibly exercise my discretion in this case not to record a conviction. [8] The transcript is silent as to whether or not the Appellant’s legal representative took instructions from him about this matter; but, certainly, it indicates she did not object when the Magistrate went on to pronounce sentence. The reasons are short: I intend to deal with this matter though by way of a fine, particularly in view of the fact that you - there’s no real prospect of you undertaking any community based orders. You are convicted and fined $700, in default of payment within three months 12 days imprisonment. A conviction is recorded. [9] This court’s power in an appeal of this kind is set out in s 225 of the Justices Act 1886. The discretion is considered anew 2 but subject to settled principles3 . [10] It is said the Magistrate was wrong in rejecting the character evidence. It was clear the Appellant had no prior criminal history and the submission is that the referees mention of the conduct as being “out of character” was plainly directed at the actual behaviour which constituted the offence. I do not think that follows; submissions on the Appellant’s behalf showed, it appears, a prior interest in films showing “candid” behaviour of the very kind he was apparently attempting to capture himself. [11] Secondly, the passages from the sentencing hearing set out above are said to show error on the part of the learned Magistrate in that she either failed to exercise the discretion vested in her by s 12 of the Penalties and Sentences Act 1992, or failed to take into account relevant considerations. The section provides: 12(1) A court may exercise a discretion to record or not record a conviction as provided by this Act. (2) In consideration whether or not to record a conviction, a court must have regard to all circumstances of the case including – (a) the nature of the offence; and (b) the offender’s character and age; and (c) the impact that recording a conviction will have on the offenders – (i) economic or social wellbeing; or (ii) chances of finding employment. [12] In the absence of anything to suggest the Appellant wished to avail himself of the opportunity to obtain psychological or other report, I do not think it can be said to be unfair that the Magistrate then proceeded to sentence; and, on the material before her at the time. [13] She had received submissions addressing the nature of the offence and the offender’s character and age and was told there was, at least, a possibility his future employment prospects might be affected. Further information was presented at the 2 Sanewski v Lohman, unreported, Wylie QC, DCJ, 22 September 1992, 67/1992 3 House v R (1936) 55 CLR 499; Atkinson v Atkinson (1969) VR 278; MacTaggart v Burleigh Marr Distributors P/L (2005) 25 Qld Lawyer 273 per Skoien SDCJ at 275 -- 3 of 5 -- 4 appeal hearing about the possible effect on the Appellant’s employment as an architect, and showed some hazards, but in light of the uncertainty about that career path4 and the fact that no adjournment was sought to obtain further evidence about those effects, it was not unreasonable for the Magistrate to proceed on the information she had which was relevant to s 12(2)(c). [14] It is also said the learned Magistrate erred in her remark that there was no prospect of the Appellant undertaking community based orders. It is true his solicitor said “… if my client receives any kind of punishment that will keep him in the country then that would be a more face to face (contact with Pastor Muller)”, but the Magistrate had also been told that the Appellant was returning to Japan later that week and starting work there the day after his arrival, factors which properly told against a community based order. [15] Finally, the phrase in the sentencing remarks “… I can’t see that I could properly exercise my discretion in this case not to record a conviction” is said to indicate a want of proper attention to the discretion and the requirements of the section but, again, although the sentencing comments are short they may equally mean, and I think can reasonably be construed to mean, that having taken into consideration all the relevant matters, and exercising her discretion, she had come to the view a conviction should be recorded. [16] The Magistrate was required to consider all of the factors relevant to the discretion: R v Brown, ex parte Attorney-General (1994) 2 Qd R 182 per Macrossan CJ at 185, Lee J at 193; and, obliged to balance all the relevant elements of it. The evidence did not suggest anything more than a bare possibility of future employment prospects being effected. The offender was no longer youthful and, while he had no previous convictions, these acts were an attempt to obtain for himself video material in which he had previously developed, as was conceded, an unhealthy interest. Importantly, the offences themselves required a degree of planning and organisation, and involved the disturbing invasion of the privacy of shoppers in a place where privacy is important. [17] The philosophical underpinning of s 12 was discussed by Thomas and White JJ in R v Briese, ex parte Attorney-General (1998) 1 Qd R 487 at 491: … It is enough to note that the making of an order under s 12 has considerable ramifications of a public nature, and courts need to be aware of this potential effect. In essence a provision of this kind gives an offender a right to conceal the truth, and it might be said, to lie about what has happened in a criminal court … on the other hand the beneficial nature of such an order to the offender needs to be kept in view. It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation, and it may be thought to be a reasonable tool that has been given to the courts to avoid under oppression. [18] While the reasons attached to the sentence are less than fulsome, it is relevant these proceedings were apparently being conducted on a busy court day5 . Nevertheless, 4 T4, ll 13-16. 5 Dansie v Kelly ex parte Dansie (1981) Qd R 1 per Dunn J at 6. -- 4 of 5 -- 5 they are sufficient to show that the learned Magistrate was alert both to the discretion and the factors relevant to it and it has not been shown that she has acted upon a wrong principle or allowed irrelevant matters to guide or affect her decision or ignored some material consideration6 . I am not persuaded the decision to record a conviction involves error. [19] Although the outline of submissions from the Appellant contended that a bond or fine up to that imposed was appropriate, and the Notice of Appeal attacked the entire sentence, no submissions were devoted to the quantum of the fine and it was not, in the circumstances, manifestly excessive or inappropriate. [20] The appeal is dismissed. 6 House v R (1936) 55 CLR 499 at 504-5. -- 5 of 5 --