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 sentence was manifestly excessive, but is directed primarily against the recording of the conviction.

1. 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.

1. 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”.

1. 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.…