Lehmann v Mash

[2006] QDC 217

[2006] QDC 217

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE WHITE

Appeal No 66 of 2006

BRIAN DAVID LEHMANN	Appellant
and
DET SNR CONST STUART MASH	Respondent
CAIRNS ..DATE 25/05/2006
JUDGMENT

25052006 D.1 T3/AS M/T CNS1/2006 (White DCJ)

HIS HONOUR: The appellant was convicted in the Magistrates	1
Court at Mareeba on 30th of March 2006 of two offences of wilfully exposing a child under the age of 16 years to an indecent picture and one offence of exposing a child under the age of 16 years to an indecent videotape. The offences were

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alleged to have occurred between the 21st of September and the
16th of October 2005.

The child was a girl aged 14 at the time. On one occasion the appellant showed the child pornographic images on a website,

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on the second occasion he showed the child pornographic images
on a website and a pornographic video movie. I am told that
the pornography was confined to sexually explicit activity
involving adults, it did not involve any child pornography,

violence or such a thing as for instance, bestiality.

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At the time the child was working part time for the appellant on his farm. The two incidents occurred a week or two apart. The child's work on the appellant's farm ceased about six

weeks later, there was no suggestion that the cessation of

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that employment had anything to do with the commission of
these offences. It may therefore be assumed in my view, that
at least for a time, the child was not so troubled by what had
occurred to cease her employment, although I accept that she

would have been troubled and that continued to the result that

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she eventually made a complaint. The other matter of
significance is that there was no attempt by the appellant to
repeat the activity, or to in any way involve the child in
other improper behaviour.
25052006 D.1 T3/AS M/T CNS1/2006 (White DCJ) 2 JUDGMENT 60

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These offences are in no way trivial; the community and the courts are concerned and abhor indecent behaviour towards children, particularly if that behaviour may result in the corruption of children. On the other hand, the actual

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offences must be viewed as being at the lower end of the scale of seriousness. In addition, of course, the appellant pleaded guilty to the offences. He was entitled to credit for that.

He has one offence on his criminal history; I accept that it

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was a technical breach of a domestic violence order. He was not convicted but was released on a very modest bond. In my view no weight should be given to that and he appears to be a
person of otherwise good character. At the hearing in the

Magistrates Court a significant number of testimonials were

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tendered from people who know him.

Though what he did was wrong, but in my view the sentences
imposed in the Magistrates Court were manifestly excessive.

Mr Pedder, on behalf of the Director of Prosecutions has in my

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view, very properly conceded that that was so.

It was submitted that an appropriate alternative punishment would be a period of probation. In some ways that of course, is attractive, however, in my view the limited resources of

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the Corrective Services Commission to supervise probationers
should not be further strained by placing a person on
probation when there is no apparent utility to be served by
such a course.
25052006 D.1 T3/AS M/T CNS1/2006 (White DCJ) 3 JUDGMENT 60

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The appellant has already served seven days in prison before being released on bail pending this appeal. I have no doubt the experience of Court proceedings and even that short period

in gaol will have a most salutary effect upon him,

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particularly in light of the fact in my view, he desisted from
offending of his own volition and his otherwise good
character, no useful purpose would be served by placing him on

probation.

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I should also say that whilst there are some features which would suggest that a conviction should not be recorded, in my view given that there were two incidents, the proper course to take is to record convictions.

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I order that the appeal be upheld and order that the sentences
imposed in the Magistrates Court of Mareeba on 30th of March
2006 be set aside. I order that in respect of each offence
the appellant be fined the sum of $200, that is a total of

$600. I order that if such sum is not paid within two months

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hereof, the appellant be imprisoned for a period of 21 days.

I order that convictions be recorded.

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4 JUDGMENT 60