Morgan v Freidman

[2007] QDC 290

[2007] QDC 290

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE RAFTER SC

Appeal No 1548 of 2007

ANTHONY BERNARD MORGAN	Respondent (Plaintiff)
and
MICHAEL ANTHONY FREIDMAN	Appellant (Defendant)
BRISBANE ..DATE 11/07/2007
ORDER

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HIS HONOUR:	1
Brisbane the appellant pleaded guilty to a charge that on 23
INTRODUCTION: On 8 May 2007 in the Magistrates Court of communication, namely an internet messaging application, with

10

intent to expose a person he believed was under 16 years of
age to indecent matter contrary to section 218A(1)(b) Criminal

Code.

On 9 May 2007 he was sentenced to 12 months' imprisonment. In

20

written reasons delivered at the time of sentence the learned

Magistrate said at page 11:

"I accept that the defendant would be at risk in a
correctional facility. For these reasons the
defendant is sentenced to a term of imprisonment of 12

months. The Court-fixed parole eligibility date is 9	30
May 2007."

The learned Magistrate stipulated that the appellant was required to attend the Capalaba office of the Parole Board within 48 hours. The learned Magistrate explained that

40

failure to report would mean that the appellant was unlawfully
at large and could be arrested without warrant. (See page 3

of the Magistrate's reasons)

The appellant's solicitor told the Magistrate that the order

50

has caused confusion at the Bar table because it would be
necessary for the appellant to apply for parole. As the
offence is one of a sexual nature, the Court cannot fix a
parole release date. (See section 160B Penalties and
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Sentences Act). The offence is one of a sexual nature. (See	1
R v. McGrath [2005] QCA 463. The Court can, as the Magistrate did, fix a parole eligibility date. (See section 160B Penalties and Sentences Act) However the appellant's release on parole is determined by the Parole Board.

10

Ms Cupina for the respondent accepts that when the sentence was pronounced, the Magistrate initially misapprehended the effect of the order. The direction to report within 48 hours

is a sufficient indication of that. The appellant has

20

remained in custody. Curiously he has not applied for parole,
and Ms Gilbert who appeared for him, was not able to explain

his reason for that.

The parties have not been able to place any information before

30

me as to precisely when the appellant can expect to be
released if he actually applies for parole. Ms Cupina for the
respondent told me that in the circumstances, any application
for parole would be considered quickly, but of course that

does not necessarily mean that the application would be

40

granted. Ms Gilbert for the appellant said that it could be
up to 120 days from the date of application to the date of

grant of parole.

An application was made to the Magistrate to reopen the

50

sentence pursuant to section 188 of the Penalties and
Sentences Act, but that application was refused.
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ANTECEDENTS:	1
The appellant was born on 29 May 1980. He was therefore 26 years of age at the time of the offence. He is 27 years of age now. He has one prior conviction. On 24 August 1999 in
the Holland Park Magistrates Court he was convicted of

10

possession of dangerous drugs. He was fined $400. No
conviction was recorded.

There was a report tendered from Dr Michael Beech, psychiatrist, dated 26 April 2007. In that report Dr Beech

20

said that the appellant had resided in Birkdale for the past
seven years with his adoptive parents. Dr Beech said that the
appellant was engaged to his fiancé with whom he had been in a
relationship for two years. Apparently he had been working as

a nursing assistant.

30

The appellant told Dr Beech that he had previously been diagnosed with schizophrenia and had been treated at the Redlands Hospital four or five years earlier. At the time he had a personal problem and had been using cannabis to relax

40

his mind. He was treated over a six month period with
antipsychotic medication which he had intermittently
continued. He had ceased illicit substance use five years
earlier. He said at the time of the present offence that he

had been taking antipsychotic medication, namely, Risperidone,

50

at a rate of two milligrams daily. This was under the
supervision of his general practitioner.
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The appellant told Dr Beech that he had been intoxicated on	1
the day of the offence. When asked about the specific allegations, the appellant said that he agreed with the police statement, but did not wish to give an account. He said that it was distressing to talk about the matter and he did not

10

wish to go into details and he simply agreed with the charge. the computer to his girlfriend and to his fiancée. At the time of the offence he said that he did not mean to do it.

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Dr Beech says at page 3 of the report:

"Despite my urging, Mr Freidman was not able to give a
consistent account of the incident and the more I

pressed the more distressed and resistant he became."

30

As previously mentioned, the appellant gave Dr Beech a psychiatric history that involved him being diagnosed with schizophrenia four or five years earlier. Apparently his mental state deteriorated and he was unable to work. He told Dr Beech that he felt that people were coming into his house

40

and harming his family. He became very anxious throughout
that period of time. The initial onset of his psychosis was

associated with cannabis use.

The appellant told Dr Beech that he commenced using the drug

50

cannabis at the age of 16 and it had aggravated his mental
condition. As I mentioned before, he apparently ceased using
cannabis four years earlier and had not used other illicit
substances. He did tell Dr Beech that at the age of 17 he
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commenced drinking alcohol and that in the past that had	1
caused difficulties. He now drinks a bottle of whiskey over a two week period.
Dr Beech says in his report at page 5 that it is clear from

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the transcript of the appellant's interview with the police
that he understood the nature of the internet chat. The
appellant admitted to drinking a fair amount of alcohol and
said that he was probably intoxicated at the time. Dr Beech

noted that the appellant's account to the police was

20

inconsistent and indeed seemed at times to be evasive. Dr appellant:

"Michael Freidman is a 26 year old single male with a

history of psychosis which first appeared five years	30
ago. It occurs in the background of significant
history of schizophrenia and a prejudicial childhood
of significant learning problems and disruptive behaviour. It is likely that the psychosis was initially triggered by cannabis use, but developed
into a disorganised form of schizophrenia. Although
he has responded to treatment in the past, the
available material and facts seems to suggest that he has been poorly monitored and his medication has been most likely ad hoc. It is further likely that his	40
difficulties are aggravated by intermittent alcohol use."

Dr Beech expressed the view that there are indications that
the appellant suffers from the mental illness, chronic

undifferentiated disorganised schizophrenia, which has been 50

present on and off since 2001. He says it is difficult from
the history to discern whether this is an adjustment disorder
or the advent of a major depressive episode. He goes on to
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say there are no indications of personality disorder. He said	1
that during the interview the appellant appeared to be markedly disordered in his thinking style with emotional lability and a dramatic presentation. He said that his presentation is in fact consistent with undifferentiated

10

schizophrenia rather than a personality disorder.

He says that in the past the appellant's condition has been aggravated by illicit substances. More recently he says the condition has been aggravated at times by alcohol use.

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Dr Beech said it is his opinion that alcohol would disinhibit his already disorganised thinking and make the appellant more prone to act in an impulsive, fatuous, or disturbed manner.

Dr Beech says that the appellant would benefit from

30

antipsychotic medication for his chronic schizophrenia. He
says that although the appellant currently uses Risperidone,
the details of the prescription of this medication, its
supervision and its overall success were difficult to elicit

from him. He says that he gathered that the appellant was

40

using medication that had been prescribed some time ago which
had not been regularly monitored.

Dr Beech expresses the view that he believes the appellant would benefit from specialist psychiatric review, formal

50

supervision of his medication and appropriate adjustment. It
is likely, he says, that with this oversight, his condition
will improve significantly. He expresses the view that it is
unlikely that the appellant will reoffend.
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In relation to the sentencing options that are available, Dr	1
Beech expresses the view that he believes the appellant is capable of undertaking a community based order, and that if that were to be done in association with some enforcement of psychiatric treatment, he believes that the appellant would

10

not only be able to undertake the order, but would benefit by

the enforced psychiatric treatment.

FACTS:

"Operation A-Trax" had been commenced by police and the Crime

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and Misconduct Commission on 4 April 2006. It involved
investigations to proactively identify potential child sex
offenders who use the internet to meet and groom children for

the purpose of sexual abuse.

30

From 2.13 p.m. until 3.06 p.m. on 23 August 2006 the appellant as, "Universal Mike", engaged in internet chat room discourse with, "Tina Pretty Ballerina", an identity created by a covert police operative ("CPO").

40

Conversation elicited that "Tina Pretty Ballerina" was a 13 year old female. Photos were then exchanged. The CPO asked the appellant if he was drinking. The appellant responded, "Yes. Why? Do you want to drink with me?" He went on to say, "I mean when you are 16, I think that age is okay to

50

drink." The appellant then asked the CPO, "So you want to see
my sexy pics", explaining, "I took some new photos. I have a
digicam. They're kind of naked. Is that cool?" The CPO
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responded that she was, "A bit nervous", and the appellant	1
replied, "Maybe I can show you on webcam."
At 2.44 p.m. the appellant appeared on webcam and he asked the CPO, "So, what do you think?" He then asked, "So do you have

10

a boyfriend", and then, "Do you want to see my cock? Have you
seen a cock before? If you want to see, I don't mind showing
you." The CPO responded that her, "Mum" would "freak", and
that she was scared. The appellant replied, "What are you

afraid of?" The CPO asked him why he wanted to show her and

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the appellant responded, "I just thought you might like to."

At 2.53 p.m. the appellant exposed his erect penis to the CPO. asked, "Have you ever tried sucking a dick before?" The CPO

30

replied, "No way." The appellant then asked, "So what do you
think you would like to do to it if you had a chance?"

The appellant asked for the CPO's mobile phone number so he could send a text message. A number was given. The appellant

40

then asked if he could call her to, "Hear her voice". The CPO
said, "No." The appellant later purported to provide his
mobile phone number, but in fact the number was a friend's.

The chat then ended.

50

On 26 September 2006 a search warrant was executed at the appellant's mother's home which is where he resided. The computer tower and web camera were seized. The appellant was

not home at the time.
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On 27 September 2006 the appellant participated in a formal	1
interview with police. He was described as being evasive during the interview. The appellant initially stated that he could not recall the session. He said he had exposed himself online in the past, though not to unknown persons. The

10

appellant subsequently said he did recall the chat and
identified himself in the images.

During the interview the appellant said he thought the CPO was an adult. He did not explain why he provided his friend's

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mobile phone number to the CPO.

AUTHORITIES:
In R v. Burdon, ex parte Attorney-General (2005) 153 A Crim R

104, [2005] QCA 147, McMurdo P said:

30

"... people who are considering using the internet
like Burdon to attempt to make contact with young
people with a view to corrupting or sexually
exploiting them must now be on notice that such
behaviour will be likely to result in a salutory
penalty generally involving a term of actual
imprisonment, even where indecent physical contact

does not and could not eventuate." 40

In R v. Hays [2006] QCA 20 de Jersey CJ said in relation to those remarks:

"[20] In that passage McMurdo P was presumably 50

referring to making contact by way of face-to-face

meeting, those being the facts of Burdon.

[21] But I repeat what I said earlier, that I do not
consider as justified a stipulation that before actual
imprisonment can be ordered in a case like this, there
must have been an attempt to arrange a face-to-face

meeting. The discretion should not be so restricted

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or fettered. The proper analysis of all of the	1
circumstances of the case may nevertheless lead to a conclusion that considerations of denunciation and deterrence do warrant actual imprisonment."

In R v. Hays, Jerrard JA analysed a number of comparable

decisions and those cases have been the subject of submissions	10
before me today. Those cases are R v. Kennings [2004] QCA 162, R v. Campbell [2004] QCA 342, R v. Burdon ex parte Attorney-General (2005) 153 A Crim R 104 and R v. McGrath [2005] QCA 463.
20
The case most closely resembling this matter is the R v.
Campbell [2004] QCA 342. That case involved an applicant who
had communicated with a police officer whom the offender
believed to be a 13 year old girl. The communications
involved explicitly sexual matters and an attempt to arrange a	30
place at which to meet the believed child. During the course
of the communications the offender sent the covert police
operative two still photographs of himself playing with his
erect penis, and on a number of occasions he exhorted her to
masturbate herself.	40
The Court of Appeal dismissed his application for leave to
appeal against a sentence of 18 months' imprisonment suspended
after three months with an operational period of four years.
The applicant in that case was 22 years of age and he had no	50

prior convictions. That case involved five conversations with
the person the offender believed was a 13 year old girl. A
submission was made that the decision in R v. Kennings was a
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more serious case, however the Court in Campbell said that	1
that was, "More than amply balanced out by the fact that the applicant engaged in conversations of a more explicit sexual nature as well as sent explicit photographs."

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DECISION: imprisonment requiring a period of actual custody was warranted. Since the Magistrate initially misapprehended the effect of the sentence, it is necessary to set aside the

20

sentence and re-sentence the appellant.

The cases to which I was referred illustrate that a sentence
of 12 months imprisonment is within the applicable range.

However, the present case is not quite as serious as R v

30

Campbell [2004] QCA. The appellant has now served 63 days in custody. In my view that is an adequate period. He clearly requires supervision.

In the circumstances I would, pursuant to section 92(1)(b) of

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the Penalties and Sentences Act sentence the appellant to two
months' imprisonment commencing from the date he was sentenced
in the Magistrates Court on 9 May 2007 and order that he be
placed on probation for two years on the condition set out in

section 93 of the Penalties and Sentences Act, and a further

50

condition that he submit to medical psychiatric or
psychological treatment as required by the Corrective Services
officer.
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I can of course only make such an order if the appellant	1
consents. I was told by Ms Gilbert who represents the appellant that he fully understands the purpose and effect of a probation order, and furthermore that he understands the consequences of failing to comply with those requirements.

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Nevertheless I will explain those requirements to the appellant and ascertain whether or not he does in fact consent to being placed on probation for a period of two years on those conditions.

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Michael Anthony Freidman, you have heard me say that it is my intention to impose a sentence of two months' imprisonment as well as a period of two years' probation. The sentence of
imprisonment would commence from the date you were sentenced

in the Magistrates Court on the 9th of May 2007. You have

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already served 63 days in custody, so the effect of the
sentence is that you would be on probation from this date.

The period of probation that I have in mind is two years. I can only make a probation order if you are prepared to consent

40

to it being made.

PRISONER: Yes, Sir, I am. I - yes, I am. I am willing to consent.

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HIS HONOUR: Ms Gilbert has explained the requirements of a probation order to you. Is that correct?

PRISONER: Yes, she has.
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1

HIS HONOUR: Ms Gilbert has also explained to you that if you fail to comply with the terms of the probation, you can be re-sentenced. Is that right?

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PRISONER: Yes, Sir. Yes, Sir.

HIS HONOUR: Nevertheless I will ask you to listen very carefully to the general requirements of a probation order as well as the special condition that I have in mind, and then I

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will ask you whether you do in fact consent to being placed on
probation on those conditions. As I said before, the period

would be two years. Do you understand that?

PRISONER: Yes, I do understand that.

30

HIS HONOUR: These would be the requirements.

A. You must not commit another offence during the period of the order.

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B.	You must report to an authorised Corrective Services officer at Capalaba within 48 hours.
C.	You must report to and receive visits from an authorised Corrective Services officer as directed by the officer.

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D. You must take part in counselling and satisfactorily attend other programmes as directed by an authorised

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11072007 T(2)2-6/AMS(BNE) M/T BRIS24 (Rafter DCJ)

Corrective Services officer during the period of the	1
order.

PRISONER: Yes - yes, Sir. I am currently seeing a psychologist at the moment, Peter Nordive, which is Cleveland.

10

I've been seeing him since-----

HIS HONOUR:

E. You must notify an authorised Corrective Services officer of every change of your place of residence or employment

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within two business days after the change happens.

F. You must not leave or stay out of Queensland without permission of an authorised Corrective Services officer.

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G. You must comply with every reasonable direction of an authorised Corrective Services officer.

I will also make the probation subject to this further condition.

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H. That you submit to medical, psychiatric or psychological treatment as directed by the authorised Corrective Services officer during the period of the order.

50

I must explain to you that if you fail to comply with those requirements you can be brought back here to Court and re-sentenced for the offence. You have already been sentenced to 12 months' imprisonment by the Magistrates Court, and no 11072007 T(2)2-6/AMS(BNE) M/T BRIS24 (Rafter DCJ) 15 ORDER 60

doubt you listened to the submissions made by the prosecutor	1
and your own solicitor during proceedings before the sentence does extend to one to two years for an offence of this type.

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If you commit any further offence or otherwise fail to comply with the requirements of the probation order, you do face the prospect of being re-sentenced here again, and in that event

you can expect to be sent back to gaol. Do you understand

20

that?

PRISONER: Yes, I do understand. I won't let it happen again.

I swear to God I won't let this happen again.

30

HIS HONOUR: I must also explain to you that the probation order may be amended or revoked on an application by you or by an authorised Corrective Services officer or by the Director of Public Prosecutions. Do you understand that?

40

PRISONER: Yes.

HIS HONOUR: In those circumstances I will make the following orders.

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1. Allow the appeal.

2.    Set aside the sentence imposed by the Magistrates Court at Brisbane on the 9th of May 2007.

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3. In lieu thereof:  1

(a) A conviction is recorded.

(b) Sentence the appellant to imprisonment for two

months, and further that the appellant be released

under the supervision of an authorised Corrective

10

Services officer for a period of two years during which time he must comply with the requirement set out in section 93(1) of the Penalties and Sentences Act and report within 48 hours of release to an authorised Corrective Services officer, and the

20

further requirement that he submit to medical
psychiatric or psychological treatment as directed
by the authorised Corrective Services Officer during

the period of the order.

(c) The sentence is taken to have commenced on 9 May

30

2007.

...

HIS HONOUR: To make things absolutely clear, it is my

40

intention that the appellant be released immediately on

probation.

...

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-----

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