R v Butler

[2006] QCA 223

SUPREME COURT OF QUEENSLAND

CITATION:	R v Butler [2006] QCA 223
PARTIES:	R v BUTLER, Cheyne Adam (applicant)
FILE NO/S:	CA No 122 of 2006 DC No 3230 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	9 June 2006
DELIVERED AT:	Brisbane
HEARING DATE:	9 June 2006
JUDGES:	McMurdo P, Holmes JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence is refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSON – APPLICATIONS TO REDUCE SENTENCE – where applicant pleaded guilty to offences of indecent dealing, assault and trespassing on school grounds – where indecent dealing and assault offences occurred in public park – where offences did not involve actual touching of genitals – where trespass offences involved applicant being found inside cubicle in female toilets at primary school – where applicant submitted sentencing judge failed to take into account the fact that offences did not involve touching of genitals and no exposure by applicant – where applicant claimed that custodial sentence would not allow adequate opportunity for treatment – whether the sentence imposed was manifestly excessive
COUNSEL:	C A Cuthbert for the applicant R G Martin for the respondent
SOLICITORS:	Howden Saggers for the applicant Director of Public Prosecutions (Queensland) for the respondent

MACKENZIE J:  The applicant pleaded guilty to two offences on indictment, indecently dealing with an eight year old girl in early 2004 and unlawfully assaulting an eight year old girl in 2005.  There were also two summary offences of trespass relating to the applicant being on school grounds of the same school on the day of count 2 and the next day.

On count 1 he was convicted and sentenced to four months imprisonment suspended after two months and on count 2 convicted and admitted to probation for two years.  He was convicted but not further punished for the two offences of trespass. 

On the first occasion the child, her younger sister and her mother were picnicking in a suburban park.  With their mother's approval the two girls went to a toilet in the park.  The applicant was known to the mother through school connections and they had acknowledged each other earlier that afternoon in the park.  He was probably not known to the child.  He had his dogs with him in the park.

When the girls came out of the toilet he engaged them in conversation and allowed them to pat the dogs.  He then knelt down in front of the eight year old girl and asked her to lift up her skirt.  She initially refused.  He then attempted to pull it up himself and she reluctantly lifted her skirt.

The applicant then placed his hands on her hips, half on the skirt and half on her underwear.  He then moved his hands slightly down so that he was touching both her underwear and her bare skin.  He then asked the complainant to pull her underwear down.  When she refused, he attempted to pull them down himself with both his hands.  She broke free and both she and her sister ran off.  There was no allegation that he had actually touched her genitals. 

The girl did not say anything about the incident until a month later when she told her aunt when they were again picnicking in the park.  After a family discussion it was decided not to report it to the police.  In early 2005 the girl told a health safety officer taking a class at the school of her experience.  The principal was told but it was not reported to the police on that occasion either.

Count 2 occurred about a month after that in the school grounds.  The complainant, who was not the girl in count 1, was waiting near the toilets for a friend to come out.  The applicant came up behind her and tickled her around the waist.  The applicant then walked off.  The girl complained to her teacher and gave a detailed description of him.  It was reported to the principal but not the police.

The first summary offence relates to the trespass on the school grounds on this day.  The second summary offence of trespass occurred the next day.  The same teacher who had taken the complaint the previous day saw a man fitting the description of the offender passing her classroom.  She alerted the registrar and a search of the grounds was undertaken.  When the female toilet was searched it was seen that two cubicles were apparently occupied.  A request was made for the people in them to identify themselves.  One proved to be a student.  The other did not immediately answer but after the registrar banged on the door, the applicant said he was a cleaner, which the registrar, who was responsible for the cleaners, knew to be untrue.

The door of the toilet block was then bolted.  The applicant continued to claim to be a cleaner until the police arrived.  To them, he said he had taken a short cut through the school grounds as he often did.  As he passed the toilet block he dropped some business cards from his wallet.  When they blew into the toilets he went in to retrieve them.  He denied touching either of the girls. 

After this incident the parents of the girl in count 1 decided to pursue the complaint.  The applicant submitted that the learned sentencing Judge failed to take into account all of the exceptional circumstances.  They were said to be that there was no touching of the complainant's genitals nor exposure of the applicants.  The offending was at the lower end of the scale.  Further, there was a unique window of opportunity to treat the applicant in the community for his problems.  It was said that the applicant had entered the criminal justice system at an early stage of his condition of paedophilia and was likely to respond to cognitive therapy. 

It was submitted that the sentence imposed was unlikely to enable him to receive treatment in prison.  Further, mixing with paedophiles in prison was likely to have a deleterious effect.  It was finally submitted that the learned sentencing Judge had not taken these factors into account adequately.

It is true that there was no actual touching to either of the complainants' genitals.  However in respect of the first girl, but for the child's resistance to taking her pants down and to letting him do so, the applicant's actions would have resulted in her genitals being exposed to him.  It was not a case where the applicant desisted from any attempt to cause that to happen. 

There may be cases where it can be demonstrated that incarceration will not serve the interests of the community.  R v. T. ex parte Attorney General [2000] QCA 282 relied on by the applicant in support of that proposition is significantly different factually.

The offences were significantly worse than in the present case, but the offender had voluntarily terminated his conduct and reported it to a family member, a minister of religion, a psychologist and the police without any complaint having been made against him.  He made a full confession of all that he had done.  It was treated as a case where the offender had genuine remorse, had done everything he could to rehabilitate himself and incriminated himself.  In that way it was an exceptional case. 
By the time the Attorney-General's appeal was heard and dismissed, he had completed over three months of an intensive correction order and 53 hours of community service.  Importantly, the Court also said that having regard to the duration and seriousness of the offending, the sentence should have included a component of actual custody, even if short because of the special circumstances in his favour.  Importantly also, it was said that general deterrence is always a matter of importance, as is personal deterrence, in cases of this sort.  As I have said, that was a rather more serious case than the present.

The learned sentencing Judge gave careful consideration to the matters relevant to sentence.  He accepted that the offending was at the low end of the range, took into account the plea of guilty, the hand up committal and co-operation with the administration of justice.  He also noted that the applicant was only 20 at the time.  He observed, correctly, that the offending involved concerning aspects of behaviour in that he was found in situations involving young girls with sexual

connotations. 

The learned sentencing Judge no doubt had in mind a psychologist's report which said that the applicant possessed emerging cognitive distortions and rationalisations characteristic of a paraphilia, namely paedophilia.  However, these characteristics were not strongly held and were likely to respond to cognitive behaviour therapy.  The applicant also had the intellectual capacity and the motivation to benefit from treatment strategies.  Nevertheless, the sentencing Judge said, the concerns remained. 

It is plain from the record that the learned sentencing Judge was seized of the issue of whether the case was of a kind that allowed a non-custodial sentence to be imposed, especially a structured one to achieve rehabilitation, notwithstanding acceptance by defence counsel that a period of imprisonment is ordinarily to be served for indecently dealing with children unless there are exceptional or unusual circumstances.  He said that, notwithstanding the fact that the offending was at the lowest end of the range, he did not accept that what had been demonstrated amounted to exceptional circumstances.  He concluded that community protection, and personal and general deterrence were important on the facts of the case.

Given the disturbing aspects of the case that the applicant approached young girls in the circumstances described and was apparently not deterred by the risk of being detected, I am satisfied that a short term of imprisonment, followed by probation requiring him to take part in counselling and other programs at the direction of a community corrections officer, was clearly within a proper exercise of the sentencing discretion.  Accordingly, the application for leave to appeal against sentence is refused.

HOLMES JA:  I agree.

THE PRESIDENT:  I agree.  The application is refused.

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