R v Da Vinci - [2000] QCA 356

[2000] QCA 356

COURT OF APPEAL

PINCUS JA
McPHERSON JA
ATKINSON J

CA No 161 of 2000

THE QUEEN

LAVERNE DA VINCI Applicant

BRISBANE

..DATE 01/09/2000

JUDGMENT

PINCUS JA: Justice Atkinson will deliver the first judgment.

ATKINSON J: The applicant was convicted on his own plea of guilty on two counts of indecent acts on 17 April 1999, one count of doing an indecent act on 30 April 1999 and a summary count of indecent behaviour on 27 November 1999.

His behaviour on each occasion bore a remarkable similarity to the others. The circumstances of the first count were that the applicant was in the female public toilets at the Myer Centre, Brisbane. A young woman entered one of the cubicles to use it. She noticed a small mirror placed underneath the wall of the cubicle from the next cubicle. When she hurriedly left the cubicle she saw the applicant inside the adjacent cubicle with the door slightly ajar looking at her. She was upset by what she saw and fled.

As she was leaving another young woman entered the same public toilets and went to the last cubicle. She heard an unusual noise from the cubicle next to her and looked up above the partition dividing the two to see a hand holding a small mirror which was pointed towards her. In the mirror she could see the reflection of the applicant. She screamed and heard him run out of the cubicle and out of the toilet block.

The third count relates to an occasion on 30 April when another young woman went to the same public toilets at about 10.40 a.m. She saw somebody with a mirror underneath the partition between the cubicle she was in and the next cubicle seemingly looking at her. The mirror was quickly withdrawn and when the complainant crouched down and looked underneath the partition she noticed men's shoes. She left the cubicle and went a little way down the corridor where she waited for a period of time. Ultimately the applicant came out of the toilet and was confronted by the complainant who called him "a dirty pervert", grabbed his right shoulder and screamed out for somebody to get a security guard.

The applicant fled the scene. The applicant was apprehended after the complainant identified him by photo-board. He declined to be interviewed by the police and was issued with a notice to attend.

The final count concerns the applicant's behaviour at the female toilets at the Carlton Crest Hotel in Brisbane. At around 10 p.m. on 27 November later in the same year, a number of women observed that there was a person in the toilets using a mirror to look in between the cubicles at women who were using the toilets. The applicant was apprehended by the police after he returned to the area of the toilets.

The first three offences were committed when the applicant was on probation for a similar offence which he committed on 6 June…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Da Vinci

Details

AGLC: R v Da Vinci [2000] QCA 356
Case: [2000] QCA 356
Decision Date: 01/09/2000

CaseChat Overview and Summary

The case of R v Da Vinci involved the applicant, Laverne Da Vinci, who was convicted on four counts of indecent acts committed in female public toilets in Brisbane. The offences were committed over a period from 1998 to 1999 and involved Da Vinci using mirrors to observe women in adjacent cubicles. The Court of Appeal heard an appeal against the sentence imposed by the sentencing Judge, who had sentenced Da Vinci to a total of one month's imprisonment and three years' probation with special conditions. The applicant argued that the sentencing Judge had erred in not giving sufficient weight to the psychological and social evidence about the effects of an actual term of imprisonment, and that the sentence of imprisonment was manifestly excessive in the circumstances.

The Court of Appeal examined the sentencing Judge's consideration of the applicant's traumatic experiences in Guatemala, which were relevant in explaining his offending behaviour. The Court found that the sentencing Judge had taken full account of these experiences and had properly considered the need for personal and general deterrence, as well as the applicant's successful re-establishment in Australia, his positive contribution to the community, and his steps to seek treatment after his arrest. The Court also noted the risk of escalation in the applicant's offending behaviour and the need to protect the public from further offences. The Court concluded that the sentencing Judge had exercised his discretion properly and that the sentence imposed was not manifestly excessive.

However, Justice Pincus dissented from the majority decision, expressing concern about the risk of suicide and the potential harm of interrupting the applicant's ongoing treatment. Justice Pincus allowed the application and set aside the sentences of imprisonment, while Justices Atkinson and McPherson agreed with the majority decision. The Court ordered a warrant to be issued for the arrest of the applicant, with the warrant to lie in the registry for seven days.

Orders