R v Friend

[1998] QCA 79

COURT OF APPEAL

[1998] QCA 079

FITZGERALD P McPHERSON JA SHEPHERDSON J

CA No 12 of 1998

THE QUEEN

v.

ROY FRIEND	Applicant
BRISBANE
..DATE 18/03/98 180398 T4/ST18 M/T COA52/98

THE PRESIDENT: The applicant, Roy Friend, seeks leave to appeal

against a sentence of 12 months in prison imposed on him by the District Court of Townsville on 11 December 1997 in respect of a

conviction of one charge of indecent dealing with a child under

the age of 16 years.

...

THE PRESIDENT: He has been imprisoned since that date. The

offence took place somewhere between 31 March and July 1997 when the applicant, then aged 43 years; a second man, Mitchell, and

the 13-year-old male complainant were together in a public place

on Townsville Common, a tower used apparently for bird watching.

At the sentence hearing it was apparently accepted that the

second man, Mitchell, had sexually assaulted the boy against the applicant's protestations, but then in a moment of weakness the applicant bowed to Mitchell's encouragement that he too should "go on" and "have some fun", as it was put, and he then stroked the boy's penis two or three times before withdrawing from the

incident and - it was again apparently accepted - again seeking

to persuade Mitchell to stop and let the boy go.

Whether or not the applicant's pleas to Mitchell had any effect,

the boy in fact was permitted to depart when other members of the

public entered the park.

The applicant's offence came to light on 20 July 1997 when police

were questioning him about a separate child pornography offence
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between 17 June and 7 July. The applicant volunteered

information relating to the present offence as part of wider

information regarding the activities of Mitchell which led to 22

charges against Mitchell of sexual offences against four adolescent boys including unlawful anal intercourse and aggravated assault of a sexual nature.

Police had no previous knowledge of Mitchell's activities or of

any of the offences or, indeed, of the present offence in which

the applicant implicated himself.

On 14 August 1997 the applicant pleaded guilty to the child

pornography offence in the Townsville Magistrates Court and was

sentenced to six months imprisonment suspended for an operational

period of three years.

He then pleaded guilty to the present offence on an ex officio

indictment and it's now submitted on behalf of the applicant that

an appropriate sentence would have been one of imprisonment for three to six months, and not the term of imprisonment of 12

months imposed by the District Court.

Considerations referred to by the sentencing Judge included the

applicant's criminal record and his propensity to commit offences of this nature which he weighed against the applicant's apparently genuine desires and attempts to prevent himself from re-offending. The applicant was convicted in 1991 of 16 charges of indecent assault and five charges of indecent dealing with a boy under the age of 17 years, over a two year period.

180398 T4/ST18 M/T COA52/98

He was then sentenced for imprisonment for two years and served a

period of eight months before being granted parole. The

psychological opinion tended on the applicant's behalf at

sentencing for the present offence, confirmed that he is paedophiliac and is a risk to young boys. However, the opinion

supported his claim that while in prison and since his release in 1992, he has made genuine attempts to adjust his behaviour, at times with some degree of success.

Nonetheless, the opinion also confirmed that the type of problem

suffered by the applicant is usually chronic and is at risk of resurfacing at times of psycho-social stress. In addition to the matters relied upon by the sentencing Judge, the prosecution drew attention to the circumstances that the applicant was acting in company with another paedophile. The child was clearly opposed to what took place and that the applicant continues to be a real

danger to young boys.

Nonetheless, it seems to me that the Judge must have placed too

much weight on the fact that this was a repeated offence by a paedophile offender and gave insufficient regard to the specifics

of the offence which, in the circumstances, are comparatively, and I emphasise comparatively, minor. His Honour also said that he had not taken into account the applicant's conviction in the

Magistrate's Court at Townsville on 14 August that year for

possession of child pornography as a prior conviction but that it

did indicate a continuing problem behaviour pattern by the

applicant after the present offence.

It seems to me that the sentencing Judge should have had regard
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to that Magistrates Court sentence in the applicant's favour, to

recognise the total punishment which had been imposed upon the applicant in respect of these offences over the same comparatively brief period, and the pressure on the applicant which the operational period of the suspended sentence would bring to bear to prevent him from reoffending, at least hopefully

for a period of up to three years.

In the circumstances, in my opinion, the Judge's discretion

miscarried. The sentence was manifestly excessive. The appeal should be allowed, the sentence imposed below set aside and a sentence of imprisonment for three months substituted.

McPHERSON JA: I agree. In agreeing as I do to the order as

proposed two matters influence me, among others. First, that the

psychiatric report shows that the applicant is a person easily

dominated, and it appears that he was so dominated in this

instance. And secondly, that it was information from the

applicant himself that enabled police to identify Mitchell as a major offender, of whom the police previously had known nothing.

This state of affairs is confirmed by an affidavit from an

inspector of police that was received in evidence on behalf of

the applicant at the sentence hearing. In all the circumstances

I agree with the reasons and the order proposed by the President.

THE PRESIDENT: I agree with the additional considerations

referred to by Mr Justice McPherson also.

SHEPHERDSON J: I agree with the order proposed and with the

reasons of the President and Mr Justice McPherson.
180398 T4/ST18 M/T COA52/98

THE PRESIDENT: The order of the Court is application granted,

appeal allowed, sentence imposed below set aside and in lieu a

sentence of imprisonment for three months substituted.

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