R v Greig

[1995] QCA 464

COURT OF APPEAL

[1995] QCA 464

DAVIES JA
MOYNIHAN J

FRYBERG J

CA No 234 of 1995
THE QUEEN
v.

ROBERT JOHN GREIG Applicant

BRISBANE
..DATE 23/08/95
230895 T13/JB M/T COA95/256
DAVIES JA: This is an application for leave to appeal against
a sentence imposed in the District Court at Brisbane
effectively of two years imprisonment. The sentence was
imposed on 26 May this year on the day that the applicant
pleaded guilty to the offences which were six of indecent
treatment of a child under the age of 16 and one of indecent
assault with a circumstance of aggravation, those offences
having occurred on 16 January this year.

It was on the first six of those offences that he was sentenced to 12 months imprisonment and two years effective term in respect of the seventh of those offences. The applicant is 37 years of age, having been born on 5 May 1958.

He has no prior criminal history.

The circumstances of these offences indicate, in my view, that they were serious offences of this kind. The complainant was a 14 year old schoolboy. He was in Loganlea Environmental Park for the purposes of a school project. He was apparently looking for a goanna. The offences really fell into two periods of time separated by a short gap.

The environmental park, we were told, is known to homosexuals
as a place to which other homosexuals resort to make contact
with one another. It is also, as this case demonstrates, a
place to which school children, such as this complainant,
would resort for purposes such as the complainant did in this
case. That factor as well as the circumstances of the
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offences makes this case, in my view, a serious one of this
kind.

The applicant approached the complainant and asked him what he was looking for. The complainant said he was looking for a goanna and the applicant stated words to the effect, "How is your lizard?" He then touched the complainant's penis inside his pants. The complainant said, "Would you please stop that?

I don't like it", but the applicant, nevertheless, continued. I should say at this point that the complainant was described

as a simple boy. I am not sure precisely what that means, but
it does appear that he was a passive child in the sense that
although he plainly objected to the conduct I have just
described and to the conduct I am about to describe, he did
not resist it vigorously. The facts that I have just
described were the subject of the conviction on the first
count.

The applicant then pulled the boy's pants down and began to suck his penis. Again, the complainant did not do anything about this, but he said he was too frightened to say or do anything and there was no dispute about that.

Count 3 consisted of the applicant forcibly placing the
complainant's hand on the applicant's person. The applicant
was then disturbed by the approach of a bushwalker and he
disappeared into the bush. Michael then went to the toilet to
wash his hands, Michael being the complainant. He then
230895 T13/JB M/T COA95/256
continued to look further for a lizard. A little later, the
applicant came upon him again and he asked the applicant to
leave him alone, to which the applicant replied, "I know
you're enjoying what I'm doing." The complainant denied that.

Again, the applicant groped at the complainant's penis, this time outside his clothing. This was the subject of count 4. Count 5 consisted of the applicant putting his hand inside the complainant's shorts and inserting his finger into the complainant's anus. The complainant repeatedly said, "I don't like what you are doing. Can you please stop it?" Count 6 consisted of the complainant's hand being placed forcibly on the applicant's penis and moving it up and down on his penis for about a minute. The complainant tried to pull his hand away, but the applicant held it there, and count 6 consisted of the applicant performing fellatio on the complainant.

The applicant told the complainant that he had put his penis in the anus of other boys and had taken them to his house. He asked the complainant if he wanted to go back to his house and the complainant said, "No." The applicant asked the complainant how old he was and the complainant told him he was fourteen. The applicant, apparently, only stopped his conduct when some other people emerged.

The complainant went again to the toilet and then after that
began walking to the train station. The applicant again
approached him in his car and offered him a lift. At first,
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the complainant said no, but finally accepted because he said
he wanted to remember everything about the applicant and to
get to a telephone faster. The applicant drove him to the
train station. The complainant wrote down the registration
number and telephoned the police. The police arrived and
located the applicant in the area of the environmental park.
The applicant then admitted to the police what he had done.
He said he stopped when the complainant told him he was
fourteen. He said it did not sink in straight away, though.
He went with the police to the police station where an
electronically recorded interview was conducted. He told the
police then that he first thought the complainant was 17 or
18. He told the police that it was a known gay area and that
he also had had a sexual encounter with another man in that
area. That fact, together with the evidence of the
complainant, which was undisputed, that the applicant had told
the complainant that he had put his penis in the anus of other
teenage boys and taken them to his house, indicates to me that
it is unlikely that what occurred on this occasion was an
unusual piece of aberrant behaviour on behalf of the
applicant. It is more likely, as the learned sentencing Judge
seemed to think, that the applicant was a person who had, in
the past, and would be likely in the future, unless deterred,

to engage in behaviour of this kind.

The events which I have described indicate that this was a
quite protracted and plainly uninvited interference of a young
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and apparently vulnerable child and indeed a forced contact
with him which has not surprisingly, at least on a temporary
basis, affected the child considerably. There was evidence
before the learned sentencing Judge that the complainant was
caused a lot of stress by this, that he had felt like killing
himself. He had been unable to sleep well and often woke up
in the middle of the night. He was unable to go to national
parks. He was unable to stay close to his male friends. He
felt scared that this sort of thing was going to happen to him
again. He felt both angry and guilty about what had occurred.

It may well be, of course, that with counselling, which he

indicated he had just started, these concerns will be overcome
with time, but plainly, the conduct of this man has at least
had a serious temporary and perhaps, possibly, long-term
effect upon this young complainant.

Mr Hutton, who appeared for the applicant before us, did not contend that the sentence which was imposed in this case was outside the range of a sound sentencing discretion, nor could he, in my view, in the light of the cases referred to, the main ones being Pugsley (CA No 37 of 1986), Smith (CA No 47 of 1993) and Goulding (CA No 154 of 1994).

It is unnecessary to go to the facts in those cases. They are
all different from this in various ways, but they do indicate
that the sentence which was imposed here, even having regard
to the factors in the applicant's favour which were his
contrition, his cooperation with the police and the fact that
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there was apparently a woman who was, to some extent anyway,
dependent on him, was not outside the range of a sound
sentencing discretion.

Mr Hutton submitted that, though the effective sentence of two years was not outside the range, because of the matters I have mentioned, the learned sentencing Judge ought to have made a

recommendation for early parole. In view of the seriousness
of this offence, in my view, the learned sentencing Judge
adequately took those matters into account in the head
sentence which he imposed. I would therefore refuse the

application.

MOYNIHAN J: So would I.

FRYBERG J: I agree.

DAVIES JA: The application is refused.

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