R v Halvorsen

[1994] QCA 565

RONALD FREDERICK HALVORSEN	Applicant
BRISBANE ..DATE 17/11/94

COURT OF APPEAL

[1994] QCA 565

FITZGERALD P McPHERSON JA DOWSETT J

CA No 413 of 1994
THE QUEEN
v.

JUDGMENT Court at Kingaroy to one count of exposing a child under 12 to indecent printed matter, and one count of exposing a child under 12 to an indecent act. He was sentenced to imprisonment for two years subject to a recommendation for parole after serving nine months of the sentence. This is his application for leave to appeal against sentence.

The circumstances of the offences are these. The applicant was employed as weekend caretaker at a council roadworks construction camp outside Cunnamulla. The complainant was then a 10 year old boy who lived in a caravan at the camp with his mother and also his father who had a fencing job in the district. On Saturday 12 September 1993, the complainant was sitting near where the applicant was standing or working when the applicant asked the boy to go into the applicant's caravan to fetch some tablets for him.

The applicant followed the complainant into the caravan. Inside there, he showed the complainant some magazines of a Penthouse variety, drawing the complainant's attention to the anatomical details of women pictured in the magazine, and commenting upon them. Then the applicant said, "Look at my big cock." The complainant looked around and saw that the applicant had his penis out of his shorts and had been or evidently was masturbating.

Some six months or so later, the police spoke to the applicant about the incident. At first he denied doing anything wrong,

JUDGMENT
but later admitted it and pleaded guilty at an early stage,
having previously indicated that he would do so.

The applicant said he was not the owner of the magazines, which he found lying around at the campsite or in the caravan, having been left there by others. The Judge rejected the applicant's claim that the act of masturbation was something spontaneously precipitated by looking at the magazines. His Honour considered that it was part of the applicant's "dealing" with the boy.

It is apparent that there was no touching in the course of the episode, but apart from that there is a basis for his Honour's conclusion on the matter just mentioned when one looks at the

circumstances in which, it might be thought, the complainant
was lured into the caravan. His Honour was, of course,
correct in saying that offences like this arouse revulsion in
ordinary members of the community.

Nevertheless, the sentence of two years, even when accompanied by the recommendation for parole after nine months, must be regarded as a heavy one for acts of this kind, which involved no touching and a comparatively brief exposure to magazines of this general character. For my part, I would regard the personal exposure of the kind that took place here as perhaps less serious than if the complainant had been a girl or a woman, to whom it might have had a more threatening or menacing dimension.

JUDGMENT Among adolescent males older than this complainant, what the applicant did here might ordinarily expect to provoke little more than derisive comment or laughter. That is, however, not to minimise the seriousness of this kind of conduct taking place in front of a young and, it would seem, respectable and well brought up child.

The complainant's parents were justified in being concerned about the applicant's actions toward their son. However, studies suggest that men who expose themselves are among the few sex offenders of whom it can ordinarily be predicted that, although they will probably offend in the same way again, they will probably not do anything more serious in the future.

The applicant's background and personal history tend to bear this out. He is a man of 48 years of age and is said to have had a good upbringing and a happy childhood. He has never married, although from what he says, his sexual experience of women has not been abnormal. He has, unfortunately, convictions on two previous occasions for wilful exposure, once in the Sandgate Magistrates Court in 1979 where he was convicted of six counts, and another in the Goondiwindi Magistrates Court in 1990. On each occasion, he was sentenced to undergo a period of probation.

In intellectual capacity, he may be below the community average. In 1977, he sustained a significant head injury in a beating he received in a nightclub. He suffers from epilepsy and is subject to grand mal seizures for which he is receiving

JUDGMENT treatment. The psychologist who examined him speculated that the applicant may have sustained mild closed head injury of a kind, possibly involving frontal lobe damage. This might help to account for his behaviour on this and other occasions since 1977.

The applicant is now a pensioner looking after his aged and frail parents in the country. It seems unlikely that he poses any real or continuing danger to society, or to children in particular. In the catalogues of sexual offences that come before this Court, the applicant's behaviour on this occasion is well down the list of misconduct. When regard is had to his personal circumstances, I would be disposed to consider the offence as not meriting punishment of the extent imposed in this case. In fact, the applicant has already been in prison undergoing his sentence for the past two months.

In all the circumstances, I would be inclined to grant the application for leave to appeal and allow the appeal. I would vary the sentence imposed in the Court below by suspending the balance of it from today for a period of two years commencing today. That is the order that I would be disposed to make in this case.

THE PRESIDENT: I agree.

DOWSETT J: I also agree.

JUDGMENT THE PRESIDENT: The order of the Court is application allowed, appeal granted, sentence below set aside to the extent that the remainder of the sentence of imprisonment is suspended from today for a period of two years commencing today.

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JUDGMENT