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…

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 Halvorsen

Details

AGLC: R v Halvorsen [1994] QCA 565
Case: [1994] QCA 565
Decision Date: 17/11/1994

CaseChat Overview and Summary

Ronald Frederick Halvorsen applied to appeal against the sentence imposed by the trial court in relation to convictions for exposing a child under 12 to indecent printed matter and an indecent act. Halvorsen was employed as a weekend caretaker at a council roadworks construction camp when he exposed himself to a 10-year-old boy who had been asked to retrieve tablets from Halvorsen’s caravan. The boy was shown Penthouse-style magazines and Halvorsen exposed his genitals while masturbating. Halvorsen was sentenced to imprisonment for two years, with a recommendation for parole after nine months.

The legal issue before the court was whether the trial judge was correct to impose a two-year prison sentence, with a recommendation for parole after nine months, on Halvorsen for the offences committed. The court considered the nature of the offences, the lack of physical contact, and Halvorsen’s personal circumstances in determining whether the sentence was appropriate. The court noted that while the conduct was serious, it involved no touching and a brief exposure to magazines. The court also considered Halvorsen’s background, including his previous convictions for similar offences, his intellectual capacity, and his current role as a carer for his elderly parents.

The court found that the sentence was excessive, particularly given the lack of physical contact and the brief nature of the exposure. The court took into account Halvorsen’s personal circumstances, including his good upbringing, his intellectual capacity, and his role as a carer for his parents. The court also noted that Halvorsen was unlikely to pose a continuing danger to society or to children in particular. The court allowed the appeal and varied the sentence by suspending the balance of the sentence from that day for a period of two years commencing that day.

The order of the Court was that the application was allowed, the appeal was granted, and the sentence below was set aside to the extent that the remainder of the sentence of imprisonment was suspended from that day for a period of two years commencing that day.

Orders