R v McCandles

[2006] QCA 199

SUPREME COURT OF QUEENSLAND

CITATION:

R v McCandles [2006] QCA 199

PARTIES:

R
v
McCANDLES, Matthew John
(applicant/appellant)

FILE NO/S:

CA No 134 of 2006
DC No 2190 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

8 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

8 June 2006

JUDGES:

Jerrard JA, Holmes JA and Mackenzie J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made

ORDER:

1. Application for leave to appeal against sentence granted
2. Appeal allowed
3. Substitute sentence of 2 months imprisonment followed by 18 months probation

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where applicant sentenced to 6 months imprisonment followed by 18 months probation for doing an indecent act in public – where he masturbated in his car at a secondary school and was seen by a number of students – where no significant criminal history – whether sentence was manifestly excessive

Criminal Code1899 (Qld), s 227(1)
Penalties and Sentences Act1992 (Qld), s 9(2)(a)

R v Da Vinci [2000] QCA 356; CA No 161 of 2000, 1 September 2000

COUNSEL:

J A Griffin QC with P F Mylne for the applicant
B G Campbell for the respondent

SOLICITORS:

Grasso Searles Romano for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA:  The applicant for leave to appeal against sentence was convicted after a trial of one count of wilfully and unlawfully doing an indecent act in a place to which the public was permitted to have access.  He was sentenced to six months imprisonment followed by 18 months probation.

The facts on which the applicant was sentenced were that just before 3 p.m. on a school day in July 2004 he was seen in the car park of a secondary school naked except for a shirt and masturbating.  A number of students, some as young as 13 or 14 years, saw him doing so.  Indeed, the learned sentencing judge observed that he seemed to have manoeuvred himself to ensure that he would be seen by them.  According to the submissions of counsel for the defence, he was between 60 and 100 metres away from the students.  (That does not appear from the Appeal Record, but it was not challenged as correct by counsel for the Crown.)  It is not clear over what period the incident took place.  The learned sentencing judge referred to it as continuing for "some little while".  After the students had moved away the applicant got into his car and drove off, but his number plate was recorded and he was eventually identified.

The applicant is 28 years old.  He had, at the time of the offending, no criminal…