R v Robertson

[1996] QCA 386

[1996] QCA 386

COURT OF APPEAL
MOYNIHAN J
MACKENZIE J

CULLINANE J

CA No 317 of 1996
THE QUEEN
v.

WAYNE NEVILLE KEITH ROBERTSON Applicant

BRISBANE
..DATE 02/10/96
021096 T14/SJ22 M/T COA240/96
CULLINANE J: The applicant is a 31-year-old man who was
convicted on 12 July 1996 on his plea of guilty of the offence
of performing an indecent act in a public place under the
provisions of section 227 of the Criminal Code.

The circumstances of the offence were that the other participant in the activity, a 16-year-old youth, went to a public toilet in Broadway on the Mall and entered a cubicle and while he was there he saw a hand with a couple of sheets of toilet paper and pen come under the partition and to his side of the cubicle. There was a note written on it inviting him to come with the applicant to toilets at the Wintergarden Centre across the road.

Both went to that centre and entered a cubicle in a toilet there where each performed an indecent act in the nature of performing oral sex on the other. A cleaner who entered the toilet area saw that there were two men in one of the cubicles.

The applicant ran away but was apprehended.

The applicant has a serious criminal history which includes a number of offences for wilful exposure, indecent assault and indecent dealing. He has been sentenced to terms of imprisonment in respect of these offences. In October 1991 he was sentenced to two years imprisonment for indecent dealing with a child under 12 years and also on other offences including wilful exposure, unlawful assault and another indecent dealing with a child under 16 years. At the same time he was sentenced to 12 months imprisonment cumulative on the sentences imposed in respect of the other matters for indecent assault on a male.

There have been recommendations that he receive treatment and
021096 T14/SJ22 M/T COA240/96
counselling. Notwithstanding all of these matters the applicant
continues to commit offences of this nature. Some emphasis was
placed upon the fact that there was no public display of this
activity. However, the offence was committed in a public toilet
to which members of the public who have access thereto could be
expected to be offended by such conduct.

In my view it was inevitable that a term of imprisonment be imposed and I am not persuaded that a sentence of nine months was manifestly excessive. I would refuse the application.

MOYNIHAN J: I agree.

MACKENZIE J: I agree.

MOYNIHAN J: The order will be as indicated by Justice

Cullinane.

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