R v Robertson Summary

[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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CaseChat Overview and Summary

The appeal in the case of R v Robertson was heard by the Queensland Court of Appeal, with Justice Cullinane delivering the leading judgment, and Justices Moynihan and MacKenzie concurring. The applicant, Wayne Neville Keith Robertson, had pleaded guilty to performing an indecent act in a public place under the provisions of section 227 of the Criminal Code. The incident occurred in a public toilet at the Wintergarden Centre, where Robertson and a 16-year-old youth performed oral sex on each other in a cubicle. A cleaner witnessed the act and subsequently apprehended Robertson, who fled the scene.

The central legal issue before the Court was whether the sentence imposed on Robertson for his conviction was manifestly excessive. Robertson had a history of similar offences, including wilful exposure, indecent assault, and indecent dealing, and had previously been sentenced to imprisonment for these crimes. Despite recommendations for treatment and counselling, Robertson continued to commit offences of this nature, leading to the imposition of a nine-month prison sentence. The Court was tasked with determining whether this sentence was disproportionate to the offence committed.

In delivering the judgment, Justice Cullinane held that it was inevitable that a term of imprisonment would be imposed given the nature of the offence and Robertson's criminal history. The judge emphasised that while there was no public display of the indecent act, the offence was committed in a public toilet where members of the public could be expected to be offended by such conduct. Justice Cullinane concluded that the sentence of nine months was not manifestly excessive and, accordingly, refused the application to appeal against the sentence. Justices Moynihan and MacKenzie concurred with this decision.

R v Robertson

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established