R v Strohfeld

[1992] QCA 298

COURT OF APPEAL  [1992] QCA 298

PINCUS JA
McPHERSON JA
THOMAS J

CA No 156 of 1992

THE QUEEN

v.

STEVEN JOHN STROHFELD  Applicant

BRISBANE

..DATE 14/08/92

JUDGMENT

140892
McPHERSON JA:    The applicant in this case was found guilty and convicted at his trial in the District Court of a single offence of permitting indecent dealing, with circumstances of aggravation, in respect of a complainant girl under the age of 12, who was a child in his care.

The complainant Renee was born on 25 February 1983 and was six years old at the time of the offence.  She lived with her family at Eagleby.  The applicant was a neighbour.  He had a step-daughter named Katrina and she and Renee were in the same class at school and were friendly.

At the time of the offence, which took place on a date unknown between July and October 1989, the applicant had arranged to take Katrina to a caravan park at Ormeau for a weekend. Katrina invited Renee, and the applicant went to Renee’s father to ask his permission.  Renee’s father agreed, but expressed his concern for the well-being of Renee.  According to the evidence he gave in the case, he asked to be assured by the applicant that Renee would be well cared for and that the applicant would ensure her safety and that she would be with the applicant’s daughter.  That assurance was given and the father of the complainant gave his permission for her to go.

One afternoon or evening when the two children were in the main bedroom of the caravan with the applicant and an older unidentified female, the applicant pulled down his shorts and underpants and asked Katrina to "wank his dick".  Katrina masturbated the applicant as he sat on the bed.  She then took hold of Renee’s hand and placed it on the applicant’s penis.  Renee copied Katrina and masturbated the applicant for about 5 minutes.  The applicant ejaculated in her presence.  He told the little girls not to say anything and they went and washed their hands.  The next night - and I quote from the evidence of Renee in the record - "We had something to eat and at that time, where the sink was, I was sitting there and I was crying."  The reason for her crying was not fully explored.

The applicant was sentenced to 8 months imprisonment.  The application for leave to appeal is based on the ground that the sentence is manifestly excessive, either in itself or by reference to other reported cases of sentences in the case of similar offences.  His Honour said he treated the offence as an isolated incident.  He mentioned that he was not in a position to grant a discount for remorse on the part of the applicant, as a plea of guilty had not been entered.

His Honour observed upon the fact that the offence was a prevalent one.  There were aggravating features, including in particular the fact that the child had been entrusted to the care of the applicant by her father after he had made specific inquiry and received the assurance that the girl would be looked after.  It was, in my view, right to describe the case as one involving a gross breach of trust on the part of the applicant towards someone else’s daughter who had been placed in his care.

The penalties imposed for offences of this general kind, or for indecent dealing as they used to be charged, are notoriously variable and one must concede that it is not easy to find in any ready sense a tariff applicable to such cases.

Even so, I think that the penalty imposed in this case was not so excessive as to require the intervention of the Court.  I say that, considering as I do that it was also proper to take into account the fact that the applicant, who is a 28 year old man, has a record of offences at intervals over the last 3 or 4 years.

He was convicted in April 1987 of breaking and entering a dwelling house with intent.  He was ordered to serve 100 hours of community service, together with probation for 12 months.  In February 1988, he was convicted of an offence committed in January 1988, of wilfully and unlawfully damaging a telecommunication’s installation.  In consequence, no doubt of that, he was brought before the Magistrates Court in Beenleigh on 10 February 1988 and dealt with for the breach of probation.

Notwithstanding the warnings that might be thought to be implicit in that series of events, he was again before the District Court on 15 December 1989 for an offence of entering a dwelling house in the night-time with intent to commit an offence.  That offence was, it seems, committed on 30 April 1989 and the Court imposed a penalty of 6 months’ imprisonment in respect of it.  It seems that it was only after he had served the term of imprisonment associated with that offence that the trial in this case was brought on, although we were also told that there was a considerable delay, both in the reporting of the incident by the complainant to her parents, and by the parents to the police.

The penalty, in the present case, was imposed on the date of conviction, which was 24 April 1992, and it is apparent that the applicant has served somewhere near half of the sentence.  It was suggested to us that, in the circumstances, a proper course would be to treat the term already served as a sufficient sentence for the applicant and order his release forthwith.  However, I am of opinion that the sentence imposed was not excessive, having regard to the circumstances, and certainly not so excessive as to justify interference by this Court.  That being so, I would refuse the application for leave to appeal.

PINCUS JA:    I agree, that for the reasons which have been given by the presiding Judge the sentence should be regarded as no excessive, and I agree with the order that His Honour proposes.

THOMAS J:    I agree.

McPHERSON JA:     The application for leave to appeal against sentence is refused.  Thank you.
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