R v Wruck

[1992] QCA 201

COURT OF APPEAL [1992] QCA 201

PINCUS JA
McPHERSON JA

DEMACK J

CA No 107 of 1992

THE QUEEN

v.

ANTHONY EDWARD WRUCK

Applicant

BRISBANE

.. DATE 2/6/92

JUDGMENT

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020692 T 7/KP M/T COA92/171

JUDGMENT

DEMACK J: The applicant was charged with attempting to commit

an offence under s 217(1) under the Criminal Code, and two
charges under s 210(6) of the Criminal Code. He pleaded not

guilty and was tried and convicted.

The offences concerned a 14 year old girl. The circumstances

briefly were that the girl answered an advertisement that the

applicant placed in a newspaper seeking responses from persons

interested as acting as strippers in connection with a

business he was running.

On 27 February 1991, the girl went to the business address and

certain photographs were taken. She attended again the next

day and further photographs were taken. These two events

relate to the charges under s 210(6).

The next evening, she was offered work at a men only function

conducted by a football club. She was to be offered as the

prize in a raffle. The applicant made clear statements at the

event which indicated that this girl of 14 years was to be the

prize in the raffle. She was to have intercourse with the

winner in a caravan at the back of the club premises.

The evidence given at the trial included evidence from a

police officer who attended at the function. It is perhaps

most relevant to refer briefly to some of his evidence which

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describes the applicant's activities with the girl.

The police officer said, "The applicant was standing on the

stage. He said, 'Hey arseholes, I know you aren't buying
enough tickets in the raffle, so I will show you the raffle.'

I then observed a female person - the girl - who was sitting

on the rear of the stage. She hopped on the stage and joined

the accused. The accused said, 'Boys, we aren't raffling

chooks, we aren't raffling beers. If you want to see what you
get for $5 ...’ - he lifted the girl’s top and exposed her

breasts. He squeezed one of her breasts and said, 'Imagine

sucking on these tits.' He encouraged the men present to buy
raffle tickets saying, 'If you want half an hour out the back
in the caravan with the girl, $5 is all it costs and you can

buy your tickets off the Chink.’” Apparently, one of the

assistants was an Asian looking topless waitress who was

selling the tickets.

The photographs which were taken in two batches include one

cluster of 38 photographs which were taken of the girl and

they show her in various stages of dress and undress. There

are many of them in which she appears naked and a number of

them in which she is lying on her back with her external

genitalia fully exposed.

The applicant was 33 years of age when sentenced. It was

submitted to the trial Judge on his behalf that he was an

asthmatic. It was said that he was looking after an

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intellectually impaired wife and was on a carer's pension.

The sentencing Judge, Judge Boyce, dealt in some detail with

his sentencing remarks. He referred to the offence, noting

that the offence of taking indecent photographs of children -

that's the offence under s 210.6 - was introduced into the

Queensland Criminal Code in 1989. He said, "It follows

growing public concern about the sexual exploitation of

children. I note that it's appropriate in considering penalty

to take into account the age of the child concerned, the

degree of indecency of the photographs, the circumstances

under which the photographs were taken, and the purpose for

which they were taken."

He referred then to some of the evidence about the

photographs, noting that the applicant maintained an album of

such photographs to show to clients. The photographs then
were clearly taken for commercial purposes and the nature of

the photographs makes it abundantly clear what was to be

involved in those commercial activities. His Honour referred

to the facts relating to attempting to procure an underage

girl to be involved in prostitution and the only matter that I

think His Honour mentioned, which has not been mentioned by

me, was that the police were alerted by a Salvation Army

officer who was concerned for the girl’s welfare.

His Honour went on to say, "All in all your activities involve

using a 14 year old child as if she were a piece of meat. The

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business you carried on at that time may be fairly described

as that of a sleaze merchant. It shows on your behalf that

the girl was a willing party, the purpose of the legislation

is to protect underage girls, even those who do not wish to be

protected." He pointed out the difficulties of detecting

offences of this kind because children are reluctant to be

involved in the trauma and publicity surrounding court

proceedings.

He went on, "Deterrence is of more than ordinary importance in

this type of case. Parliament in 1989 significantly increased

the maximum penalties for sexual offences against children.

It's the duty of the Courts to give effect to the intention of

Parliament as shown in amending legislation. It's necessary

to deter you from similar activities, it's necessary to deter

others from similar activities."

The maximum sentence that he could impose on the attempt to

commit the offence under s 217.1 was three and a half years.

The maximum penalty in relation to the photographs was two

years. His Honour imposed a sentence of two years'

imprisonment in respect of the attempt to commit the offence

under s 217.1 and nine months in respect of the photographs.

It was submitted that the sentence in respect of the attempt

was excessive, but I'm not persuaded that His Honour in any
way applied any incorrect sentencing principles. The fact

that this is not a matter which has previously been before

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this Court means that in a sense this sentence is setting a

standard; it seems to me to be an entirely appropriate

standard, given the nature of the case.

So far as the photographs are concerned, it would seem to me

that again the sentence that was imposed was entirely

appropriate and the factors that the sentencing Judge took

into account are the correct factors. I would refuse the

application for leave to appeal.

McPHERSON JA: I agree.

PINCUS JA: I agree.

DEMACK J: The application for leave to appeal is refused.

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