R v BCX

Case [2015] QCA 188

SUPREME COURT OF QUEENSLAND

CITATION:

R v BCX [2015] QCA 188

PARTIES:

R
v
BCX
(applicant)

FILE NO/S:

CA No 24 of 2015
DC No 287 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


District Court at Rockhampton – Unreported, 13 February 2015

DELIVERED ON:

Orders delivered ex tempore 3 June 2015
Reasons delivered 9 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

3 June 2015

JUDGES:

Margaret McMurdo P and Philippides JA and Burns J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Orders delivered ex tempore on 3 June 2015:

1.   The application for leave to appeal is granted.

2.   The appeal is allowed.

3.   The sentence imposed on count 1 is set aside and instead it is ordered that the appellant be released on probation for two years on the usual conditions and on the special condition that he undertake such medical, psychological or psychiatric treatment as directed by the relevant Corrective Services officer.

4.   The sentences on counts 2 and 3 suspending the sentences after six months is set aside and instead it is ordered that the sentences be suspended forthwith.

5.   The sentences imposed at first instance are otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of making child exploitation material and two counts of indecent treatment of a child under the age of 16 years with a circumstance of aggravation, that is, that the child was under 12 years – where the applicant was sentenced to six months’ imprisonment for making child exploitation material and 18 months’ imprisonment (suspended after serving six months for an operational period of two years) for the indecent treatment counts, to be served concurrently – where the applicant appealed on the ground that the sentencing judge erred in not making a finding of “exceptional circumstances” under s 9(4) of the Penalties and Sentences Act 1992 (Qld) – where the applicant also appealed on the ground that the sentences imposed were, irrespective of any finding of “exceptional circumstances”, manifestly excessive in all of the circumstances – whether the sentencing judge erred in not making a finding of “exceptional circumstances” – whether the sentences were manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(4), s 9(5), s 9(6), s 9(7), s 9(9A)

Baker v The Queen (2004) 223 CLR 513; [2004] HCA 45, cited
Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39, cited
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, cited
Norbis v Norbis (1986) 161 CLR 513

Continue reading R v BCX

Sign in free to access the full text

Details
AGLC
R v BCX [2015] QCA 188
Case
[2015] QCA 188
Decision Date

CaseChat Overview and Summary

In this case, the appellant, BCX, was convicted of making child exploitation material and two counts of indecent treatment of a child under the age of 16 years, with an aggravating circumstance that the child was under 12 years at the time of the offences. The appellant was sentenced to six months' imprisonment for the first count and 18 months' imprisonment (suspended after serving six months for an operational period of two years) for the other counts, to be served concurrently. The appellant appealed against the sentences imposed, arguing that the sentencing judge erred in not finding "exceptional circumstances" under s 9(4) of the Penalties and Sentences Act 1992 (Qld), and that the sentences were manifestly excessive in all of the circumstances.

The legal issues before the court were whether the sentencing judge erred in not making a finding of "exceptional circumstances" and whether the sentences imposed were manifestly excessive. The court considered the arguments presented by the appellant's counsel, including the causal significance of the appellant's underlying mental disorders to the offending, and the reduced significance of general deterrence and denunciation. The court also noted that the sentencing judge did not have the benefit of argument regarding the extent to which a true parallel could be drawn between this case and the conclusion in Quick, where a finding of exceptional circumstances was made.

The court found that, while it could not be said that the sentencing judge failed to bring into account any one relevant factor, his Honour's attention could have been more effectively drawn to the significance of the causal relationship between the mental disorders and the offending, the reduced significance of general deterrence and denunciation and the appellant's prospects of rehabilitation. However, the court held that it would have been open to the sentencing judge to conclude that an actual term of imprisonment should be served in this case. Nonetheless, the court found that the causal relationship between the mental disorders and the offending as well as the appellant's prospects of rehabilitation called for a slightly greater degree of restraint in the fixing of the custodial portions of the terms of imprisonment which were imposed.

The court allowed the appeal and set aside the sentences imposed on counts 1, 2 and 3, ordering that the appellant be released on probation for two years on the usual conditions and on the special condition that he undertake such medical, psychological or psychiatric treatment as directed by the relevant Corrective Services officer. The sentences on counts 2 and 3 were also ordered to be suspended forthwith. The sentences imposed at first instance were otherwise confirmed.

Orders

Orders of the court

Orders delivered ex tempore on 3 June 2015:

1. The application for leave to appeal is granted.

2. The appeal is allowed.

3. The sentence imposed on count 1 is set aside and instead it is ordered that the appellant be released on probation for two years on the usual conditions and on the special condition that he undertake such medical, psychological or psychiatric treatment as directed by the relevant Corrective Services officer.

4. The sentences on counts 2 and 3 suspending the sentences after six months is set aside and instead it is ordered that the sentences be suspended forthwith.

5. The sentences imposed at first instance are otherwise confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In CBI, the appellant was convicted after a trial with respect to two counts of indecently dealing with a child under the age of 16 years with the circumstance of aggravation present in this case, that is, that the victim was under the age of 12 years at the time of both offences. He was sentenced to an effective head sentence of 18 months’ imprisonment with a parole eligibility date fixed at the halfway point. The victim was the eight-year-old daughter of a woman who was in a relationship with the offender’s son. The offender had no criminal history and was aged 66 and 67 at the time of the offences, one of which involved contact with the child’s genital area through her clothes and the other which involved “skin on skin” touching of the same area. It was argued on appeal that insufficient regard had been paid by the sentencing judge to the offender’s advanced age and the likely effect incarceration would have on him given his age but, after reviewing various comparable decisions,[39] that argument was rejected and the sentence imposed at first instance was confirmed.[40][39]In particular, R v KT; ex parte A-G (Qld) [2007] QCA 340.[40]CBI at [22] per Fraser JA, with whom Gotterson JA and Mullins J agreed.Conclusion The above consideration of the sentences imposed in this case is not so much revealing of error as it is of issues of weight to be attributed to the various sentencing factors. It cannot, for instance, be said that the sentencing judge failed to bring into account any one relevant factor but, in my respectful view, his Honour’s attention could have been more effectively drawn to the significance of the causal relationship between the mental disorders and the offending, the reduced significance of general deterrence and denunciation and the applicant’s prospects of rehabilitation. Had that occurred, his Honour might very well have found that exceptional circumstances existed when regard was also had to the circumstances of the offending, the absence of any effect on the child, the absence of any previous convictions, the presence of remorse and the other factors personal to the applicant, including his plea of guilty. But I would not go so far as to hold that the sentencing judge was required to conclude that those matters constituted exceptional circumstances on the facts of this case. Even giving proper weight to the significance of the causal relationship between the mental disorders and the offending as well as the applicant’s prospects of rehabilitation, and reduced weight to general deterrence and denunciation, it would nevertheless have been open to the sentencing judge to conclude that an actual term of imprisonment should be served in this case. However, and without disturbing the conclusion that an actual term of imprisonment needed to be imposed in this case, I do think that the causal relationship between the mental disorders and the offending as well as the applicant’s prospects of rehabilitation called for a slightly greater degree of restraint in the fixing of the custodial portions of the terms of imprisonment which were imposed.

Ratio Decidendi

Legal Principle Established

Lastly, in the absence of any statutory definition of “exceptional circumstances”, it is understandable why a sentencing judge might seek to draw guidance from the findings made on that point in other cases, and particularly where those cases have been the subject of appellate review. But such an approach can be fraught because it is prone to distract from the requirements of the sentencing task as just discussed. Moreover, rarely, if at all, will the circumstances of one case be sufficiently comparable with the circumstances of another case to derive much assistance from such an exercise. Indeed, just as it would be inappropriate for a sentencing judge to grade the criminality in a case at hand through a comparison of aggravating and mitigating factors in other cases as if there could only ever be a single correct sentence[29] so, too, would it be inappropriate to conclude that a finding of exceptional circumstances, or not, in one case dictates that the same finding should be made in another.[29]R v Dwyer [2008] QCA 117 at [37] per Keane JA. And see Markarian at [27] per Gleeson CJ, Gummow, Hayne and Callinan JJ.Consideration In written and oral submissions to this Court on behalf of the applicant, Mr Fraser of counsel (who did not appear in the court below) argued that the learned sentencing judge erred by failing to find the existence of exceptional circumstances and that, in any event, the sentences imposed were manifestly excessive in all of the circumstances. In support of that argument, Mr Fraser placed particular emphasis on the causal significance of the applicant’s underlying disorders to the offending. Furthermore, in written argument, Mr Fraser submitted that the presence of those disorders meant that this case did not present as a good vehicle for general deterrence and Mr Cowen QC (who, likewise, did not appear in the court below) very properly drew the Court’s attention to this very point at the outset of his oral submissions on behalf of the Crown. As already discussed, the sentencing judge was taken by the conclusion reached by Chesterman JA in Quick against a finding of exceptional circumstances because, his Honour considered, the factors in that case were “very similar” to the factors in this case. In addition to the observations just made about such an approach, it is also important to observe that the sentencing judge was not referred to Quick by either counsel in the court below. His Honour therefore did not have the benefit of argument regarding the extent to which a true parallel could be drawn between this case and the conclusion in Quick. Had his Honour been assisted in that way, at least one essential difference between this case and the facts in Quick may well have emerged. In Quick, although there was evidence from a psychiatrist to the effect that the respondent suffered from “depression, and the devastating effect upon him of the loss of his teaching career consequent upon” his offending behaviour,[30] that was a far cry from the mental disorders which afflicted the applicant at the time of the subject offences. Nor did Mr Quick’s depression appear to bear any causal relationship to his offending. Here, the unchallenged medical evidence was that the applicant’s ability to cope with external stressors was limited by his mental disorders. When such stressors arose in the form of the death of his friend and the emotional difficulties he was experiencing with his partner, the applicant resorted to what the reporting psychiatrist described as “an ill advised attempt at self-treatment with benzodiazepines”. In consequence, his judgment was compromised, he became disinhibited and he engaged in “obsessional and autistic thinking”. In short, there was a cascading series of events which had, at their root, the applicant’s mental disorders.[30]Quick at [4] per de Jersey CJ.