R v BCY

Case [2015] QCA 200

SUPREME COURT OF QUEENSLAND

CITATION:

R v BCY [2015] QCA 200

PARTIES:

R
v
BCY
(applicant)

FILE NO/S:

CA No 143 of 2015
DC No 117 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


District Court at Southport – Unreported, 25 June 2015

DELIVERED ON:

Orders delivered ex tempore 30 September 2015
Reasons delivered 23 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

30 September 2015

JUDGES:

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

ORDERS:

Orders delivered ex tempore on 30 September 2015:

1.   The application for leave to appeal is granted and the appeal against sentence is allowed.

2.   The sentence imposed at first instance is varied by suspending the sentence forthwith.

3.   The sentence imposed at first instance is otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the applicant pleaded guilty to two counts of taking an indecent photograph of a child under 16 years; four counts of indecently dealing with the child; and one count of making child exploitation material – where, on each count, the applicant was sentenced to a term of one year’s imprisonment, the terms to be served concurrently; suspended after four months, for an operational period of two years – where the sentencing judge referred to evidence of uncharged conduct described in a Schedule of Facts – where the nature of the applicant’s interest in the complainant, and that the conduct was not an “isolated lapse”, is apparent from the subject matter of the counts – where there was a real prospect that a victim impact statement described impacts that were, in part, not a product of the charged offences – where the charged conduct played a not insignificant role in the impacts described in the victim impact statement – whether the sentencing judge erred in considering evidence of uncharged conduct – whether the victim impact statement should be taken into account on sentencing

Penalties and Sentences Act 1992 (Qld), s 9

R v B[2003] QCA 105, discussed
R v Cooksley [1982] Qd R 405; (1982) 6 A Crim R 128, cited
R v D [1996] 1 Qd R 363; [1995] QCA 329, followed
R v Illin[2014] QCA 285, cited
R v Jobson [1989] 2 Qd R 464, distinguished
R v MBM (2011) 210 A Crim R 317; [2011] QCA 100, discussed
R v Roberts[2009] QCA 22, discussed
R v Rogers[2009] QCA 10, discussed
R v SCI; Ex parte Attorney-General (Qld)[2015] QCA 39, discussed
R v W[2000] QCA 321, discussed
R v Waszkiewicz[2012] QCA 22, discussed

COUNSEL:

The applicant appeared on his own behalf
S J Farnden for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. MARGARET McMURDO P:  For the reasons given by Peter Lyons J…

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Details
AGLC
R v BCY [2015] QCA 200
Case
[2015] QCA 200
Decision Date

CaseChat Overview and Summary

In the case of R v BCY, the applicant appealed against his sentence for multiple charges of taking indecent photographs of a child under 16 years, indecently dealing with the child, and making child exploitation material. The applicant entered the complainant's bedroom at night on various occasions, moved her clothing to view her genitalia, and took photographs. The applicant pleaded guilty to the charges and was sentenced to a term of one year's imprisonment for each count, to be served concurrently and suspended after four months, with an operational period of two years. The sentencing judge considered evidence of uncharged conduct described in a Schedule of Facts, which led to the applicant's argument that the judge erred in taking that evidence into account.

The legal issues that the court had to decide were whether the sentencing judge erred in considering evidence of uncharged conduct and whether the victim impact statement should be taken into account during sentencing. The court found that the sentencing judge did not err in considering evidence of uncharged conduct, as the nature of the applicant's interest in the complainant and the fact that the conduct was not an "isolated lapse" was apparent from the subject matter of the charges. The court also found that the victim impact statement should be taken into account on sentencing, as the charged conduct played a not insignificant role in the impacts described in the statement.

Based on the court's reasoning, the applicant's appeal against sentence was allowed, and the sentence imposed at first instance was varied by suspending the sentence forthwith. The sentence was otherwise confirmed. This decision highlights the importance of considering the age of the complainant, the persistence and frequency of the offending conduct, and the contribution of the offending conduct to the impacts described by the complainant during sentencing. It also demonstrates the court's willingness to take into account victim impact statements when they are relevant to the charged offences.

Orders

Orders of the court

Orders delivered ex tempore on 30 September 2015:

1. The application for leave to appeal is granted and the appeal against sentence is allowed.

2. The sentence imposed at first instance is varied by suspending the sentence forthwith.

3. The sentence imposed at first instance is otherwise confirmed.

Background

Background to the litigation

On occasions, the number of which is not stated, though the indictment alleges they occurred between 3 April 2005 and 19 January 2006, the applicant entered the complainant’s bedroom at night. He would move the complainant’s clothing to view the top of her vagina for about 30 seconds to a minute, and he would then take photographs. She would roll from her back, or her side, to her stomach to try and protect herself. Sometimes the applicant would wait beside her bed; sometimes he would duck down; sometimes he would hide in the room; and on occasion he would run out of the room. When he remained in the room, he would wait until he thought the complainant had gone back to sleep, and would start moving her clothes again and taking photographs. The complainant stated that the flash was used approximately 50 per cent of the time that the applicant moved her clothing. These events formed the basis for count 7.Additional context to the offending in Schedule of Facts On the night of 19 October 2002, the complainant’s parents were away from the home, because relatives were in hospital. The complainant stayed in the granny flat with the applicant and his wife. She slept on the couch. She woke up to feel her clothes moving. She felt her T-shirt being pulled away from her body in front of her chin, a distance of four or five centimetres. She opened her eyes, and saw a man’s hand moving away from her body. She then saw the applicant dart back into his bedroom. A short time later, at school, the complainant was involved in a discussion about inappropriate behaviour, in the course of which she was told what it was to be molested. She told a friend that she thought that it had happened to her, and the friend reported the matter to a teacher. The matter was then referred to the Department of Child Safety, and to the police. The complainant participated in an interview on 28 October 2002. She also told her parents, who said to her that it could be a misunderstanding. She said that she was not sure if the defendant had touched her, because she had been asleep; and she later said, “I’m not sure because I didn’t see anything”, by reason of the fact that it was dark. The matter was treated as unsubstantiated, and no further action was taken[3].[3]R 37. About a week after the interview, the applicant came into the complainant’s bedroom at night, but the complainant could not recall exactly what happened. One night about two weeks to a month after the interview, the applicant started to move the complainant’s clothes whilst she was in bed. These things preceded count 1[4].[4]R 37. Mr A was married to another sister of the complainant, and worked with the applicant. In about 2006 or 2007, he was assisting the applicant to redevelop a website. He had access to the applicant’s computer. He knew that the applicant had pornographic images on the computer, and he decided to look at them. He found a folder named “E” within which there were subfolders with numbers (perhaps representing either the complainant’s age, or the year that the photographs were taken). There were hundreds, and probably thousands, of photographs of the complainant, from the time she was 12 to the time she was 16 years of age. They showed the complainant sleeping, sometimes in her pyjamas. Many of the photographs showed the complainant’s pyjama top up, so that her bare breasts were exposed; or the pyjama bottoms were down, so that the complainant’s bare bottom was exposed. There were also photographs of the defendant’s hands touching the complainant, on the side, on her breasts, and on her nipples[5]. Mr A was shocked by these photographs. He told his wife (the complainant’s sister). Two to three weeks later, he decided to get evidence, and burnt the computer files of the photographs to a disc. The applicant’s family, including the applicant, the complainant’s family, and Mr A, were all active members of their Church. Mr A reported the matter to one of the Bishops of the Church. There was a meeting which involved the complainant’s parents, the applicant’s parents, and the Bishop. Mr A left the disc with the Bishop, and it was later destroyed by the applicant’s father[6].[5]R 39.[6]R 40.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the present case, significant features are the age of the complainant; the fact that she was in her own home and usually in her own bedroom when the offences were committed; the period of time over which the offending occurred; the persistence and frequency of offending conduct the subject of count 7; and the contribution of the offending conduct to the impacts described by the complainant. Apart from the applicant’s relative youth, particularly when the offending began, and his timely pleas of guilty, significant mitigating features are the absence of any criminal history; the strong evidence of substantial efforts to rehabilitate himself; the very low risk of recidivism; the absence of any subsequent offending conduct over a period of more than nine years; the punishment inflicted by his Church; his remorse; his contributions to his Church community; and the fact that in the years subsequent to his offending he has established a business likely to be adversely affected by a period of incarceration. The circumstances may well have justified sentences which did not require him to spend time in prison, notwithstanding s 9(5) of the PS Act. They certainly justify, in my view, the orders made at the hearing of this application.Conclusion For these reasons I support the orders made at the hearing.

Ratio Decidendi

Legal Principle Established

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