SUPREME COURT OF QUEENSLAND
CITATION:
R v Brown; Ex parte Attorney-General (Qld) [2016] QCA 156
PARTIES:
R
v
BROWN, Jake George
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)FILE NOS:
CA No 116 of 2015
DC No 130 of 2015
DC No 131 of 2015DIVISION:
Court of Appeal
PROCEEDING:
Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT:
District Court at Maroochydore – Date of Sentence: 14 May 2015DELIVERED ON:
14 June 2016
DELIVERED AT:
Brisbane
HEARING DATE:
3 December 2015
JUDGES:
Fraser JA and Jackson and Bond JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
The sentences on counts 10, 11, 14, 22, 24, 25, 26 and 27 be varied to the extent that the parole eligibility date should be fixed at five years and four months.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent was sentenced to nine years of imprisonment on each of six counts of rape and two counts of sodomy which were the major offences – where the respondent was sentenced to lesser periods of imprisonment, to be served concurrently, for 23 other offences of assault with intent to rape, further counts of rape, procuring a sexual act by coercion, using electronic communications to procure a child under 16, indecent treatment of a child under 16, possessing child exploitation material and distributing child exploitation material – where no serious violent offence declaration was made – where the parole eligibility date was fixed at four years – where the respondent made contact with each of five complainants through social media and requested nude photographs or sex in exchange for money – where the major offences were committed in three episodes against three separate complainants – where all three episodes involved multiple or prolonged rapes as well as some actual violence by choking, two episodes involved threats and the last episode was committed while the respondent was on bail – whether the sentence was manifestly inadequate – whether a discretionary declaration of a serious violent offence should have been made or, if not, the respondent’s parole eligibility date should have been delayed to a date later than the halfway mark
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS – where the Attorney-General, by supplementary written submissions, sought to argue that the respondent’s autism spectrum disorder was a factor in aggravation of the sentence that might otherwise be imposed – where that contention was not advanced before the sentencing judge – whether the Attorney-General should be permitted to raise that argument on the appeal
Corrective Services Act 2006 (Qld), s 184
Criminal Code (Qld), s 348, s 349, s 669A
Penalties and Sentences Act 1992 (Qld), s 9, s 160D(3), s 161A, s 161B, s 161C
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- AGLC
- R v Brown; Ex parte [2016] QCA 156
- Case
- [2016] QCA 156
- Decision Date
CaseChat Overview and Summary
The court considered whether the sentence was manifestly inadequate, noting that while the head sentence of nine years was lenient, it was markedly different from other sentences and that interference was only justified where the difference was such that there “must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.” The court also considered whether a discretionary declaration of a serious violent offence should have been made, noting that the making of such a declaration would have a serious aggravating effect upon the sentence, and that the sentencing judge had the discretion to impose a sentence towards the lower end of the applicable range if a declaration was to be made, or towards the higher end if it was not. The court ultimately concluded that the sentencing judge’s exercise of discretion had not miscarried to the requisite degree of satisfaction.
The court also considered whether the Attorney-General should be permitted to raise the argument that the respondent’s autism spectrum disorder was a factor in aggravation of the sentence that might otherwise be imposed, noting that this contention had not been advanced before the sentencing judge. The court concluded that it was not appropriate to permit the Attorney-General to raise this argument on the appeal.
The court varied the sentences on counts 10, 11, 14, 22, 24, 25, 26 and 27 to the extent that the parole eligibility date should be fixed at five years and four months.
Orders
Orders of the court
The sentences on counts 10, 11, 14, 22, 24, 25, 26 and 27 be varied to the extent that the parole eligibility date should be fixed at five years and four months.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
This analysis shows that the head sentence of nine years in the present case was a lenient sentence, even allowing for a considerable reduction in what would otherwise have been the accumulation of separate periods of imprisonment for the major offences and the other offences, because that would have produced a crushing overall sentence. Nevertheless, with some diffidence, I have reached the conclusion that his Honour’s exercise of discretion has not been shown to have miscarried to the requisite degree of satisfaction. Manifest inadequacy is not justified because the result arrived at below is markedly different from other sentences. Interference is only justified where the difference is such that there “must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.”[38][38]R v Margaritis; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 317, 321 [38], referring to Hili v The Queen (2010) 242 CLR 520, 538–541.Discretionary declaration of serious violent offence In R v Bojovic,[39] this court acknowledged that the courts are not “to subvert the intentions of Part 9A [of the PSA] by reducing what would otherwise be regarded as an appropriate sentence” and continued:“What has to be determined is whether in all the circumstances it is desirable that such a declaration be made. In deciding whether or not to make it, the court should not be blind to the fact that the making of it will have a serious aggravating effect upon the sentence.”[40][39][2000] 2 Qd R 183.[40][2000] 2 Qd R 183, 190 [27]–[28]. The court continued, speaking of an example case where the question of a declaration is discretionary:“… [I]f according to ordinary principles a violent offence seems to call for a sentence of between six and eight years, and it is one where the discretion to make a violent offender declaration arises, such that it might but not must be made, the sentencing judge has the discretion in the event that a declaration is to be made, to impose a sentence towards the lower end of the applicable range. Conversely if the Judge is to give the offender the benefit of declining to make such a declaration, it might be appropriate to consider imposing a sentence towards the higher end of the range. If this were not done, it is difficult to see how the sentencing judge could properly discharge his or her duty under s 9 of the Act. A just sentence is the result of a balancing exercise that produces an acceptable combination of the purposes mentioned in s 9(1)(a) to 9(1)(e) of the Act.”[41][41][2000] 2 Qd R 183, 191–192 [34]. I have previously mentioned Williams in which a discretionary declaration of an SVO was involved. As well, in R v Benjamin[42] this court considered a discretionary declaration of an SVO in relation to the offence of rape. In that case Margaret McMurdo P said:“As in almost all rape offences, the present offence involved a degree of actual violence and the infliction on the complainant of physical bodily harm with psychological after-effects. But there was no threat to kill or maim, no use of a weapon and no permanent physical injury, features which are all too commonly associated with offences of rape. Nor was there any aggravating feature of revenge or sadistic cruelty. The applicant’s criminal history was limited and his good work record does not presently suggest that his parole release date need be delayed beyond 50% in order to protect the community. He is 27 years old. He seems to have the support of his partner and his family. He cooperated with the administration of justice by supplying DNA for testing which led to his arrest and by his early plea of guilty. These matters in combination suggest he may be a suitable candidate for parole and rehabilitation. Whilst the applicant has committed a most grave offence, there is nothing about it that takes it into the more serious examples of rape offences warranting a declaration.”[43] (footnotes omitted)[42](2012) 224 A Crim R 40.[43](2012) 224 A Crim R 40, 43–44 [4].