R v Davidson; ex parte

[2009] QCA 283

SUPREME COURT OF QUEENSLAND

CITATION:

R v Davidson; ex parte A-G (Qld) [2009] QCA 283

PARTIES:

R
v
DAVIDSON, Shayne Thomas
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 172 of 2009
DC No 262 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED EX TEMPORE ON:

18 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

18 September 2009

JUDGES:

Keane, Holmes and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – OTHER MATTERS – where respondent pleaded guilty to one count of indecently dealing with a child under 12 years – where respondent sentenced to nine months imprisonment, to be served by way of intensive correction order – where respondent had no criminal history, pleaded guilty to an ex officio indictment, desisted when complainant asked him to and offending at lower end of range of indecent dealing offences – where complainant’s father assaulted respondent, causing him permanent impairment and loss of his livelihood – whether this extra-curial punishment, with the other mitigating factors, warranted a non-custodial sentence – whether sentence imposed was a proper one

R v Daetz (2003) 139 A Crim R 398; [2003] NSWCCA 216, cited
R v Hannigan (2009) 52 MVR 172; [2009] QCA 40, cited
R v Quick; Ex parte Attorney-General (Qld) (2006) 166 A Crim R 588; [2006] QCA 477, cited
R v Roberts[2009] QCA 22, cited

COUNSEL:

A W Moynihan SC, with L P Brisick, for the appellant
C W Heaton for the respondent

SOLICITORS:

Director of Public Prosecutions (Qld) for the appellant
Legal Aid Queensland for the respondent

KEANE JA:  Justice Holmes will deliver her reasons first.

HOLMES JA:  The Attorney-General appeals against a sentence of nine months imprisonment, to be served by way of an intensive correction order, imposed on the respondent in respect of one count of indecently dealing with a child under 12 years.

The respondent was aged 41 at the time of the offence.  He did not have any previous convictions.  According to an agreed schedule of facts, he had been watching football and drinking alcohol at the home of a friend one evening in June 2008.  At about 11.00 pm he entered the bedroom of his friend's 10 year old son.  He massaged the child's penis under his clothing, waking him.  He remarked, "You're a pretty boy."  He had a play arm wrestle with the child, offered him a small present and then said, "Show me how big your willy is and I'll show you how big mine is."  The child refused and asked the respondent to go away because he was tired.  The respondent did so.

Later that night, the child told his father what had happened.  He set upon the respondent, throwing him on the ground several times,…