R v DBQ

Case [2018] QCA 210

SUPREME COURT OF QUEENSLAND

CITATION:

R v DBQ [2018] QCA 210

PARTIES:

R
v
DBQ
(applicant)

FILE NO/S:

CA No 43 of 2018
DC No 333 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 2 March 2018 (Richards DCJ)

DELIVERED ON:

11 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

25 July 2018

JUDGES:

Philippides JA and Boddice and Bond JJ

ORDERS:

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

2.   The appeal be allowed.

3.   The sentence is varied to the extent that the head sentence of seven years imprisonment is set aside and, in lieu thereof, a head sentence of six years is imposed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where in Victoria the applicant had sexual intercourse with the complainant when she was 13 years old and he was 33 years old – where shortly afterwards the applicant and complainant moved to Queensland – where the applicant maintained a relationship with her until after she turned 16 – where during the period of maintaining the applicant had regular sexual interactions with the complainant – where the applicant was prosecuted in Victoria for sexual penetration of a child – where the applicant was sentenced to two years imprisonment, wholly suspended for a period of three years and the applicant was declared a registered sex offender for a period of 15 years – where the applicant was then extradited to Queensland and convicted of one count of maintaining a sexual relationship with a child under 16, with a circumstance of aggravation that he had unlawful carnal knowledge of a child under 16 – where the applicant was sentenced to seven years imprisonment with a parole eligibility date fixed after serving two years and three months – where the sentencing judge observed that the sentence in Victoria was a factor to be taken into account, however noted that if the offending in Victoria had been included it would have extended the period of offending – where the applicant seeks leave to appeal against the sentence – whether the sentence imposed was manifestly excessive in all the circumstances – whether the sentencing judge failed to give effect to totality considerations

Criminal Code (Qld), s 229B
Sex Offenders Registration Act 2004 (Vic), s 34

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied
R v AAF[2008] QCA 235, considered
R v B[1995] QCA 636, considered
R v Beattie; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 177; [2014] QCA 206, considered
R v H (1993) 66 A Crim R 505; [1993] QCA 240, cited
R v KN[2005] QCA 74, considered
R v MAN[2005] QCA 413, considered
R v McAnally[2016] QCA 329, considered
R v MCK[2017] QCA 56, considered
R v SAG (2004)…

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AGLC
R v DBQ [2018] QCA 210
Case
[2018] QCA 210
Decision Date

CaseChat Overview and Summary

In the matter of R v DBQ, the applicant was convicted in Queensland for maintaining a sexual relationship with a child under the age of 16, with the aggravating circumstance that he had unlawful carnal knowledge of a child under 16. The applicant had engaged in sexual activities with the complainant, who was 13 years old at the commencement of the relationship, when he was 33 years old. The relationship continued until after the complainant turned 16 years old. The applicant had previously been convicted in Victoria for sexual penetration of a child and was sentenced to two years imprisonment, wholly suspended for a period of three years, and declared a registered sex offender for 15 years. The Queensland court sentenced the applicant to seven years imprisonment, with a parole eligibility date fixed after serving two years and three months. The applicant sought leave to appeal against the sentence, arguing that it was manifestly excessive or inadequate, and that the sentencing judge failed to give effect to the totality considerations.

The primary legal issues in this appeal were whether the sentence imposed was manifestly excessive or inadequate, and whether the sentencing judge failed to give proper effect to the totality principle. The applicant argued that the sentence was manifestly excessive because the sentencing judge did not adequately consider the totality principle and the previous sentence imposed in Victoria. The respondent contended that the sentencing judge appropriately exercised the sentencing discretion by taking into account the Victorian sentence and that the totality principle should not be used to provide an impermissible benefit.

The court allowed the appeal and varied the sentence to six years imprisonment, with a parole eligibility date set at the same date as the previously imposed sentence. The court found that the sentencing judge had failed to give proper effect to the totality principle and that the sentence imposed was manifestly excessive. The court emphasised that the totality principle requires a sentencer to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The court concluded that a combined head sentence of nine years would not have fallen within the sentencing discretion had the applicant been dealt with for all the offending, including the Victorian offending. Therefore, the court reduced the head sentence from seven years to six years.

In conclusion, the court allowed the applicant's appeal against the sentence and varied the sentence to six years imprisonment, with a parole eligibility date set at the same date as the previously imposed sentence. The court found that the sentencing judge had failed to give proper effect to the totality principle and that the sentence imposed was manifestly excessive. The court emphasised the importance of considering the totality of the criminality involved in all the offences when imposing a sentence.

Orders

Orders of the court

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

2. The appeal be allowed.

3. The sentence is varied to the extent that the head sentence of seven years imprisonment is set aside and, in lieu thereof, a head sentence of six years is imposed.

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 R v MAN,[28] the applicant’s sentence on his guilty pleas to two counts of maintaining with a circumstance of aggravation with two complainants (aged between 12 and 15) was reduced on appeal from nine years imprisonment to five years with release after serving 18 months. There was no violence or intimidation. Both complainants had two children each with the applicant. Three of those children were born before the complainants turned 16 years old. The age gap between the complainants and the applicant was seven years and there was a 10 year delay in prosecuting the applicant. By the time he was sentenced, the applicant had full time custody of one of the children. He cooperated with police, made full admissions and was considered unlikely to reoffend.[28][2005] QCA 413.Conclusion The applicant was not being dealt with for offences against more than one child victim. Having regard to other authorities put forward at sentence and before this Court, as a yardstick, a combined head sentence of nine years would not have fallen within the sentencing discretion had the applicant been dealt with on the one occasion for all the offending including the Victorian offending. I would allow the application and re-exercise the sentencing discretion by sentencing the applicant to a term of six years imprisonment in lieu of the term of seven years. That sentence cannot be the subject of suspension. In re-exercising the discretion, I would order a parole eligibility date set at the same date as the previously imposed sentence (2 June 2020). I am conscious that that results in a date a little over a third of the sentence of six years. However, in my view, in the circumstances of this case, that is appropriate given the lateness of the plea.Order The orders I propose are:1.The application for leave to appeal against sentence is granted.2.The appeal be allowed.3.The sentence is varied to the extent that the head sentence of seven years imprisonment is set aside and, in lieu thereof, a head sentence of six years is imposed. BODDICE J: I agree with Philippides JA. BOND J: I agree with the reasons for judgment of Philippides JA and with the orders proposed by her Honour.

Ratio Decidendi

Legal Principle Established

Citing R v McAnally,[5] and authorities discussed therein, the respondent submitted that the relevant authorities indicate that the scope of the totality principle looks to the total period spent in custody. It was submitted that the sentencing judge rightly identified that there was no time spent in custody in Victoria. The import of the Victorian sentence therefore was limited in its effect on the appropriate sentence for the present offending and was appropriately taken into account. Further, to reduce the head sentence by two years, on the basis that that was the head sentence imposed in Victoria, would be to give an impermissible benefit. In contending that the sentencing discretion was appropriately exercised, reference was made to R v KN,[6] R v AAF[7] and R v B;[8] and the general considerations as outlined by Jerrard JA in R v SAG.[9]Consideration[5][2016] QCA 329.[6][2005] QCA 74.[7][2008] QCA 235.[8][1995] QCA 636.[9](2004) 147 A Crim R 301; [2004] QCA 286.The totality principle In Mill v The Queen,[10] the High Court adopted, as a succinct description of the totality principle, the following statement from Thomas, Principles of Sentencing, 2nd ed. (1979), pp 56-57:[11]“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”[10](1988) 166 CLR 59.[11](1988) 166 CLR 59 at 63. As observed in Mill,[12] the application of the principle becomes more complicated where the offender commits a number of offences within a short space of time in more than one State. Upon the offender being apprehended and sentenced to a term of imprisonment in one State, the other State cannot proceed to deal with him in respect of an offence committed in that State until he is released from custody in the first State. That may involve a deferment of the processes of the criminal law in the second State for a period of years.[12](1988) 166 CLR 59 at 63. The applicant was correct to take issue with the respondent’s submission that the totality principle is directed to the moderation of a sentence to take into account the custodial component of the sentences in total. In advancing its submission, the respondent relied on the adoption in McAnally[13] of the following expression of the totality principle by McMurdo J in R v Beattie; Ex parte Attorney-General (Qld):[14]“The ambit of the totality principle has been extended in at least two ways. The first, which is illustrated by Mill v The Queen, is where an offender commits a number of offences within a short space of time but in more than one State. Upon being sentenced to a term of imprisonment in one State, the offender cannot be sentenced in the other State until he is released from custody under the first sentence. In such a case, it is necessary for the second sentencing judge to consider in aggregate the sentences and if necessary to moderate the sentence then to be imposed. The principle has also been extended in the sentencing of an offender who is then serving an existing sentence. In such a case, ‘the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable’.”[13][2016] QCA 329 at [41].[14](2014) 244 A Crim R 177 at 181; [2014] QCA 206 at [19] (emphasis added; footnotes omitted).