R v Downs

Case [2023] QCA 223

SUPREME COURT OF QUEENSLAND

CITATION:

R v Downs [2023] QCA 223

PARTIES:

R
v
DOWNS, Ashley James
(applicant)

FILE NO/S:

CA No 197 of 2023
DC No 543 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport – Date of Sentence 13 October 2023 (Rosengren DCJ)

DELIVERED ON:

17 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

13 November 2023

JUDGES:

Mullins P and Morrison and Bond JJA

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 10 counts of sexual assault and four counts of common assault – where the applicant was sentenced to a head sentence of 18 months’ imprisonment with all sentences to be served concurrently – where all sentences are to be suspended after serving five months – where the applicant contends that no period of actual imprisonment should have been imposed – where the applicant contends that he should have been convicted, with no further punishment, or fined for the counts of common assault – where the primary judge considered general deterrence as the paramount sentencing consideration – where the applicant was in a position of authority over the complainants – where the primary judge found the applicant knew his conduct was wrong, but persisted nonetheless – whether the sentence was manifestly excessive

R v Abdullah[2023] QCA 189, considered
R v Al Aiach [2007] 1 Qd R 270; [2006] QCA 157, considered
R v Eaton[2019] QCA 147, cited

COUNSEL:

J R Jones and G F Perry for the applicant
S L Dennis for the respondent

SOLICITORS:

Potts Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. MULLINS P:  I agree with Morrison JA.

  2. MORRISON JA:  The applicant pleaded guilty to 10 counts of sexual assault and four counts of common assault.  The offences of sexual assault carried a maximum penalty of 10 years imprisonment, whilst the common assault offences carried a maximum of three years imprisonment.

  3. The counts related to eight young women who were working in Domino’s Pizza stores where the applicant was the Manager.  The first two complainants were assaulted in 2007 to 2008.  The other six were assaulted in 2017 to 2019.  All of the complainants were aged between 15 and 17 years at the time of the offending.  The applicant was 25 to 26 years old for the first two complainants in time, and 35 to 37 years for the other six.

  4. The applicant was sentenced to the following terms of imprisonment:

    (a)on counts 1, 3, 4 and 11: 18 months, suspended after serving five months;

    (b)on counts 2, 5, 10, 12, 13 and 14: 12 months, suspended after serving five months; and

    (c)on counts 6-9 (common assault): four months.

  5. All terms were to be served concurrently.  The operational period for the suspension was two years.

  6. The applicant seeks…

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Details
AGLC
R v Downs [2023] QCA 223
Case
[2023] QCA 223
Decision Date

CaseChat Overview and Summary

The applicant, who was the manager of a pizza store, pleaded guilty to ten counts of sexual assault and four counts of common assault against young female employees. The applicant was sentenced to a head sentence of 18 months’ imprisonment with all sentences to be served concurrently, and all sentences were to be suspended after serving five months. The applicant sought leave to appeal the sentences on the basis that they were manifestly excessive. Specifically, the applicant argued that no period of actual imprisonment should have been imposed and that he should have been convicted, with no further punishment, or fined for the counts of common assault.

The primary judge had considered general deterrence as the paramount sentencing consideration, noting that the applicant was in a position of authority over the complainants and knew his conduct was wrong but persisted. The applicant contended that the sentences were manifestly excessive, particularly the requirement to serve any period of actual imprisonment and the imposition of a term of imprisonment for the common assault counts. The applicant argued that the sentences were unreasonable or plainly unjust, and that there had been a misapplication of principle.

The court held that the sentences on counts 6-9 were not unreasonable or plainly unjust. The court found that the applicant did not challenge the sentence of 18 months’ or 12 months’ imprisonment on the sexual assault counts, instead contending that the sentence should have been immediately suspended. The court also found that the four months on each of the common assaults was not manifestly excessive, given that such offences are often the subject of fines, not imprisonment. The court refused the application for leave to appeal against sentence.

The court's reasoning was based on the principle that in order to establish that the sentence is manifestly excessive, the court must be satisfied that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. The court found that the primary judge had not misapplied any principle in imposing the sentences. The court also noted that the applicant did not challenge the sentence of 18 months’ or 12 months’ imprisonment on the sexual assault counts, but only contended that the sentence should have been immediately suspended. The court found that this did not establish that the sentence was manifestly excessive. The court also found that the four months on each of the common assaults was not manifestly excessive, given that such offences are often the subject of fines, not imprisonment.

The final orders were that the application for leave to appeal against sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

Background

Background to the litigation

The applicant seeks leave to challenge the sentences on the basis that they are manifestly excessive. However, the challenge is limited to:(a)the requirement to serve any period of actual imprisonment; and (b)the imposition of a term of imprisonment for the common assault counts (counts 6-9).The background facts The applicant was the manager at a pizza store. Each of the complainants were young women who worked at the store. An agreed schedule of facts revealed the circumstances of the offending.Count 1 – sexual assault - complainant A In 2007/2008 the complainant was working with the applicant and another worker. She was standing at the work bench and the applicant walked up behind her and unclipped her bra. The applicant placed both his hands on the front of her breasts and squeezed them. The applicant laughed and said words to the effect of it being a “hand bra”. The complainant turned to stop the applicant touching her breasts.Count 2-4 – sexual assault - complainant B In 2007 or 2008, the complainant was standing at some equipment in the store. The applicant walked past her, slapped her on the bottom and then kept walking. (Count 2). In 2008, on a Wednesday night the applicant was teaching the complainant how to drive a manual car using the store’s car. They had just completed a delivery of pizza and the applicant leaned over and grabbed one of the complainant’s breasts. The applicant commented “Look …, they are growing” as he squeezed her breast. The applicant then squeezed her other breast and said “that one is growing too”. (Count 3). The complainant did not say anything in response to the applicant grabbing her breasts. In 2008, the complainant was working at the store on a lunch shift. She was sitting on the bench with two other colleagues. The applicant walked over to them and started to massage her shoulders and neck. The applicant moved his hands down her back and spine. The applicant then moved his hands around and touched the sides of her breasts. The applicant’s thumbs massaged her back while his fingers wrapped around the side of her breasts. While the applicant did this he and the complainant had a normal conversation. The applicant stopped after a few minutes. (Count 4). On 7 July 2021, the complainant reported the matter to police.Count 5 – sexual assault – complainant C Between 7 July 2017 and 9 July 2018 the complainant was working at the store with the applicant. The applicant walked past her and pressed his body against her back as he walked past. (Count 5). In July 2021 the complainant reported the matter to police.Count 6-8 – common assault – complainant D Between 25 March 2017 and 27 February 2018, the complainant and the applicant were working a day shift together. They were standing at a bench and the applicant punched the complainant in her breast. The applicant said, “I can tell you’re wearing a push up bra”. (Count 6). The complainant told him to “fuck off” and asked how he could tell. He responded that he could tell from the way they felt and were sitting up. The complainant did not respond to him.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In my view, in the circumstances it cannot be said that the sentences on counts 6-9 were unreasonable or plainly unjust.Conclusion I propose the following order:1.Application for leave to appeal against sentence refused. BOND JA: I agree with the reasons for judgment of Morrison JA and with the order proposed by his Honour.

Ratio Decidendi

Legal Principle Established

Her Honour imposed the head sentence of 18 months imprisonment on counts 1, 3, 4 and 11. On each of the remaining sexual assault offences (counts 2, 5, 10, 12, 13 and 14) the sentence was 12 months. The four common assault offences (counts 6-9) received four months imprisonment. All sentences were concurrent and suspended after serving five months.Consideration The applicant does not challenge the sentence of 18 months’ or 12 months’ imprisonment on the sexual assault counts. Instead, it is contended that the sentence should have been immediately suspended. That is the order now sought in respect of those counts.[9][9]Outline paragraph 31(b). It is also submitted that the four months on each of the common assaults is manifestly excessive, given that such offences are often the subject of fines, not imprisonment.[10] The order sought in that respect is that the sentences of four months’ imprisonment be vacated and on each of counts 6-9 the applicant be: (i) convicted and not further punished, or (ii) fined globally.[11][10]Outline paragraph 24. Note, while the outline refers to a period of imprisonment of nine months for the common assaults, the applicant submitted during the hearing before this court that the four months imposed is manifestly excessive.[11]Outline paragraph 31(a). In R v Eaton[12] this Court said:“[71] In order to establish that the sentence is manifestly excessive, this Court must be satisfied that there ‘must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’. The mere fact that the sentence imposed is different from other sentences, and even markedly different from other sentences, does establish that it is manifestly excessive. As was said by this Court R v MCT:‘To succeed on an application based on manifest excess, it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is ‘unreasonable or plainly unjust’. Consistently with accepted understanding that there is no single correct sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.’”[12][2019] QCA 147 at [71]. Internal citation omitted. See, more recently, R v Abdullah [2023] QCA 189 at [28]. At the sentencing hearing the Crown submitted that a head sentence (to be imposed on some of the sexual assault offence) of two to three years’ imprisonment was open, suspended after serving six to nine months of actual imprisonment, with an operational period of three years.[13][13]AB 23 lines 12-19. At sentencing the applicant’s counsel submitted that a sentence of two years’ imprisonment[14] was appropriate, and 12 months’ imprisonment on the other sexual assault counts, but in each case wholly suspended.[15] Further, it was submitted that the common assault offences would receive “maybe six months’ imprisonment”.[16] The Crown agreed with that submission as to the common assault counts.[17][14]As the head sentence attached to counts 1, 3, 4 6 and 11.[15]AB 24 line 28, AB 25 lines 7-9.[16]AB 24 line 41 to AB 25 line 9.[17]AB 32 lines 1-17.