R v Dundas - [2017] QCA 107

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dundas [2017] QCA 107

PARTIES:

R
v
DUNDAS, Gary Keith
(applicant)

FILE NO/S:

CA No 17 of 2017
DC No 2254 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 27 January 2017

DELIVERED ON:

30 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

11 May 2017

JUDGES:

Morrison and Philippides and McMurdo JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER – where the applicant was convicted on his guilty plea of one count of using a carriage service to access child pornography (count 1) and one count of possessing child exploitation material (count 3) – where the applicant was sentenced to two years imprisonment on each of counts 1 and 3 to be served concurrently, to be suspended after serving six months – where the applicant suffered from Asperger’s disorder and a number of physical illnesses – where the applicant’s application to adduce further evidence of the effect of the custodial sentence on him was refused – where the sentencing judge accepted that the applicant’s medical conditions would make incarceration specifically onerous for the applicant – whether the sentencing judge gave adequate weight to the applicant’s personal circumstances – whether the sentencing judge erred by finding that the applicant’s medical conditions could be appropriately managed in custody – whether requiring the applicant to serve a term of actual imprisonment was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his guilty plea of one count of using a carriage service to access child pornography (count 1) and one count of possessing child exploitation material (count 3) – where the applicant was sentenced to two years imprisonment on each of counts 1 and 3 to be served concurrently, to be suspended after serving six months in custody – where the majority of the material possessed by the applicant was Category 1 material – where the applicant accessed only a proportion of the material he possessed – where the applicant entered a timely plea of guilty – where the applicant cooperated with police – where the applicant had no prior criminal history – where the applicant suffered from a hoarding disorder – whether the sentencing judge failed to give adequate regard to the comparable appellate authority of R v Grehan – whether the applicant’s sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9

R v Crouch; R v Carlisle[2016] QCA 81, cited
R v Davis[2012] QCA 324, considered
R v Garget-Bennett [2013] 1 Qd R 547; [2010] QCA 231, considered
R v Grehan

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Dundas

Details

AGLC: R v Dundas [2017] QCA 107
Case: [2017] QCA 107
Decision Date: 30 May 2017

CaseChat Overview and Summary

In the case of R v Dundas, the applicant appealed against his sentence following his conviction on his guilty plea of one count of using a carriage service to access child pornography (count 1) and one count of possessing child exploitation material (count 3). The applicant was sentenced to two years imprisonment on each count, to be served concurrently, with a suspension after serving six months. The applicant, who suffered from Asperger’s disorder and a number of physical illnesses, sought to adduce further evidence of the effect of the custodial sentence on him, but this application was refused. The primary issue before the court was whether the sentencing judge adequately considered the applicant's personal circumstances and medical conditions, and whether the sentence imposed was manifestly excessive.

The court examined whether the sentencing judge had appropriately balanced the mitigating factors, including the applicant's medical conditions, against the need for punishment and deterrence. The court noted that the sentencing judge had acknowledged the specific difficulties the applicant would face in prison due to his conditions but ultimately decided that these could be managed in custody. The court also considered the comparable appellate authority of R v Grehan, where a similar sentence was imposed on an offender with chronic obsessive compulsive disorder. The court found that the sentencing judge had not given adequate weight to the significant mitigating factors that distinguished the applicant's case from Grehan's, leading to a manifestly excessive sentence.

In light of the court's findings, the application for leave to appeal against sentence was refused. The court held that the sentence imposed was manifestly excessive and that the applicant should be resentenced with immediate release, given the time already served in custody.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant has failed to demonstrate that the exercise of the sentencing discretion miscarried because the sentencing judge failed to have regard to all of the relevant mitigating features.Ground 4 - Comparable decisions It was submitted that, by arriving at the sentence he imposed, his Honour could not have had appropriate regard to the comparative cases, specifically Grehan. Grehan concerned the same offences for which the applicant was sentenced except that, in addition to the Commonwealth offence, Grehan was convicted of two counts of possession in breach of s 228D of the Qld Code. On appeal, he was resentenced to similar sentences as imposed on the applicant (two years imprisonment suspended after six months for an operational period of two years for each of the State offences and two years imprisonment with release upon recognizance after six months for the Commonwealth offence). His offending in accessing CEM took place over a three year period and related to over 40,000 images of child pornography. Grehan suffered from chronic obsessive compulsive disorder. The enormous number of images in his possession was found to be explicable by his psychiatric illness.[7] The images were not looked at after their initial collection and storage. Given his mental disorder, the case was not one where general deterrence featured largely. In resentencing Grehan, the Court of Appeal observed that the number of images collected and stored was vast and the period of offending (three years) showed some persistence but also took into account those matters and the fact that they would make his time in custody considerably more difficult.[7](2010) 199 A Crim R 408 at [22]. In resentencing Grehan, the Court of Appeal stated that no separate consideration was given to the Commonwealth offence and that, although it carried a longer maximum penalty, the Court was not asked on appeal to differentiate between the State and Commonwealth offences with regard to penalty. Grehan had already made a commitment to psychiatric treatment and psychological counselling meaning that the need for parole supervision was not obvious. He had formed a stable and supportive relationship which appeared to be a positive aspect of his rehabilitation, given his past isolation. The applicant submitted, as points of distinction in his favour, that Grehan possessed more images than the applicant but fewer videos. Grehan admitted to paying to download some of the material,[8] which was not a feature present in the applicant’s case. In relation to the Commonwealth access offence, Grehan’s access occurred over a longer period (nearly three years) and included downloading some 32 videos, as opposed to the three videos accessed by the applicant. Further, the combination of medical conditions present in the applicant’s case were not present in Grehan. In all of the circumstances and taking into account the subjective mitigating factors, it was submitted that a proper view of the facts in each case should have resulted in the applicant receiving a sentence lower than that ordered in Grehan, notwithstanding the increase in maximum penalty for the possession offences since Grehan. In sentencing the applicant to the same penalty as in Grehan, his Honour failed to have regard to the significant mitigating factors in the applicant’s favour which positively distinguished his case from that of Grehan. The sentence imposed was thus manifestly excessive and the applicant should be resentenced with immediate release given the time already served in custody.[8](2010) 199 A Crim R 408 at [13].Consideration

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Dundas [2017] QCA 107
PARTIES:	R v DUNDAS, Gary Keith (applicant)
FILE NO/S:	CA No 17 of 2017 DC No 2254 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 27 January 2017
DELIVERED ON:	30 May 2017
DELIVERED AT:	Brisbane
HEARING DATE:	11 May 2017
JUDGES:	Morrison and Philippides and McMurdo JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER – where the applicant was convicted on his guilty plea of one count of using a carriage service to access child pornography (count 1) and one count of possessing child exploitation material (count 3) – where the applicant was sentenced to two years imprisonment on each of counts 1 and 3 to be served concurrently, to be suspended after serving six months – where the applicant suffered from Asperger’s disorder and a number of physical illnesses – where the applicant’s application to adduce further evidence of the effect of the custodial sentence on him was refused – where the sentencing judge accepted that the applicant’s medical conditions would make incarceration specifically onerous for the applicant – whether the sentencing judge gave adequate weight to the applicant’s personal circumstances – whether the sentencing judge erred by finding that the applicant’s medical conditions could be appropriately managed in custody – whether requiring the applicant to serve a term of actual imprisonment was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his guilty plea of one count of using a carriage service to access child pornography (count 1) and one count of possessing child exploitation material (count 3) – where the applicant was sentenced to two years imprisonment on each of counts 1 and 3 to be served concurrently, to be suspended after serving six months in custody – where the majority of the material possessed by the applicant was Category 1 material – where the applicant accessed only a proportion of the material he possessed – where the applicant entered a timely plea of guilty – where the applicant cooperated with police – where the applicant had no prior criminal history – where the applicant suffered from a hoarding disorder – whether the sentencing judge failed to give adequate regard to the comparable appellate authority of R v Grehan – whether the applicant’s sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9 R v Crouch; R v Carlisle[2016] QCA 81, cited R v Davis[2012] QCA 324, considered R v Garget-Bennett [2013] 1 Qd R 547; [2010] QCA 231, considered R v Grehan