R v Espray - [2018] QCA 322

SUPREME COURT OF QUEENSLAND

CITATION:

R v Espray [2018] QCA 322

PARTIES:

R
v
ESPRAY, Richard Michael
(applicant)

FILE NO/S:

CA No 239 of 2018
DC No 51 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore – Date of Sentence: 31 August 2018 (Long SC DCJ)

DELIVERED ON:

20 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

15 November 2018

JUDGES:

Fraser and Morrison JJA and Crow J

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own pleas of guilty to grooming a child under 16, using electronic communication to procure a child under 16, indecent treatment of a child under 16 and abducting a child under 16 – where the applicant was sentenced to concurrent terms of imprisonment of 11 months, followed by two years probation (Counts 1 and 9), two years (Count 2 and 5), and two years and three months (Counts 6 and 8) with the terms of imprisonment on counts 2, 5, 6 and 8 suspended after 11 months, for an operational period of four years – where the applicant was 41 and 42 and the complainant was 12 and 13 at the time of the offending – where the applicant did not co-operate with the police investigation – where the applicant pleaded guilty once one additional count was removed but after the pre-recording of the complainant’s evidence – where the applicant argued that his imprisonment should have been suspended after serving one-third of the term of imprisonment – where the custodial period was less than one-half and only two months longer than one-third of the term of imprisonment – where the applicant argued that the lack of touching should have been considered a mitigating factor – where the applicant argued the sentencing judge did not give due consideration to the mitigating factors – where the applicant argued the sentencing judge incorrectly characterised some of the applicant’s breaches of bail – whether the sentence is manifestly excessive

R v Conway (2012) 223 A Crim R 244; [2012] QCA 142, applied
R v Goodall[2013] QCA 72, considered
R v Kitson[2008] QCA 86, considered
R v Ungvari[2010] QCA 134, considered
R v Waszkiewicz[2012] QCA 22, cited

COUNSEL:

The applicant appeared on his own behalf
N W Needham for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: The applicant was convicted on his pleas of guilty to grooming a child under 16 (Count 1), using electronic communication to procure a child under 16 (Counts 2 and 5), indecent treatment of a child under 16 (Counts 6 and 8) and abducting a child under 16 (Count 9). He was sentenced to concurrent terms of imprisonment of 11 months, followed by two years probation (Counts 1 and 9), two…

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 Espray

Details

AGLC: R v Espray [2018] QCA 322
Case: [2018] QCA 322
Decision Date: 20 November 2018

CaseChat Overview and Summary

The applicant, Espray, appealed against his sentence, arguing that it was manifestly excessive or inadequate. The applicant was convicted of multiple serious offences against a child, including grooming, using electronic communication to procure a child, indecent treatment, and abducting a child. The court sentenced him to a series of concurrent terms of imprisonment and probation, with some of the custodial sentences suspended after 11 months. Espray's appeal focused on the length of his imprisonment and the sentencing judge's consideration of mitigating factors and bail breaches.

The primary legal issue was whether the sentence was manifestly excessive or inadequate. Espray argued that his imprisonment should have been suspended after serving one-third of the term, given that the custodial period was less than one-half and only two months longer than one-third. He also contended that the lack of physical contact should have been considered a mitigating factor and that the sentencing judge did not adequately consider other mitigating factors and mischaracterised some of his bail breaches. The court had to assess whether these arguments warranted interference with the sentence imposed.

The court found that the sentence was not manifestly excessive. It noted that the applicant did not cooperate with the police investigation, and the offences were particularly serious given the age disparity between the applicant and the complainant. The court concluded that the sentencing judge had appropriately considered the aggravating and mitigating factors, including the lack of physical contact, and had not erred in characterising the bail breaches. As a result, the court dismissed the application for a new trial or appeal against the sentence.

The court's final order was that the application was refused. The sentence imposed was upheld as it was not manifestly excessive or inadequate, and the arguments presented by the applicant did not warrant any alteration to the original sentence.

Orders

Orders of the court

Application refused.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Espray [2018] QCA 322
PARTIES:	R v ESPRAY, Richard Michael (applicant)
FILE NO/S:	CA No 239 of 2018 DC No 51 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore – Date of Sentence: 31 August 2018 (Long SC DCJ)
DELIVERED ON:	20 November 2018
DELIVERED AT:	Brisbane
HEARING DATE:	15 November 2018
JUDGES:	Fraser and Morrison JJA and Crow J
ORDER:	Application refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own pleas of guilty to grooming a child under 16, using electronic communication to procure a child under 16, indecent treatment of a child under 16 and abducting a child under 16 – where the applicant was sentenced to concurrent terms of imprisonment of 11 months, followed by two years probation (Counts 1 and 9), two years (Count 2 and 5), and two years and three months (Counts 6 and 8) with the terms of imprisonment on counts 2, 5, 6 and 8 suspended after 11 months, for an operational period of four years – where the applicant was 41 and 42 and the complainant was 12 and 13 at the time of the offending – where the applicant did not co-operate with the police investigation – where the applicant pleaded guilty once one additional count was removed but after the pre-recording of the complainant’s evidence – where the applicant argued that his imprisonment should have been suspended after serving one-third of the term of imprisonment – where the custodial period was less than one-half and only two months longer than one-third of the term of imprisonment – where the applicant argued that the lack of touching should have been considered a mitigating factor – where the applicant argued the sentencing judge did not give due consideration to the mitigating factors – where the applicant argued the sentencing judge incorrectly characterised some of the applicant’s breaches of bail – whether the sentence is manifestly excessive R v Conway (2012) 223 A Crim R 244; [2012] QCA 142, applied R v Goodall[2013] QCA 72, considered R v Kitson[2008] QCA 86, considered R v Ungvari[2010] QCA 134, considered R v Waszkiewicz[2012] QCA 22, cited
COUNSEL:	The applicant appeared on his own behalf N W Needham for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent