R v Foy & A-G - [2001] QCA 209

[2001] QCA 209

COURT OF APPEAL

THOMAS JA
HELMAN J
ATKINSON J

CA No 21 of 2001

THE QUEEN

MARK ANTHONY FOY Respondent

AND

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

..DATE 31/05/2001

JUDGMENT

ATKINSON J: The respondent was convicted in the District Court on 22 January 2001 on his own plea of guilty on 12 counts of indecent treatment of a child under 12 and one count of indecent treatment of a child under the age of 16. Counts 1 to 4 involved events which occurred on 13 October 1999 and counts 5 to 13 involved events which occurred six days later on 19 October 1999.

Counts 1 to 4 occurred at Regents Park at Morningside where two sisters, one aged 10 and one aged 11, went to the park after school with an adult male. They went into a stormwater drain to look at graffiti and the respondent followed them. The 11 year old asked him for a smoke and he requested that she kiss him on the lips in return which she did. That formed count 1 on the indictment for which the respondent was sentenced to six months imprisonment.

Count 2 refers to events that happened after the 11 year old left the area and the respondent put his hands down the 10 year old's shorts and touched her on the vagina. The respondent was sentenced to three and a half years imprisonment on that charge. The respondent then pulled his own pants down and masturbated in front of the 10 year old. That constituted count 3 of the indictment to which the respondent was sentenced to two years imprisonment.

He then knelt down and licked the 10 year old between the legs. That offence constituted count 4 on the indictment to which the respondent was also sentenced to three and a half years imprisonment.

The second series of offences occurred at a park at Deception Bay on 19 October 1999. Seven children aged between six and twelve years were playing together in the park. Four boys went to the public toilet and the respondent turned up and went into one of the cubicles. Some of the boys were watching him through a hole in the toilet door and saw him sitting on the toilet masturbating. The boys then had a discussion about the size of their penises and they heard the respondent say, "Well, I've got a bigger one." He then opened the toilet door and masturbated in front of a six year old boy. That constituted count 5 on the indictment to which the respondent was sentenced to a term of imprisonment for two years.

The respondent then took the six year old's hand, put it on the respondent's penis and rubbed it up and down. That constituted count 6 on the indictment to which the respondent was sentenced to three years imprisonment.

Count 7 involved another boy who was seven years old. That child looked through the hole in the door and saw the…

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 Foy & A-G

Details

AGLC: R v Foy and A-G [2001] QCA 209
Case: [2001] QCA 209
Decision Date: 31/05/2001

CaseChat Overview and Summary

The appeal in R v Foy & A-G was brought by the Attorney-General of Queensland against the sentence imposed on Mark Anthony Foy, who was convicted of multiple counts of indecent treatment of children under 12 and under 16. The respondent had pleaded guilty to the charges, which included acts of sexual exposure and touching in public places where children were present. The sentencing judge had imposed concurrent terms of imprisonment, which the Attorney-General argued were insufficient given the severity and pattern of the respondent's offending.

The legal issue before the Court of Appeal was whether the sentences imposed by the District Court were outside the proper range of sentencing discretion. The Court had to consider the nature and circumstances of the offences, the respondent's criminal history, and the purposes of sentencing as outlined in the Penalties and Sentences Act 1992. The Court needed to determine if the sentences adequately reflected the need for punishment, deterrence, denunciation, and community protection.

The Court of Appeal found that the maximum sentence of three and a half years on certain counts was indeed outside the proper range of sentencing discretion. The Court noted the respondent's extensive history of similar sexual offences, his persistence in committing these acts in public places, and the significant impact on the victims. While acknowledging the mitigating factors such as the respondent's guilty pleas and the avoidance of a trial, the Court emphasised that the sentences should reflect the seriousness of the offences and the need to protect the community. The Court substituted the sentences with a term of four and a half years imprisonment on specific counts, while recommending that the respondent undergo psychological assessment and treatment in custody. The appeal was allowed, and the substituted sentences were imposed accordingly.

Orders