R v Free; Ex parte Attorney-General (Qld) [2020] QCA 58
PARTIES:
R v FREE, Sterling Mervyn EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (respondent)(appellant)
FILE NO/S:
CA No 285 of 2019 DC No 1632 of 2019
DIVISION:
Court of Appeal
PROCEEDING:
Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT:
District Court at Brisbane – Date of Sentence: 11 October 2019 (Dick SC DCJ)
DELIVERED ON:
31 March 2020
DELIVERED AT:
Brisbane
HEARING DATE:
6 March 2020
JUDGES:
Philippides JA and Bowskill and Callaghan JJ
ORDERS:
1. The appeal be allowed.
2. The sentence imposed at first instance be varied by varying the sentence imposed on count 1 to a sentence of imprisonment of eight years.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent was convicted, on his own pleas of guilty, of taking a child under 12 years for an immoral purpose (count 1), deprivation of liberty (count 2) and indecent treatment of a child under 12 (count 3) – where the respondent was sentenced to eight years’ imprisonment with eligibility for parole after two years and eight months on count 1, and two years’ imprisonment on each of counts 2 and 3, all to be served concurrently – where the seven year old child victim was shopping with her mother in K-mart – where the respondent was found to have followed the child in the shop for about 20 minutes, before luring her away – where the respondent’s conduct was found to be predatory and to have involved some premeditation – where the respondent then drove the child for about 30 minutes to a secluded area of bushland, sexually abused her, and kept the child for almost an hour and a half before returning her to the shopping centre – where the respondent was identified, but then made extensive admissions to the police about the offending – where the respondent admitted to a psychological trigger for the offending, saying that he knew what he was doing was wrong, but “the urges just kicked in” and were overwhelming – where the respondent disclosed long-standing paedophilic ideation to a forensic psychologist – where the offending has had a severely traumatising effect on the child – where the respondent indicated he would plead guilty at a very early stage, including before DNA evidence was available – whether the sentence imposed was manifestly inadequate – whether the sentencing judge erred in failing to make a serious violent offence declaration in respect of count 1 as part of the sentence, because of a focus on the need for there to be factors which take the offending “outside the norm” for the type of offence, rather than a broader focus on whether the case presented features which required the delay of the offender’s parole eligibility to protect the public from the risk of future offending – whether the sentencing judge erred in making a recommendation…
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.
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Details
AGLC
R v Free; Ex parte [2020] QCA 58
Case
[2020] QCA 58
Decision Date
CaseChat Overview and Summary
The respondent, Free, appealed against his sentence following his conviction on three counts of serious offences against a young child. The charges included taking a child under 12 years for an immoral purpose, deprivation of liberty, and indecent treatment of a child under 12. The appeal focused on the severity and adequacy of the sentence imposed, specifically the eight-year imprisonment term with parole eligibility after two years and eight months on the first count, and concurrent two-year sentences for the other counts.
The legal issues in the appeal centred on whether the sentence was manifestly inadequate, whether the sentencing judge erred by not making a serious violent offence declaration, and if there was an error in the recommendation for parole eligibility. The appeal also questioned the appropriateness of the starting point for the sentence, which was agreed upon by both parties at the initial sentencing.
The court found that the sentence was indeed manifestly inadequate given the nature and impact of the offences. It held that the sentencing judge had erred by not making a serious violent offence declaration and by setting a parole eligibility period that was not sufficiently delayed to protect the public. The starting point for the sentence was also considered too low, not reflecting the gravity of the crimes committed. Consequently, the appeal was allowed and the sentence was varied to an eight-year imprisonment term on count 1, with the original concurrent sentences for the other counts remaining unchanged.
Orders
Orders of the court
1. The appeal be allowed.
2. The sentence imposed at first instance be varied by varying the sentence imposed on count 1 to a sentence of imprisonment of eight years.