R v Green; Ex parte
[2021] QCA 153
•27 July 2021
SUPREME COURT OF QUEENSLAND
CITATION:
R v Green; Ex parte Attorney-General (Qld) [2021] QCA 153
PARTIES:
R
v
GREEN, Anthony Ian
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)FILE NO/S:
CA No 46 of 2021
DC No 110 of 2020DIVISION:
Court of Appeal
PROCEEDING:
Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT:
District Court at Gympie – Date of Sentence: 15 February 2021 (Cash QC DCJ)
DELIVERED ON:
Date of Order: 11 June 2021
Date of Publication of Reasons: 27 July 2021DELIVERED AT:
Brisbane
HEARING DATE:
11 June 2021
JUDGES:
Sofronoff P and Morrison JA and Flanagan J
ORDER:
Order delivered: 11 June 2021
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to twelve counts of indecent treatment of a child under 16, under 12, under care which were domestic violence offences – where in addition the respondent pleaded guilty to four counts of rape – where the respondent was sentenced to imprisonment for four and a half years for the rape offences and two years imprisonment for each of the other offences, to be served concurrently and to be suspended after serving a period of thirteen months with an operational period of five years – where the Attorney-General (Qld) appeals the sentence on the grounds that it was manifestly inadequate submitting that the sentence should be suspended after the respondent had served eighteen rather than thirteen months – where the Attorney-General (Qld) submitted that the sentencing judge erred in exercising their discretion by adopting a strictly mathematical approach to sentencing that was contrary to principle – whether the sentence was manifestly inadequate
Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44, applied
R v Hill, Bakir, Gray & Broad; Ex parte Director of Public Prosecutions (Cth) (2011) 212 A Crim R 359; [2011] QCA 306, cited
R v Ruiz; Ex parte Attorney-General (Qld)[2020] QCA 72, citedCOUNSEL:
C W Heaton QC, with A Nikolic, for the appellant
B J Power with T G Zwoerner for the respondentSOLICITORS:
Director of Public Prosecutions (Queensland) for the appellant
Legal Aid Queensland for the respondent
SOFRONOFF P: The respondent pleaded guilty to 12 counts of indecent treatment of a child under 16, under 12, under care and which were Domestic Violence Offences. He also pleaded guilty to four counts of rape, also Domestic Violence Offences. Cash QC DCJ sentenced him to imprisonment for four and a half years for the rape offences and to two years imprisonment for each of the other offences. The sentences were all concurrent. His Honour ordered that the sentences be suspended after the respondent had served 13 months with an operational period of five years.
The respondent was aged between 56 years and 61 years when he committed these offences. He was the step-grandfather of the two victims, who were two girls aged, between four and eight years when the respondent committed the offences. Counts 1 to 10 were committed by the respondent’s touching the victim on the vaginal area on the outside of her clothing. When this complainant was about six years old the respondent inserted his finger into her vagina on four occasions. These were the four counts of rape. The remaining two offences were committed against the younger complainant when she was about four years old. The respondent touched her on the vaginal area on the outside of her clothing.
The Attorney-General has appealed against these sentences on the ground that they were manifestly inadequate. She submitted that proper sentences would have resulted in the same head sentences but that the sentences should be suspended after the respondent had served 18 months rather than 13 months. The Attorney-General also submitted that the discretion miscarried also because the learned judge engaged in a strictly mathematical approach to sentencing and that this was contrary to principle.
This second point can be dealt with shortly. Cash QC DCJ said at the conclusion of his sentencing remarks that an appropriate sentence is one that would “see you released from jail after you have served one quarter” of the terms of imprisonment. The ground of appeal invokes what his Honour then said, namely that this would require a suspension after the respondent had served “16 months from today”. The calculation happened to be incorrect. His Honour immediately asked counsel whether his sums were right and Ms Nikolic, the prosecutor, corrected the judge and pointed out that the right number to achieve suspension after serving a quarter of the sentence was 13 and a half months. Aided by that submission his Honour ordered that the suspension take effect after the respondent had served 13 months. There was no impermissible “mathematical” approach. There is no merit in the point.
As to inadequacy, I am bound to point out that it is settled by high authority that an appeal against sentence by an Attorney-General “should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function … to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”[1] When manifest inadequacy is the ground, it is not enough to show only that the result arrived at below is markedly different from other sentences. Appellate intervention is justified if, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle.[2] Moreover, as this Court has recently said, if defence counsel, or even the judge, raises suspension of a sentence of imprisonment as a possibility, then if that course is regarded by the prosecution as beyond the scope of sentencing discretion, it is the duty of prosecuting counsel to say so to the sentencing judge. If such a submission is not made, then the prosecution should not be permitted to advance such a submission for the first time on appeal.[3]
[1]Griffiths v The Queen (1977) 137 CLR 293 at 310 per Barwick CJ.
[2]R v Hill, Bakir, Gray & Broad; Ex parte Director of Public Prosecutions (Cth) [2011] QCA 306 at [25] per Muir JA.
[3]R v Ruiz; Ex parte Attorney-General (Qld) [2020] QCA 72 at [18].
In this case it was the prosecutor who first raised the prospect of suspension as a proper part of the sentence that the judge should impose.[4] Defence counsel and the judge then adopted this course yet now the submission is made for the first time that a suspension of the term of imprisonment after the respondent had served 13 months of a four and a half year sentence could only have been the result of an error of principle in the exercise of discretion and that it is only a suspension after 18 months’ imprisonment that will do. In my respectful opinion this appeal has no merit and, for these reasons, I joined in the order dismissing the appeal.
[4]Albeit with a component of probation.
MORRISON JA: I have had the advantage of reading the draft reasons of Sofronoff P. Those reasons reflect my own for joining in the order made dismissing the appeal.
FLANAGAN J: I agree with Sofronoff P.
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