R v Hamstead - [1999] QCA 33

99.33

COURT OF APPEAL
McMURDO P
McPHERSON JA

WILSON J

CA No 433 of 1998
THE QUEEN
v.

GEOFFREY HAMSTEAD

Applicant

BRISBANE
..DATE 23/02/99
230299 T12-13/HMH8 M/T COA29/99
McPHERSON JA: The applicant for leave to appeal against
sentence is Geoffrey Hamstead, who was convicted after a trial
in the Maroochydore District Court of committing sexual
offences on a young girl in the presence of her younger
sister.

The offences of which he was convicted, and the sentences imposed in each case, are as follows. In the case of count 1, he was sentenced to imprisonment for six months for indecently dealing with a child under the age of 16 with a circumstance of aggravation. With respect to counts 2, 3 and 4 the sentence was three years' imprisonment, to be suspended after two years with an operational period of three years. That sentence was imposed in respect of acts of indecent dealing with a child under 16, again with a circumstance of aggravation. As regards count 5, the sentence was two years' imprisonment for procuring a child under 16 to commit an indecent act with a circumstance of aggravation. Counts 6 and 8, which were charges of exposing a child under 16 to an indecent picture with an accompanying circumstance of aggravation, attracted a term of six months' imprisonment; and

counts 7, 9, 10 and 11, which charged exposing a child under

16 to an indecent act with a circumstance of aggravation,

attracted two years imprisonment.

All sentences were ordered to be served concurrently, which
had the result of producing an effective head sentence of
three years' imprisonment, which, as I have said, was ordered
to be suspended after two years for an operational period of
three years.
230299 T12-13/HMH8 M/T COA29/99

The circumstances of the offences themselves can be summarised as follows. They took place on two separate days during or over a three-day period in March 1998. The offences involved indecently dealing with a 10 year old in the presence of her seven year sister in the applicant's caravan at a caravan park where he lived.

Count 1 charged the act of rubbing the breasts of the 10 year old child, which he did in the presence of her seven year old sister on 23 March 1998. Two days later on 25 March 1998 the applicant indecently dealt with the older girl again, on this occasion by placing his finger in her vagina, by licking her

vagina, and by inserting a cigarette in her vagina. Those
were the subject of counts 2, 3 and 4. The offences occurred
in the presence of her seven year old sister, which was what
gave rise to counts 9, 10 and 11. On that occasion too, the
applicant took the hand of the older girl and placed it on his
penis, which was charged as count 5. In addition, he exposed
the two children to an indecent picture, constituting the
charges in counts 6 and 8.

The applicant's personal circumstances are that…

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 Hamstead

Details

AGLC: R v Hamstead [1999] QCA 33
Case: [1999] QCA 33
Decision Date: 23/02/1999

CaseChat Overview and Summary

The Court of Appeal heard an application from Geoffrey Hamstead, who was appealing against his sentence following a conviction for multiple sexual offences against a young girl. Hamstead was found guilty of multiple counts of indecently dealing with a child under 16, procuring a child under 16 to commit an indecent act, and exposing a child under 16 to indecent acts and pictures. The appeals court was asked to determine whether the original sentencing judge had erred in suspending the three-year sentence after two years, effectively denying Hamstead the opportunity to apply for parole until he had served 18 months of the head sentence.

The key legal issue was whether the original sentencing judge's decision to suspend the sentence after two years was justified under the principles established in R v. Griinke. The court considered whether there were special circumstances that warranted postponing the parole eligibility beyond the statutory halfway mark, as required by the principles from Griinke. The court examined the nature and gravity of the offences, Hamstead's lack of remorse and absence of a plea, and his personal circumstances, including his health and criminal history. The court concluded that the suspension of the sentence was not justified, and amounted to imposing a head sentence of four years, which was deemed excessive.

The Court of Appeal found that the original sentence should be varied by removing the order for suspension of the three-year sentence after two years. The court upheld the rest of the sentences and noted that the three-year head sentence was appropriate given the nature of the offences. The court decided not to recommend any special provisions for parole eligibility. The final order confirmed the original sentences with the exception of the suspension order, which was removed, and clarified that Hamstead must not commit another offence punishable by imprisonment within a period of three years to avoid dealing with the suspended term of imprisonment.

Orders