R v Harrison; Ex parte

Case [2021] QCA 279

SUPREME COURT OF QUEENSLAND

CITATION:

R v Harrison; Ex parte Director of Public Prosecutions (Cth) [2021] QCA 279

PARTIES:

R
v
HARRISON, Rex George
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(respondent)
(appellant)

FILE NO/S:

CA No 271 of 2020
SC No 1617 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Director of Public Prosecutions (Cth)

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 4 November 2020 (Bond J)

DELIVERED ON:

14 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

21 May 2021

JUDGES:

Fraser and Mullins JJA and Mazza AJA

ORDERS:

1.   The appeal is allowed.

2.   The sentences imposed by Bond J on 4 November 2020 are set aside.

3.   The respondent is resentenced as follows:

Count 1: 7 years' imprisonment

Count 2: 12 months' imprisonment

Count 4: 6 months' imprisonment

Count 5: 12 months' imprisonment

Count 7: 6 months' imprisonment.

4.   The sentences on counts 2, 4, 5 and 7 are all to commence on 4 November 2020. The sentence on count 1 is cumulative on the sentence on count 2, and is to commence on 4 November 2021.  There will be a single non‑parole period of 5 years to commence on 4 November 2020.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY – where the respondent pleaded guilty to five counts related to sexual offences involving children outside Australia – where the respondent was sentenced to a total effective sentence of 6 years and 6 months’ imprisonment with a non-parole period of 2 years and 6 months – whether the sentence imposed and the length of the non-parole period were manifestly inadequate

Crimes Act 1914 (Cth), s 20(1)(b), s 16A

Baden v The Queen [2020] NSWCCA 23, distinguished
Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18, considered
DPP (Cth) v Beattie (2017) 327 FLR 71; [2017] NSWCCA 301, distinguished
Hawke v The Queen [2019] VSCA 276, distinguished
House v The King (1936) 55 CLR 499; [1935] HCA 40, applied
Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15, considered
Merrill (a pseudonym) v The Queen [2018] VSCA 62, considered
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, applied
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26, applied
R v Ellis (1986) 6 NSWLR 603, considered
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered
R v Kruezi (2020) 6 QR 119; [2020] QCA 222, cited
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21, cited

COUNSEL:

L K Crowley QC, with J Goldie, for the appellant
D A Holliday QC, with C J Lovel, for the respondent

SOLICITORS:

Director of Public Prosecutions (Commonwealth) for the appellant
Legal Aid Queensland for the respondent

  1. THE COURT:  This is an appeal brought by the Commonwealth…

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Details
AGLC
R v Harrison; Ex parte [2021] QCA 279
Case
[2021] QCA 279
Decision Date

CaseChat Overview and Summary

The case of R v Harrison is an appeal by the Crown against the sentence imposed on the respondent by Bond J. The respondent had pleaded guilty to multiple counts of sexual offences involving children in the Philippines. The offences included sexual intercourse with a child aged between 14 and 15 years on multiple occasions. The court was tasked with determining whether the sentence imposed by the sentencing judge was manifestly inadequate. The Crown argued that the original sentence of 6 years and 6 months’ imprisonment with a non-parole period of 2 years and 6 months did not adequately reflect the gravity of the offences committed.

The court considered various factors in determining the appropriate sentence. These included the nature and circumstances of the offences, the vulnerability of the victims, and the need for deterrence and denunciation. The court found that the original sentence did not sufficiently reflect the seriousness of the crimes, particularly given the repeated nature of the offences and the age of the victims. The court also noted the need to ensure that the sentence serves as a deterrent to others who might commit similar offences.

As a result, the appeal was allowed, and the respondent was resentenced. The court imposed a total effective sentence of 8 years’ imprisonment, with a non-parole period of 5 years. The sentences on counts 2, 4, 5, and 7 were to commence on 4 November 2020, while the sentence on count 1 was to commence on 4 November 2021, and was to be served cumulatively on the sentence on count 2. This resentence was intended to appropriately reflect the gravity of the respondent's crimes and to serve the interests of justice.

Orders

Orders of the court

1. The appeal is allowed.

2. The sentences imposed by Bond J on 4 November 2020 are set aside.

3. The respondent is resentenced as follows:

Count 1: 7 years' imprisonment

Count 2: 12 months' imprisonment

Count 4: 6 months' imprisonment

Count 5: 12 months' imprisonment

Count 7: 6 months' imprisonment.

4. The sentences on counts 2, 4, 5 and 7 are all to commence on 4 November 2020. The sentence on count 1 is cumulative on the sentence on count 2, and is to commence on 4 November 2021. There will be a single non‑parole period of 5 years to commence on 4 November 2020.

Background

Background to the litigation

For the reasons that follow, we would allow the appeal and resentence the respondent.The facts A statement of facts was tendered to the sentencing judge on 4 November 2020. We will first set out the facts of counts 1, 5 and 7, all of which relate to the complainant R, and then the facts of counts 2 and 4, which relate to complainants B and M, respectively.Counts 1, 5 and 7 At all material times, the respondent, an Australian citizen, was 62 or 63 years of age. The victim of counts 1, 5 and 7 was a Filipino girl aged between 14 and 15 years, R. She lived in Angeles City in the Philippines. Count 1 concerned three occasions between about 1 November 2016 and 2 August 2017, when the respondent engaged in sexual intercourse with R in a hotel room in Angeles City. The first of these occasions occurred on an unknown date between 1 November 2016 and 30 November 2016. The respondent met R, who was accompanied by a friend, A. He invited them both to his hotel room. Prior to their arrival at the hotel, the respondent bought shirts for R and A. At around 11.00 pm, they arrived at the respondent's hotel room. The respondent asked R and A for a massage. He told R that he wanted to 'touch' her because he believed she was a virgin and stated he wanted to have sex with her. R refused to have sex with him. The respondent then placed his hand inside R's shorts and inserted his fingers into her vagina. R tried to stop the respondent and to remove his hand, but he refused to stop. The respondent also placed his hand inside her shirt and touched her breast. After this conduct finished, the respondent paid R 500 pesos (about AU$14.64). R and A then left the room. On 22 July 2017, the respondent returned to the Philippines and stayed at the same hotel in Angeles City. Both before and after his arrival in the Philippines, the respondent communicated with R via Facebook Messenger. These discussions were highly sexualised and graphic. His Honour was provided with extracts from the messages which show, on the respondent's part, a desire to 'pop' R's 'cherry', engage in cunnilingus with her and have her engage in fellatio with him. The respondent arranged for R to meet him at his hotel room at about 4.00 pm on 30 July 2017. In a Facebook message to R dated 26 July 2017, he said that when he meets her he needed 'to see blood' and asked how much he would have to pay R to 'pop' her 'cherry'. The second act of sexual intercourse took place on 30 July 2017, R and M arrived at the respondent's hotel room. R was reluctant to remove her clothes. The respondent removed her shirt and bra and offered to give her money. He then told her to remove her shorts and underwear, which she did. The respondent touched R's breasts and vagina. He attempted to insert his penis into her mouth, but R refused. The respondent then inserted his penis into her vagina. Once the act of sexual intercourse ended, R put her underwear and shorts back on and lay on the bed with the respondent, without her shirt and bra on. The respondent hugged and kissed her. While they were in bed together, R used the respondent's mobile telephone to take a photograph of them. Later, the respondent paid R 1,000 pesos (about AU$29.27) and $5.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

We would impose a single non‑parole period. In our opinion, a single non‑parole period of 5 years' imprisonment is the minimum time that justice requires the respondent to serve, having regard to all of the circumstances of the offence.Conclusion and orders For the reasons we have given, the appeal should be allowed. The orders we make are as follows:1. The appeal is allowed.2. The sentences imposed by Bond J on 4 November 2020 are set aside. 3. The respondent is resentenced as follows:Count 1:7 years' imprisonmentCount 2:12 months' imprisonmentCount 4:6 months' imprisonmentCount 5:12 months' imprisonmentCount 7:6 months' imprisonment4.The sentences on counts 2, 4, 5 and 7 are all to commence on 4 November 2020. The sentence on count 1 is cumulative on the sentence on count 2, and is to commence on 4 November 2021. There will be a single non‑parole period of 5 years to commence on 4 November 2020. For the avoidance of any doubt, the respondent is resentenced to a total effective sentence of 8 years' imprisonment to commence on 4 November 2020, with a non‑parole period of 5 years to commence on 4 November 2020.

Ratio Decidendi

Legal Principle Established

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