R v Hays - [2006] QCA 20

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hays [2006] QCA 20

PARTIES:

R
v
HAYS, Warwick Ray
(applicant)

FILE NO/S:

CA No 22 of 2006
DC No 56 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2006

JUDGES:

de Jersey CJ, McPherson and Jerrard JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – APPLICATION TO REDUCE SENTENCE – where applicant pleaded guilty to two counts of using the internet to procure a person whom he believed was under 16 years of age to engage in a sexual act and two counts of using the internet with the intent to expose a person he believed was under 16 to indecent matter – where the applicant was sentenced to 18 months imprisonment to be suspended after three months for an operational period of two years – whether sentence was manifestly excessive

Criminal Code 1899 (Qld), s 218A
Penalties and Sentences Act 1992 (Qld), s 9

R v Burdon; ex parte Attorney-General [2005] QCA 147; (2005) 153 A Crim R 104, considered
R v Campbell [2004] QCA 342; CA No 287 of 2004, 20 September 2004, considered
R v Kennings [2004] QCA 162; CA No 35 of 2004, 14 May 2004, cited
R v McGrath [2005] QCA 463; CA No 239 of 2005, 9 December 2005, cited

COUNSEL:

A J Glynn SC for the applicant
S G Bain for the respondent

SOLICITORS:

Douglas Law for the applicant
Director of Public Prosecutions (Queensland) for the respondent

de JERSEY CJ: The applicant pleaded guilty to two charges under s 218A(1)(a) of the Criminal Code 1899 (Qld) of using the internet with intent to procure a person he believed was under 16 years of age to engage in a sexual act; and two charges under s 218A(2)(b) of using the internet with intent to expose a person he believed was under 16 to indecent matter. He was sentenced to 18 months imprisonment to be suspended after three months, for an operational period of two years. He seeks leave to appeal on the ground the sentence was manifestly excessive. He has been in custody since being sentenced.

On 23 April 2005, the applicant entered a chat room on the Internet and made contact with a police officer posing as a 13 year old girl. The applicant believed he was communicating with a 13 year old. He said he was 29. He engaged in sexually inquisitive and explicit discussion with her, including giving her detailed, lewd and graphic instructions on how to masturbate herself. She presented as sexually uninformed, sometimes nervous and reluctant. Then via a web camera, he displayed to her a moving, “real time” image of himself, masturbating – apparently…

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 Hays

Details

AGLC: R v Hays [2006] QCA 20
Case: [2006] QCA 20
Decision Date: 10 February 2006

CaseChat Overview and Summary

In the case of R v Hays, the applicant was found guilty of using the internet to procure a person he believed to be under 16 years of age to engage in a sexual act and to expose a person he believed to be under 16 to indecent matter. The applicant was sentenced to 18 months imprisonment, suspended after three months, for an operational period of two years. The applicant applied for leave to appeal against the sentence, arguing that it was manifestly excessive.

The legal issues before the court included whether the sentence imposed was manifestly excessive and whether the court had exercised its discretion in an unreasonable manner. The court considered the nature and circumstances of the offences, the applicant's criminal history, and the principles of sentencing in reaching its decision.

The court held that the sentence was not manifestly excessive and that the court had exercised its discretion reasonably. The court found that the offences were of a serious nature and that the applicant's conduct demonstrated a significant breach of community standards. However, the court also noted that the applicant had pleaded guilty and shown remorse, and that there were circumstances that mitigated against a custodial sentence. The court held that the sentence imposed was appropriate in the circumstances and that the applicant had not demonstrated that the sentence was manifestly excessive.

The application for leave to appeal against sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Hays [2006] QCA 20
PARTIES:	R v HAYS, Warwick Ray (applicant)
FILE NO/S:	CA No 22 of 2006 DC No 56 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	10 February 2006
DELIVERED AT:	Brisbane
HEARING DATE:	6 February 2006
JUDGES:	de Jersey CJ, McPherson and Jerrard JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – APPLICATION TO REDUCE SENTENCE – where applicant pleaded guilty to two counts of using the internet to procure a person whom he believed was under 16 years of age to engage in a sexual act and two counts of using the internet with the intent to expose a person he believed was under 16 to indecent matter – where the applicant was sentenced to 18 months imprisonment to be suspended after three months for an operational period of two years – whether sentence was manifestly excessive Criminal Code 1899 (Qld), s 218A Penalties and Sentences Act 1992 (Qld), s 9 R v Burdon; ex parte Attorney-General [2005] QCA 147; (2005) 153 A Crim R 104, considered R v Campbell [2004] QCA 342; CA No 287 of 2004, 20 September 2004, considered R v Kennings [2004] QCA 162; CA No 35 of 2004, 14 May 2004, cited R v McGrath [2005] QCA 463; CA No 239 of 2005, 9 December 2005, cited
COUNSEL:	A J Glynn SC for the applicant S G Bain for the respondent
SOLICITORS:	Douglas Law for the applicant Director of Public Prosecutions (Queensland) for the respondent