R v JAD

Case [2021] QCA 184

SUPREME COURT OF QUEENSLAND

CITATION:

R v JAD [2021] QCA 184

PARTIES:

R
v
JAD
(applicant)

FILE NO/S:

CA No 10 of 2021
DC No 275 of 2019
DC No 276 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 4 December 2020 (Cash QC DCJ)

DELIVERED ON:

31 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

23 July 2021

JUDGES:

McMurdo and Mullins JJA and Brown J

ORDERS:

1.   Application for leave to amend the grounds of appeal is granted.

2.   Leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to an overall head sentence of four years – where the a parole eligibility date was set after sixteen months – where the applicant seeks leave to appeal the sentence on the grounds that the sentence is manifestly excessive – where the applicant challenges the severity of the custodial sentence rather than the head sentence – whether the sentence should be set aside – whether the applicant should be sentenced to four years’ imprisonment suspended after nine to twelve months

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – whether the learned sentencing judge erred in making findings of fact that the applicant’s autistic spectrum disorder did not contribute to the offending – whether the learned sentencing judge erred in making findings of fact that the applicant was able to understand the consequences of his actions or the harm he caused the complainants

Evidence Act 1977 (Qld), s 132C
Penalties and Sentences Act 1992 (Qld), s 9(4), s 9(6)
Youth Justice Act 1992 (Qld), s 140, s 144

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v Collard[2019] QCA 105, cited
R v Dowel; Ex parte Attorney-General (Qld)[2013] QCA 8, cited
R v Field[2017] QCA 188, considered
R v Goodger[2009] QCA 377, cited
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
R v Potts (2019) 88 MVR 156; [2019] QCA 74, cited
R v Tsiaras [1996] 1 VR 398; [1996] VicRp 26, considered
R v Verdins (2007) 16 VR 269; [2007] VSCA 102, applied
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited

COUNSEL:

T G Zwoerner for the applicant
S Cupina for the respondent

SOLICITORS:

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

  1. McMURDO JA:  I have had the advantage of reading the reasons of Brown J, in which the facts, the arguments and the judge’s sentencing remarks are set out.  I agree that the application for leave to appeal against sentence should be refused.  However…

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Details
AGLC
R v JAD [2021] QCA 184
Case
[2021] QCA 184
Decision Date

CaseChat Overview and Summary

The applicant, JAD, appealed against his sentence in the Supreme Court of Queensland, challenging the overall head sentence of four years and the parole eligibility date set after sixteen months. The applicant argued that the sentence was manifestly excessive and that the learned sentencing judge erred in making certain findings of fact related to his autistic spectrum disorder (ASD) and his understanding of the consequences of his actions. The court was required to decide whether the sentence was manifestly excessive or inadequate and whether the learned sentencing judge had erred in making certain findings of fact.

The court examined the sentencing remarks and the considerations made by the learned sentencing judge, including the applicant's plea of guilty, the circumstances of the offending, the aggravating features of the applicant's conduct, the fact that the most serious offending occurred when the applicant was a child, the application of certain sections of the Penalties and Sentences Act 1992 (Qld), the applicant's lack of prior criminal history, the impact of the convictions on the applicant's parents, and the applicant's ASD and Dr Palk's opinion. The court found that the learned sentencing judge had adequately considered the relevant factors and had not erred in making findings of fact regarding the applicant's ASD and his understanding of the consequences of his actions.

The court held that the applicant's argument that the sentence was manifestly excessive was not successful, as the learned sentencing judge had properly considered the relevant factors and had imposed a sentence that was appropriate in the circumstances. The court also found that the learned sentencing judge had not erred in making findings of fact regarding the applicant's ASD and his understanding of the consequences of his actions. Consequently, the application for leave to appeal the sentence was refused.

The final orders were that the application for leave to amend the grounds of appeal was granted, and leave to appeal was refused.

Orders

Orders of the court

1. Application for leave to amend the grounds of appeal is granted.

2. Leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the course of submissions, the sentencing judge asked defence counsel what particular aspects of the applicant’s condition made him more vulnerable to sexual offending, given that Dr Palk also stated those with ASD are no more likely to commit sexual offences than anyone else. His Honour noted that it appeared from Dr Palk’s report it had to be something more than just situational. His Honour also raised with counsel for the defendant that his Honour did not understand what the link was between the applicant’s ASD and his offending in the sense of what was it that drove the applicant or contributed to his offending in a manner that would reduce his moral culpability. His Honour noted that while Dr Palk had set out academic literature on the topic, Dr Palk had not set out his basis for his conclusion in relation to the applicant. His Honour further queried Dr Palk’s opinion that the applicant had a lack of understanding at the relevant time, given he told the complainants not to tell anyone what he did and made some threats if they did. In that regard, defence counsel stated “I don’t think there’s any suggestion that he never understood it was wrong, or that he only now understands it was wrong. It’s that he has now a full understanding and that he’s expressed a desire to never behave in a similar manner again.”Decision of learned sentencing Judge His Honour imposed a period of imprisonment of four years, with the applicant being eligible for parole after having served one-third of the sentence. During sentencing remarks his Honour took into account of:(a)the applicant’s plea of guilty before trial;(b)the circumstances of the offending for each offence;(c)the aggravating features of the applicant’s conduct, which I have referred to earlier;(d)the fact the most serious offending, namely that of rape, occurred when the applicant himself was a child;(e)that s 9(4) and s 9(6) of the Penalties and Sentences Act 1992 (Qld) applied to the offending as well as other matters in s9, and that the offending required that imprisonment for the offences included actual imprisonment, unless there were exceptional circumstances; (f)the applicant had no prior criminal history;(g)the convictions will have the result that the applicant will become a reportable offender; and(h)that the applicant’s parents support him, and have suffered from ill health, and the applicant’s incarceration would have some impact on them. As to the applicant’s condition of ASD and Dr Palk’s opinion, his Honour stated that:“You have seen Dr Palk, a psychologist, for a number of sessions. You told Dr Palk that you did not consider the consequences of your actions at the time, and in this regard Dr Palk says at paragraph 8.24:Due to his ASD and emotional and sexual immaturity, it is likely he would have been unable to be aware of or fully understand the consequences of his actions or the harm he was causing the complainants.I do not accept that. You warned both children not to report what you had done, and that clearly indicates that you were aware, at the time, that what you were doing was wrong, and that you would face adverse consequences if it were to be found out. It may be that you have developed a clearer understanding now, of just how wrong it was that you engaged in this behaviour. But I do not accept that you were unaware of it, at the time. If your ASD has contributed to your offending, a matter which has not been made clear to me, I cannot see that it is a significant matter in that it reduces your moral culpability to a degree that ought to result in a substantially different sentence than would otherwise be appropriate.I do not think your ASD places you in a position that is very different to anyone else who might be sentenced for offending of this kind. Dr Palk assessing you to be a low risk of reoffending. It does not appear to me that there has been any specific inquiry about whether you have any deviate sexual interests, but, perhaps, the fact that you have not offended, now, for many years, is sufficient to confirm Dr Palk’s opinion that you are a low risk of reoffending.”

Ratio Decidendi

Legal Principle Established

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