R v Lewis - [2022] QCA 64

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lewis [2022] QCA 64

PARTIES:

R
v
LEWIS, John Vincent
(applicant)

FILE NO/S:

CA No 45 of 2022
DC No 91 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Hervey Bay – Date of Sentence: 11 February 2022 (Sheridan J)

DELIVERED ON:

4 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

7 April 2022

JUDGES:

Morrison and Mullins JJA and Boddice J

ORDER:

That leave to appeal be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – OTHER MATTERS – where the applicant pleaded guilty to five counts of indecent treatment of a child under 16, under 12 – where the offences were committed against three separate complainants in 1979 – where the applicant was sentenced to an effective head sentence of 18 months imprisonment, suspended after serving three months of actual custody, for an operational period of 18 months – where the applicant committed offences against children between 1974 to 1986 – where the applicant was a teacher – where the applicant was sentenced in 1986 to three months imprisonment – where additional complainants came forward in connection with the Royal Commission into Institutional Responses to Child Sex Abuse – where the applicant was sentenced in 2017 in respect of 11 counts involving five female complainants – where the applicant received a sentence in 2017 of three years imprisonment, suspended after serving four months – where the applicant was sentenced in 2019 concerning a further 14 counts involving eight complainants – where in 2019 the applicant received a sentence of two years imprisonment, suspended after serving four months, for an operational period of two years – whether exceptional circumstances existed – whether the sentence was manifestly excessive

R v C; Ex parte Attorney-General (Qld)[2003] QCA 510, considered
R v McArdle (2004) 144 A Crim R 151; [2004] QCA 7, considered
R v Wright[1996] QCA 104, cited

COUNSEL:

A M Hoare for the applicant
E L Kelso for the respondent

SOLICITORS:

Morton and Morton Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I have had the advantage of reading the reasons for judgment of Boddice J. I agree with those reasons and with the order proposed by his Honour.
MULLINS JA: I agree with Boddice J.
BODDICE J: On 10 February 2022, the applicant pleaded guilty to five counts of indecent treatment of a child under 16, under 12. On 11 February 2022, the applicant was sentenced to an effective head sentence of 18 months imprisonment, suspended after serving three months, for an operation period of 18 months.
The applicant seeks leave to appeal his sentence. Should leave be granted, three grounds of appeal are relied upon by the applicant.
First, the sentencing judge erred in finding an accumulation of circumstances were not “exceptional”. Second, the sentencing judge erred by failing…

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 Lewis

Details

AGLC: R v Lewis [2022] QCA 64
Case: [2022] QCA 64
Decision Date: 4 May 2022

CaseChat Overview and Summary

The applicant in this case appealed against his sentence, claiming that the trial judge erred in several respects, leading to a sentence that was manifestly excessive. The applicant was convicted of five counts of indecent treatment of a child under 16, involving three complainants who were nine or ten years old when the offences were committed in 1979. The applicant, who was a teacher at the time, had a significant criminal history involving similar offences against children, spanning from 1974 to 1986. The Court of Appeal had to determine whether the trial judge erred in finding that the circumstances were not exceptional, failed to apply the principles of totality, or imposed a manifestly excessive sentence.

The Court found that the trial judge did not err in concluding that the circumstances were not exceptional, as the applicant had cooperated, expressed remorse, and demonstrated rehabilitation over a substantial delay and long period of non-offending. The Court also held that the trial judge properly applied the principles of totality, considering the total number of complainants, the persistent nature of the criminal conduct, and the brazen nature of the offending. The Court concluded that the overall effective head sentence of 5 years and 8 months imprisonment was consistent with comparable authorities and that a requirement for the applicant to serve 14 months in actual custody was not unjust. The Court held that the sentence imposed was not manifestly excessive in the circumstances.

The Court refused the applicant's appeal against his sentence. The Court held that the trial judge did not err in finding that the circumstances were not exceptional, properly applied the principles of totality, and imposed a sentence that was not manifestly excessive. The Court found that the overall effective head sentence of 5 years and 8 months imprisonment and the requirement for the applicant to serve 14 months in actual custody was consistent with comparable authorities and reflected the applicant's cooperation, expressed remorse, and rehabilitation. The Court concluded that the sentence imposed was appropriate in the circumstances.

Orders

Orders of the court

That leave to appeal be refused.

Background

Background to the litigation

First, the sentencing judge erred in finding an accumulation of circumstances were not “exceptional”. Second, the sentencing judge erred by failing to properly apply the principles of totality. Third, the sentence imposed was manifestly excessive in the circumstances.Background The applicant was born in 1942. He had a criminal history which included conviction for aggravated assault on a female child under 17 years of age, in 1986, and indecent treatment of children under 16 in 2017 and 2019. All of the previous offences concerned offending committed by the applicant whilst a teacher. The complainants were children in his class. The conviction in 1986 brought an end to the applicant’s teaching career. The convictions in 1986 concerned seven counts involving four complainants aged between nine and 10 years who had been touched on their vagina, buttocks, back and hip area under their clothing over a three month period in 1986. The applicant was sentenced to three months imprisonment. The convictions in 2017 concerned 11 counts involving five female complainants, also aged between nine and 10 years. In respect of two of the complainants, the applicant had digitally penetrated their vaginas on four occasions. The applicant was also convicted of two offences of common assault against a male complainant who said something after seeing one of the indecent dealings. All of the offences were committed between 1976 and 1978. The applicant was sentenced to an effective head sentence of three years imprisonment, suspended after serving four months, for an operational period of three years. The convictions in 2019 concerned 14 counts involving eight complainants aged between eight and 12 years. All of the offences were committed between 1974 and 1977. The offending involved rubbing the breast, buttocks or vaginas of the complainants. On two occasions, that conduct occurred underneath their clothing. The applicant was sentenced to an effective head sentence of two years imprisonment, suspended after serving four months, for an operation period of two years.Offences The offences the subject of this application were committed against three separate complainants in 1979. All three complainants were aged nine to 10 years. The applicant rubbed the first complainant’s vagina and thigh underneath her underwear and on two other occasions had put his hand up her school dress and rubbed her vagina underneath her underwear. The applicant lifted the dress of the second complainant, pulled open her underwear and looked at her vagina. The applicant put his hand up the third complainant’s dress inside her underwear and digitally penetrated her vagina.Sentencing remarks The sentencing judge recorded that the applicant had pleaded guilty to the offences, all of which had occurred in 1979 when he was a teacher of a grade 5 class. Each of the counts involved isolation of the complainant before placing his hands under their clothes. It was not uncommon for this touching to occur in front of the class. All three complainants described the conduct as persistent and as having occurred numerous times throughout the year. Each described lifelong consequences from his actions. Each referred to the fear, anxiety and trauma experienced in simply attending school.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Similarly, a requirement that the applicant serve a total of 14 months of those sentences of imprisonment in actual custody was not unjust. It properly reflected his cooperation, his expressed remorse and rehabilitation and the hardship occasioned by a return to actual custody on three separate occasions.Conclusion The applicant has not established specific error or that the sentence imposed was manifestly excessive in the circumstances.Order I would order that leave to appeal be refused.

Ratio Decidendi

Legal Principle Established

The respondent further submits that the overall effective head sentence was not manifestly excessive, nor was the requirement that the applicant serve further actual imprisonment. The overall effective head sentence was consistent with comparable yardsticks.[1] The applicant had, in total, been convicted of 37 indecent dealing offences relating to 20 complainants over a 12 year period between 1974 and 1986. The applicant was only required to serve a period of 14 months in actual custody for such offending.[1]R v McArdle [2004] QCA 7, R v C; Ex parte Attorney-General (Qld) [2003] QCA 510; R v Wright [1996] QCA 104.Consideration Whilst the applicant had, at the time of sentence, served three separate periods of actual custody, there was no error in the sentencing judge’s conclusion that that circumstance, allowing for the applicant’s early pleas of guilty, cooperation, rehabilitation in the context of substantial delay and long period of non-offending, did not amount to exceptional circumstances warranting a sentence that did not require the applicant to serve further time in custody. The applicant’s offending constituted an egregious breach of trust by a teacher acting in his professional capacity. All three young complainants were pupils in his class. One was the subject of digital penetration. All suffered lifelong consequences. Notwithstanding there was no need for personal deterrence, general deterrence and denunciation warranted the imposition of a sentence requiring actual custody. Further, an effective head sentence of 18 months for such offending was not manifestly excessive. Whilst that was imposed after three, separate sentences had been imposed for similar offending against other complainants, a consideration of the total number of complainants, the persistent nature of the criminal conduct engaged in over a period of 12 years and the brazen nature of that conduct, supports a conclusion that an overall effective head sentence of five years eight months imprisonment was consistent with comparable authorities. In McArdle, a sentence of six years imprisonment, with eligibility for release after two years, was not disturbed on appeal in respect of an ordained priest convicted of over 60 counts against 16 children throughout a period spanning 22 years. In R v C; Ex parte Attorney-General (Qld), a sentence of three and a half years imprisonment, suspended after 14 months for an operational period of four years, was not interfered with on appeal in relation to 34 counts of indecent dealing by a parish priest over a period of almost nine years against 22 children. Whilst that offending also involved a gross betrayal of trust, the applicant’s conduct involves substantially more complainants, more occasions of digital penetration and extended over a longer period of time. Similarly, a requirement that the applicant serve a total of 14 months of those sentences of imprisonment in actual custody was not unjust. It properly reflected his cooperation, his expressed remorse and rehabilitation and the hardship occasioned by a return to actual custody on three separate occasions.Conclusion

CITATION:	R v Lewis [2022] QCA 64
PARTIES:	R v LEWIS, John Vincent (applicant)
FILE NO/S:	CA No 45 of 2022 DC No 91 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Hervey Bay – Date of Sentence: 11 February 2022 (Sheridan J)
DELIVERED ON:	4 May 2022
DELIVERED AT:	Brisbane
HEARING DATE:	7 April 2022
JUDGES:	Morrison and Mullins JJA and Boddice J
ORDER:	That leave to appeal be refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – OTHER MATTERS – where the applicant pleaded guilty to five counts of indecent treatment of a child under 16, under 12 – where the offences were committed against three separate complainants in 1979 – where the applicant was sentenced to an effective head sentence of 18 months imprisonment, suspended after serving three months of actual custody, for an operational period of 18 months – where the applicant committed offences against children between 1974 to 1986 – where the applicant was a teacher – where the applicant was sentenced in 1986 to three months imprisonment – where additional complainants came forward in connection with the Royal Commission into Institutional Responses to Child Sex Abuse – where the applicant was sentenced in 2017 in respect of 11 counts involving five female complainants – where the applicant received a sentence in 2017 of three years imprisonment, suspended after serving four months – where the applicant was sentenced in 2019 concerning a further 14 counts involving eight complainants – where in 2019 the applicant received a sentence of two years imprisonment, suspended after serving four months, for an operational period of two years – whether exceptional circumstances existed – whether the sentence was manifestly excessive R v C; Ex parte Attorney-General (Qld)[2003] QCA 510, considered R v McArdle (2004) 144 A Crim R 151; [2004] QCA 7, considered R v Wright[1996] QCA 104, cited
COUNSEL:	A M Hoare for the applicant E L Kelso for the respondent
SOLICITORS:	Morton and Morton Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent