R v M - [1997] QCA 470

[1997] QCA 470

COURT OF APPEAL

PINCUS JA
McPHERSON JA
de JERSEY J

CA No 347 of 1997

THE QUEEN

McCONACHIE, Michael Shane Applicant

BRISBANE

DATE 28/10/97

JUDGMENT

PINCUS JA: This is an application for leave to appeal against sentence. The applicant, who was 27 years of age when he committed the relevant offences, pleaded guilty to eight counts involving sexual contact with a four-year-old boy, some of the acts in question having been committed in the presence of the boy's half-sister. The applicant was sentenced in the District Court to five years imprisonment for count 1, which charged that he maintained an unlawful sexual relationship with a child under the age of 16 years with circumstances of aggravation being that the child was under the age of 12 years and that the child was in the care of the applicant. In respect of other counts, three years imprisonment was imposed and in respect of still others, 12 months. All of the sentences were made concurrent and there was a recommendation for parole after 18 months. The offences will be described in more detail, but in one sense the details are not of great consequence because it seems that in ordinary circumstances the penalties imposed could not be seriously argued to be excessive, considering the nature of the offences.

The factor which made the fixation of appropriate sentences a difficult one for the primary judge was that it was common ground that the applicant has, and had at relevant times, psychiatric difficulties. The judge had before him reports from two psychiatrists, Dr Jim Rodney and Dr Donald Grant.

Dr Rodney said in his reports that the applicant had been a patient of his for many years. He described him as a subnormal man who had been referred to the doctor because of difficulties in controlling his sexual impulses. Dr Rodney remarked:

"I have attempted to treat this over a number of years but every now and again the disorder does tend to exacerbate."

He had been treated with some success with Melleril, a major tranquilliser, but Dr Rodney said he had no contact with the applicant between May 1996 and January 1997. It was during that period that the offences in question were committed, that is, between October and December 1996. Dr Rodney said that the applicant had always had an attraction to children and had difficulty in forming any adult sexual relationships. The doctor had some doubts about what he called the applicant's "ability to conceptualise the whole concept of right and wrong". In February 1997, Dr Rodney reported that the applicant was back in the doctor's care and taking his medication and he said "I am more optimistic about his control at present".

Dr Grant, the other psychiatrist, saw the applicant at the request of the Legal Aid Office in June 1997. In discussion with Dr Grant the applicant said, in effect, that his having sexually abused the little boy was connected with the applicant having had…

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 M

Details

AGLC: R v M [1997] QCA 470
Case: [1997] QCA 470
Decision Date: 28/10/1997

CaseChat Overview and Summary

The case of R v McConachie involves an application for leave to appeal against the sentence imposed on Michael Shane McConachie, who was convicted of multiple counts of sexual contact with a four-year-old boy. The application was heard by the Court of Appeal, comprising Pincus JA, McPherson JA, and de Jersey J. The primary concern of the court was whether the sentence of five years imprisonment, which was to be served concurrently with other sentences, was excessive considering the mitigating factors such as the applicant’s psychiatric difficulties and his plea of guilty.

The legal issues before the court included whether the sentence adequately reflected the mitigating circumstances and the need for community protection. The court had to consider the nature of the offences, which involved inappropriate sexual acts with a young child, and the mitigating factors, including the applicant's intellectual handicap and diagnosed homosexual paedophilia. The primary judge had to balance the need to mark society's disapproval of the offences with the imperative of ensuring the rehabilitation of the offender.

In delivering the judgment, Pincus JA noted that the primary judge was aware of the mitigating factors but also emphasized the necessity to mark community disapproval and ensure future supervision during parole. The Court of Appeal found that the sentence imposed was not excessive and was a reasonable approach to the complex issue presented. The court acknowledged the difficulty in determining an appropriate sentence due to the nature of the offences and the applicant's psychiatric conditions, but ultimately concluded that the sentence was justified. Consequently, the application for leave to appeal was dismissed.

Orders